With scientific studies showing that juvenile brains are not fully developed and youth crimes being punished more harshly than ever before, children need more protections when police interview them, said panelists in the Conference on Public Service & the Law’s juvenile law panel Feb. 12.
Recent research suggests that “most juveniles, at least below the age of 15, haven’t a clue [as] to what they’re waiving when they waive the right of an attorney,” said Elaine Cassel, a Concord University School of Law professor and chair of the ABA Behavioral Sciences Committee.
When Cassel first started practicing law 26 years ago, juvenile courts handled even the most heinous crimes committed by children aged 15 and younger, and interrogators almost never questioned a juvenile without parental permission. Since then, a spate of school killing sprees has brought attention to youth crime. With mandatory minimums, three-strikes laws, and hard plea bargains as features of the court system, law enforcement has gotten tougher on juveniles too, and states are more likely to try kids as adults. Sixteen states, including Virginia, choose 14 as their cut-off age to try a youth as an adult, while six set the age at 13. Kansas and Vermont set their age at 10, while 23 states have no cut-off at all. “In states with no limit…children as young as 10 and 12 have been tried as adults,” Cassel explained.
Cassel pointed to the Central Park jogger rape case as an example of the horrifying effects of false confessions by juveniles. Police had questioned teens aged 14 to 16 about the 1989 crime, none of whom admitted having intercourse with the victim, but who had, under pressure from interrogators, implicated each other. Although no physical evidence connected the boys to the crime, the confessions convinced the jurors who convicted them. In 2002 the real perpetrator surfaced as a result of DNA evidence and the original convictions were overturned.
“Juveniles, like adults, make false confessions, but make them more often,” Cassel said, and under different circumstances for different reasons.
Alex and Derek King were convicted of second-degree murder in 2002 for killing their father, and told remarkably similar stories when they confessed. Yet prosecutors later tried a friend of the family for the same murder; the friend, a pedophile, had a sexual relationship with one of the boys and had talked them into killing their father, Cassel said, while plying them with marijuana. He told the boys they would not be convicted if they said their father beat them. The Kings’ confessions were similar because their “friend” had coached them. The judge who presided over both cases overturned the boys’ conviction and sentenced them to prison until they were 21.
Cassel explained that confessors have to be found “competent” and a confession must be voluntary to be admissible in court. A confession is voluntary if the confessor knowingly waives his rights to remain silent and understands the concept of self-incrimination. Cassel said research has shown that juveniles don’t fully understand the consequences of their confession; they believe if they tell an officer what he wants to hear, they’ll be able to go home. Juveniles also don’t understand that an attorney would be on their side. Children “are more inclined to tell the truth,” she said, which “may seal their fate.”
Cassel said when a suspect is 10 years old or younger, judges should presume that confessions are not voluntary. She noted that Tom Grisso, a psychiatry professor at the University of Massachusetts Medical School whose research has been seminal in the field, suggests that those under 15 should be presumptively judged not competent.
Studies of the brain show a burst of development between the ages of 10 and 15, with the frontal cortex, the area responsible for judgment, becoming solidified during the ages 15 to 25.
“People are starting to accept this great neuroscience which now underpins the cognitive studies,” she said.
Dewey Cornell, a defense expert witness for convicted sniper Lee Boyd Malvo and a clinical psychologist and professor of education at U.Va.’s Curry School of Education, noted that the nature and quality of confessions are very important to the jury.
Malvo’s case highlighted the vulnerability of adolescence, Cornell said, because his emotional dependence on John Muhammad played a key role in his behavior. The case showed that indoctrination can change an adolescent’s belief system and “can lead him to sacrifice himself.”
Although Malvo was shipped from caretaker to caretaker as a child and often switched schools, his peers and teachers described him as “fairly well-adjusted” and “friendly and well-mannered.” Classmates saw a change in him after he met Muhammad, who impressed upon him that whites oppressed blacks. Muhammad trained Malvo to be a soldier—desensitizing him to violence and using violent video games such as those used by the military. He became a “soldier on a mission” to overturn the government and free black people from oppression.
“He was told if he was caught he must sacrifice himself for his father,” Cornell said. When arrested in October 2002, Malvo claimed he shot all the victims, and “didn’t portray the kind of remorse that defense attorneys hope to see.” By June 2003 Malvo recognized he had been manipulated, and began to tell a more complete confession, Cornell said, even explaining crimes that had not come to light.
Cornell said that although Malvo’s was an extreme case, the effects of indoctrination are apparent in cults and gangs, which give teens a sense of identity and membership. The gang leaders “seem to be a better parent,” and test members by asking them to carry out certain acts.
Cornell said officers should take into account the influence of gang leaders when evaluating confessions. There are 21,500 gangs in the United States, with 731,500 gang members. About half of homicides in Chicago and Los Angeles are gang-related.
Brad Garrett, a special agent for the FBI and Malvo's chief interrogator, said law enforcers just want to figure out who committed a crime, and the legal system can scrutinize the value of a confession. “My job basically is to find the truth,” he said. Garrett solves Washington, D.C., homicides, many of them committed by 14- to 17-year-olds. The FBI in general interviews a lot of children, he said, because they are often victims on Indian reservations or in Internet porn cases.
“I obviously do not want someone to tell me something that is not the truth,” Garrett said, noting that he prepares for interviews by knowing the facts of the case. “If you can’t articulate facts that I know are true, then I know you’re not telling the truth.
“The key [to avoiding false confessions] is not to tell them the facts,” Garrett added. He said he always talked to prosecutors before going to arrest a suspect, and spent hours reviewing the Malvo case prior to the interview. The reality is, “people don’t talk to you unless they want to talk to you.” Sometimes a suspect needs to feel comfortable first, so “you try to develop a rapport with the person you’re talking to.”
Garrett said he tries to show respect toward suspects, for example taking a sex offender into custody so there’s no one around to witness the arrest. “How I treat them, is how they’re going to talk to me.”
Cornell said that although Garrett, who has a Ph.D. in criminology, may approach the interview like a therapist, the problem is that there are “no clear standards” when interviewing children. The Central Park jogger case shows there can be incredible pressure on suspects to implicate themselves or others, he pointed out.
Interrogators can even lie to suspects during interviews, added panel moderator Andy Block, director of the JustChildren Program at the Legal Aid Justice Center.
“Law enforcement is really not educated to interview people,” Garrett replied. Many officers switch beats many times and learn a lot on the job.
Cornell suggested that police should be required to give parents notice when they want to interview a juvenile, and if a suspect is very young, require parents to be present or involved in some tangible way.
Garrett responded that there were hundreds of cases in big cities that involve youths. “You’re just not going to be able to be that sensitive,” he said, noting that it boils down to the ethical boundaries of interviewers. High-profile cases like that of the Central Park jogger undoubtedly involve more pressure, and some detectives may crack.
Garrett said he’s had interviewees falsely confess before, but explained that it was easy to spot because the facts didn’t add up.
Block suggested that perhaps juvenile confessions could be taped, but Garrett said there are logistical issues to consider: there are only so many rooms that are equipped with audio and video equipment in police stations, and lengthy interviews would be difficult to tape. Garrett said he does occasionally tape the actual confession rather than the interview leading up to the confession.
Cassel noted that in the Malvo case a jurisdictional issue kept a court-appointed guardian and attorney blocked from the interview, although they banged on the door to get in. “There ought to be an age at which kids are not questioned” without an attorney or parental involvement, she said.
Block pointed out that parents could have a detrimental effect by
giving directions no defense attorney wants a young client to act upon: “tell