Born Liars (11 page)

When the veteran FBI man Larry Smith first reviewed the case materials he was inclined to give Norfolk's police detectives the benefit of the doubt. After all, why would four men confess to a crime they didn't commit – especially a crime as heinous as this? But the more he read, the more he became convinced of their innocence. There was no physical evidence linking any of the convicted men to the crime, and nothing in their backgrounds to suggest they might be prone to outbreaks of frenzied brutality. The convictions were based entirely on the men's confessions, which had been extracted by interrogators using lies and threats, and were riddled with contradictions and implausibilities.
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‘The confession should not be the end of the investigation,' Smith told
Time
magazine. ‘You should corroborate the facts and circumstances of the confessions with the crime scene.'

In this case, all the facts about the crime scene suggested a conclusion different to the one reached by the jury. Smith and twenty-five other ex-FBI agents wrote to Virginia governor Tim Kaine asking him to grant pardons to the four men. ‘In rare cases,' they wrote, powerful interrogation techniques ‘can produce false confessions.' In the last months of his term, Kaine issued conditional pardons to the three men still in prison (Eric Wilson, who had been convicted of rape only, had already been released after serving over eight years of his sentence, and wasn't pardoned). The men were allowed to leave prison but their convictions remained; they were placed on parole for twenty years, and required to register as sex offenders wherever they went.
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Kaine confessed to struggling with the decision. ‘They're asking for a whole series of confessions . . . to all be discarded,' he told a radio show in 2008. ‘That is a huge request.'

Kaine wasn't alone in finding it almost impossible to believe that somebody would confess to a crime they hadn't committed. Saul Kassin, a professor of psychology at John Jay College of Criminal Justice in New York, is an expert on the psychology of false confessions. Wherever he gives lectures on the subject he hears the same response from audience members: ‘Well, I would never do that. I would never confess to something I didn't do.' People apply the same logic in the jury room, he says; a confession is an overwhelmingly powerful piece of evidence. Analysis of hundreds of trials shows that a conviction is far more likely to be made when a confession is involved, even when jurors believe the confession was coerced, and even when they say that the confession was not a factor in their judgement. ‘I don't honestly think juries stand a chance in cases involving confessions,' says Kassin. ‘They're bound to convict.'

A confession can influence a trial without even reaching the courtroom, by tainting other evidence. In an experiment conducted by Kassin and fellow psychologist Lisa Hasel, students were invited to participate in what they were told was a study of persuasion techniques. The experimenter told the subjects she needed to leave the room to get some supplies and asked them to wait until her return. As they did so, another person came in and stole a laptop that was lying on a desk. The ‘thief' was in view for about thirty seconds.

When the experimenter returned she feigned shock at the theft, and the participants suddenly found themselves witnesses in an investigation. They were shown a line-up of six suspects – none of whom was the person who made off with the laptop – and asked to identify the culprit. Some did, some didn't. Two days later, they were invited back for more questioning. Different witnesses were given different information by the experimenters about who had confessed, and their subsequent responses demonstrated the extraordinary extent to which knowledge of a confession can distort a person's recollection. Of the people who had identified a suspect from the original line-up, sixty per cent changed their mind when told that one of the others had confessed. Of those who originally identified none of the suspects as having been the criminal, half changed their mind when told that one of them had confessed, and agreed that it was him. Those who were told that the person they had (wrongly) identified had confessed found their confidence in their own recollections soaring. Suddenly, their memory of the episode became crystal clear; previously obscure details came sharply into focus.

If eyewitnesses are so easily influenced by being told about a confession, we can at least be confident in the steadfastness of scientific evidence – can't we? In 2006 a cognitive psychologist at University College London called Itiel Dror took a group of six fingerprint experts, showed them sets of fingerprints, and asked them to determine whether they were matches or not. After making their judgements, the participants were given new information: either that the prints came from a suspect who had confessed or that they came from a suspect who was known to be in police custody at the time the crime was committed. Four of the six experts changed their judgements based on this new context.

Confessions are the nuclear weapon of evidence. Yet we know with certainty that they can be false. Advances in DNA evidence have helped the Innocence Project exonerate over 250 wrongly convicted people – a quarter of whom had confessed to their crime. For a few, confessing to a crime they didn't commit is a way of gaining attention and fame: in 1932, hundreds of people admitted to kidnapping the baby of the aviator Charles Lindbergh. Most of those who make false confessions, however, do so under the intense strain of a police interrogation. The police, who in high-profile cases are themselves under great pressure to secure convictions, are skilled at making the accused feel as though they're better off confessing. They might promise leniency or threaten tougher sentences, as in the case of the Norfolk Four. If a browbeaten suspect comes to feel that a conviction is inevitable, a confession can seem like their least worst option.

Advocates for fMRI lie detection might argue that in such cases the technology can come into its own, by enabling us to disregard the suspect's false story. But if Joseph Dick had been subject to any kind of lie detection test, the result would probably have been taken as evidence that he was guilty. To understand why, we need to grasp just how deceptive our memories can be.

During the 1980s a psychologist called Elizabeth Loftus would stand before juries and explain to them that just because an intelligent, sane, trustworthy person swears they remember something, that doesn't mean it happened.

One of Loftus's earliest published papers was based on work done for the Department of Transportation, which funded research into car accidents. She showed videos of vehicle collisions to her subjects then interviewed them about what they had seen, asking the same question but using different verbs. If she asked people how fast they remembered the cars were going when they ‘smashed' into each other the estimates she received were of significantly higher speeds than if she used the word ‘contacted'. Her questions were skewing the answers.

Loftus became intent on showing that the way we intuitively think of memory, as a form of information storage, is deeply inadequate, and that this has implications for the way we run our legal systems. In an investigation into the reliability of eyewitness accounts, she showed participants a video depicting a killing in a crowded town square. They were then given written information about the killing, but misled about what they'd seen. A critical blue vehicle would be referred to as white, a clean-shaven man as having a moustache. Afterwards, those who had been given the misleading information would express certainty that they had seen a white car and a moustachioed man.

Defence lawyers who had heard about Loftus's work invited her to give expert testimony on their behalf. They often needed to undermine the confidence of a jury in a witness report in a way that didn't involve attacking the witness's personal credibility; to show how witnesses could be led astray by police investigators, who would (often innocently) drop into the witness's mind suggestions which would later harden into memories.
Was it a blue car you saw? Was the man wearing a grey jacket?
Is this the guy?

In the late 1980s there was a spate of widely publicised court cases in North America centring on people coming forward to claim that they had been abused as children, usually by family members. Recovered Memory Syn-drome – the idea that memories of childhood abuse are often repressed by the conscious mind and resurface only after extensive therapy – was fashionable in the therapeutic community, many of whose practitioners pursued, with missionary zeal, the task of digging up such memories from the psyches of their patients. Patients were told that the cause of their current unhappiness might be long-buried memories of abuse, and in lengthy therapeutic sessions, often under hypnosis, they would begin to recall the details of the offence. Loftus strongly suspected that many of the memories being ‘recovered' were false, even when those claiming to have been abused sincerely believed in them. If she couldn't prove they were fictions, she wondered if she could show that fictions can become memories – and far more easily than most people suppose.

In 1995 Loftus recruited twenty-four participants and presented them with several stories from their early childhood which she and her collaborator had gathered from interviews with the participants' relatives. Amongst the true stories, she planted a false one. This fictional story was checked out with the relatives too, to ensure it was both false and plausible. The common theme of the false memories was getting lost in a shopping mall when out on a trip with their parents, and being rescued by a kindly stranger. Here, for instance, is the memory created for a twenty-year-old Vietnamese-American woman who had grown up in the state of Washington. It involves a trip to the local K-Mart with her mother and her siblings, Tien and Tuan:

You must have been five years old at the time. Your mom gave each of you some money to get a blueberry Icee. You ran ahead to get into the line first, and somehow lost your way in the store. Tien found you crying to an elderly Chinese woman. You three then went together to get an Icee.

The participants were first sent a written description of the four events. Then they were asked to write down which events they remembered, and to include any details that came to mind. After this, they were interviewed twice over the course of a week and gently prompted to recall memories of all four events, including the fictional one. When it was revealed that one of the memories was fake, they were asked to guess which one. Five people recalled the ‘lost in the mall' story as a real memory, and would recount it using details that weren't contained in the original. One participant described the man that rescued him: ‘He was wearing blue flannel . . . He was kind of bald on top. He had a ring of grey hair. He had glasses.' Presented with blind spots in our memories, we readily create – or confabulate – new ones. The Vietnamese-American woman vividly recalled running down the K-Mart's slippery aisles under long white lights. Another participant, after being debriefed at the end of the study, found it so hard to believe her memory was false she had to call her parents to check; both confirmed the episode never took place.

Elizabeth Loftus, and researchers inspired by her work, went on to find many more ways to demonstrate the disturbing malleability of our memories.
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In a series of increasingly bold experiments, participants were induced to falsely remember accidentally spilling a punch bowl on the parents of the bride at a wedding; taking a trip in a hot air balloon; being the object of a vicious animal attack; almost drowning, and witnessing satanic rituals. After critics suggested to Loftus that she hadn't quite proved such memories were false, she managed to persuade her subjects that they had met Bugs Bunny at Disneyland (Bugs Bunny is a Warner Bros character). When it was argued that she hadn't shown it was possible to implant memories of
abusive
experiences, her team convinced another group of subjects that, during a Disneyland trip, a drug-addled Pluto had licked their ears with his large fabric tongue.

Loftus and her fellow experimenters used mild and subtle techniques to implant memories. None of her par-ticipants was engaged in long conversations, or subjected to hypnosis, or faced anything like the fierce, relent-less pressure of a high-stakes police investigation. Under those circumstances, it is hardly surprising that a person's memory becomes prone to the most extravagant manipulations.

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One of the expert witnesses called to testify at the trial of the Norfolk Four was Dr Richard Ofshe, a social scientist from the University of California and a friend of Elizabeth Loftus. Years before, Ofshe had carried out one of the most dramatic experiments in memory ever conducted, in the course of advising the prosecutors of a man accused of sexually abusing his daughters.

Paul Ingram, of Olympia, Washington State, could hardly have been a more upstanding member of his community. At forty-three years old, he was a happily married father of two daughters and three sons, the deputy sheriff of Thurston County, and chairman of the local Republican Party. A tall man who wore oversized glasses and a brown moustache, Ingram was a strong believer in authority, a devout Christian and a stickler for rules. He and his family were active members of the Church of Living Waters, a fundamentalist Protestant congregation whose members experienced heightened states of religious fervour during worship, speaking in tongues and laying on hands to the sick. In his job, Ingram was known as a strict enforcer of traffic regulations who nonetheless acted with formal courtesy and consideration towards those he awarded tickets.

In 1988 Ingram's elder daughter, Ericka, then twenty-one and still living with her parents, attended a ‘Heart to Heart' Bible camp, an annual retreat for older girls organised by the church. The star speaker that year was a Californian woman named Karla Franko, who had become a church minister after a career as an actress and stand-up comic. An attractive, charismatic figure, on whom the glitter of celebrity had been bestowed, in the eyes of the girls, by appearances on minor TV shows and commercials, Franko believed herself to possess God-given gifts of healing and spiritual discernment, and she conducted emotionally charged sessions at the camp, during which painful memories resurfaced, fears were confessed, and tears shed.