-Caveat Lector- ----Original Message Follows---- From: Nicholas Wilson <[EMAIL PROTECTED]> Reply-To: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Subject: !b_a_Act: Anatomy of a false murder confession Date: Sun, 05 Nov 2000 13:18:44 -0800 Anatomy of a false murder confession By Seth Rosenfeld OF THE EXAMINER STAFF November 5, 2000 �2000 San Francisco Examiner URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/examiner/hotnews/stories/05/cowlingsun.dtl OAKLAND -- At first, Kenneth Cowling denied killing James Carter, a retiree whose lawn he had cut nearly every month for eight years, a man he saw as a father figure. But after 10 hours and 10 minutes in a small, windowless interrogation room at police headquarters, Cowling confessed to beating Carter to death and robbing him of $100 to buy heroin. As the hours and questions wore on Cowling, a heroin addict, grew sicker from withdrawal, he later testified, but the detectives withheld treatment. "They kept telling me what they think happened, I kept denying it. And the whole time I'm denying it, I'm asking to see a nurse," Cowling said in an interview. "After I saw it wasn't doing any good to keep denying it, I figured I must have to tell them something to at least get medical attention." Cowling, 49, was charged with murder and robbery and if convicted faced a mandatory sentence of life in prison without parole. But in an extraordinary verdict, an Alameda County jury acquitted him after finding his confession false. The Cowling case holds a bare light bulb over interrogation practices at the Oakland Police Department and other law enforcement agencies around the country, tactics that experts say can result in false confessions, guilty people going free and innocent people going to prison. "The vast majority of people believe that no one would confess to a crime they didn't do," said Assistant Alameda County Public Defender William G. Locke, Cowling's lawyer. "But false confessions happen. Innocent people have gone to prison and even to their deaths." At least 60 people confessed falsely in the United States between 1973 and 1998, with 29 convicted, 11 sentenced to life imprisonment, three sentenced to death and one executed, according to a 1998 study by UC Professors Richard Ofshe and Richard Leo that was published in the the Journal of Criminal Law & Criminology. In October, Virginia Gov. James S. Gilmore III pardoned a man who came within five days of execution but eventually was cleared by a DNA test. The Cowling case is one of at least five murder prosecutions in California that were derailed in the past two years after judges or prosecutors cited illegal or improper police interrogation tactics, The Examiner found. In three cases charges were dropped and in a fourth a conviction was reversed. In addition to allegedly taking advantage of Cowling's addiction, the court record shows, detectives unlawfully interrogated him after he twice invoked his Miranda right to remain silent, failed to pursue evidence that might confirm or contradict the confession, and tape-recorded only 16 minutes of the 14 hours and 41 minutes they held him incommunicado. And once the judge barred prosecutors from using Cowling's taped confession to prove his guilt because of the Miranda violation, the state was forced to rely on the detectives' admittedly scanty notes and faulty memories of what they claimed was an earlier unrecorded confession. "A lot of the interrogation tactics were questionable," said juror Doretta McIntosh, a homemaker and mother in Montclair. "There were too many questions about what was said before that tape recorder was turned on." Police say they handled the case properly and that Cowling is guilty. Deputy District Attorney Jerry Curtis acknowledged that the lack of an independent record of the interrogation was a "big issue" with the jury. Police relied too much on Cowling's alleged admission, he said. "But this is not a case of a false confession," said Curtis, who has returned to the state attorney general's office after being on loan to the district attorney's office. "And this is certainly not an innocent man." *** When James Carter's phone was continuously busy on March 22, 1998, a fellow Mason went to his home. Carter, 78, had lived for 40 years in the house on 62nd Avenue in a neat blue-collar neighborhood of elderly residents. He had been a foreman at Hunters Point Naval Shipyard. The widower was an avid fisherman. Lestus Mitchell found Carter's front door unlocked, and his friend dead on the couch, hands and feet bound. "It was just terrible," Mitchell recalled. "The whole neighborhood was upset." So bloody was the scene that police initially reported, "It appears that suspect(s) used an unknown weapon to strike or shoot the victim." Homicide Sgt. Ed Hollomon, a 21-year department veteran, was the lead detective. His partner was Sgt. Ersie Joyner, a seven-year veteran. Hollomon immediately noticed Carter's fresh-cut lawn, writing, "There was (sic) grass trimmings still on the sidewalk." The county coroner noted another clue: tufts of fibers stuck to Carter's clothing and body. Hollomon would pursue one lead, but not the other. He checked out 13 possible suspects, but none was arrested. Then a man using the alias George Wallace called, seeking a reward. Wallace claimed he'd heard secondhand that a man whose name he didn't know but who lived at a 90th Avenue address had boasted of killing Carter. Hollomon discovered Cowling lived there, in his parents' home of 30 years. Born in Berkeley, Cowling was an occasional handyman, the father of two daughters, a grandfather. His father drove a bus for AC Transit. His mother worked at the Oakland Army Base for 30 years. Cowling was in the Army in the 1970s when a buddy who'd used heroin in Vietnam gave him some. Cowling says the drug ruined his life. For the next 25 years he worked odd jobs to buy his daily dose. Sometimes he turned to petty -- and pathetic -- crime to support his habit. In 1987, Cowling pleaded guilty to felony cocaine sale, for carrying a curbside order from undercover cops to a wheelchair-bound crack dealer. In 1995, he pleaded guilty to trying to pickpocket a man at Oakland's Eastmont Mall, where passersby tackled him. Each time he got six months in jail. He had no other felony convictions, Public Defender Locke said, and no record of violence. By 1998, Cowling had pared his habit to $20 a day. He injected once in the morning and once at night, he said, to stave off withdrawal pains. Experts say $20 per day could sustain an addiction, given cheap heroin prices. Within 12 hours of missing a fix, such an addict would likely exhibit withdrawal symptoms like nausea, aches, runny nose, appetite loss and diarrhea, said Gregory Hayner, chief pharmacist at the Haight-Ashbury Free Clinic. Cowling was jailed recently for violating the terms of his parole on the pickpocket conviction by failing a drug test, Locke said. In 1990, Cowling began cutting Carter's lawn twice a month for $30. Carter, driving his old Dodge truck, picked up Cowling and his push mower, then took him home. Cowling said he was estranged from his father and that Carter helped fill the void. "I took to him," he said. On the last day Carter was seen alive, Saturday, March 21, 1998, Cowling cut his front lawn. It began to rain, so Carter gave him $20, took him home and told him to finish Monday. *** Interrogation Room 201 held a small table against one wall and three wooden chairs. There was no clock. The sign-in sheet posted outside the door -- Sgt. Joyner once called it a "police hospitality log" -- shows that on April 28, 1998, officers locked Cowling inside at 10:28 a.m. By the time police led him from the room at 1 a.m., Cowling had made admissions that would be the only evidence against him. At the trial, Cowling took the unusual step of testifying in his own defense, and, according to jury forewoman Lucy Valderrama and juror McIntosh, the jury found him credible. In an interview, he recounted his version of events inside the interrogation room. After Cowling sat alone for about an hour, Joyner brought him a lunch of beef stew, salad, bread and water. "I informed them again that I was withdrawing off heroin," Cowling said. "I couldn't eat and I needed to see a nurse." The officers removed the largely untouched tray, he said, but ignored his medical request. Cowling sat by himself for another three hours, the log shows. Then Hollomon and Joyner took seats on either side of him. They read him his rights and began with friendly questions about his personal life. After about an hour they went out. On returning, Hollomon set a sack on the table. "They said they had evidence in the brown paper bag that proved I had something to do with Jim Carter's death," Cowling said. "I asked could I see it. They said no." Locke said it was the first of several legally permissible police lies, which interrogation manuals call "evidence ploys." "They said they had a statement from a guy I sold the bike to," said Cowling. "They also said they had a "blood print.' I didn't know what they meant." As the interrogation continued, Cowling's nausea, back pain and weakness grew, he said. Four times the detectives took him to the men's room, their log says, though he had refused food and water. "I started giving them what they wanted to hear," Cowling said. "I made up a few things based on what they were telling me, what they thought happened, and then what I had read in the newspaper. "I figured if I tell them something, I'll get to see a nurse," he said. "And then they will investigate and find out it wasn't true. And then they will drop it." *** The officers did not turn on the tape recorder until 8:38 p.m., court records show, and then for only 16 minutes to have Cowling summarize his statement. Locke said he reviewed the tape and was surprised to hear his client invoke his Miranda right to remain silent: "That's it, Sarge. Turn it off. I'm through. ..... I don't want to discuss the case," Cowling said. But the questioning continued. At a pretrial hearing, Hollomon said he'd heard Cowling say he didn't want to talk but did not realize he was invoking his Miranda rights. Instead, Hollomon testified, he assumed Cowling was reticent "because he was feeling remorseful." Superior Court Judge Kenneth Kingsbury ruled that the police violated Cowling's Miranda right to remain silent and barred the prosecution from using the taped confession to prove his guilt. On the same ground, the judge barred a 17-minute taped statement Cowling gave a prosecutor at 11:19 p.m. in the interrogation room. But the detectives claimed Cowling had confessed even before their recorder was turned on. They said he knew details of the crime that only the killer could know. Locke contended the unrecorded confession was false, that in questioning Cowling the detectives inadvertently conveyed information about the killing and that other details were public. Locke also claimed the detectives tried to conceal their methods by keeping an incomplete record of the interrogation. Each detective wrote less than two pages of notes on the more than four-hour period during which they alleged Cowling had gradually confessed. Those notes do not show what the detectives told Cowling about the crime, or what they asked him. Both officers admitted to incomplete memories. "It was tons of questions," said Hollomon. "I can't remember all the questions." The detective said Cowling had told him he was a heroin addict with a $20-a-day habit and last shot up the night before his arrest. But he denied that Cowling had withdrawal symptoms and requested medical help. Hollomon also denied that he and Joyner fed a confession to Cowling. He acknowledged that by law they could have secretly taped the whole interrogation, but said it wasn't necessary. In an interview, Hollomon said he and Joyner followed department policies on interrogations and recording of them. Joyner declined comment. The court ruled the officers could testify that Cowling had confessed before the recorder was turned on, and the case was set for trial. "It just kind of knocked the whole family down," said Cowling's father, James. "Nobody could really see Ken doing this. ..... It just didn't seem real." *** At trial, Hollomon was the main prosecution witness. Cowling, he testified, initially denied killing Carter, but after about an hour said, "OK, now I'm going to tell you the truth." Cowling then confessed that at about 11:30 p.m. on the day he last mowed Carter's lawn he returned to Carter's house, killed him in a robbery gone bad, and fled with a bicycle and $100, Hollomon said. In his alleged admissions, Cowling said he: * Climbed through Carter's bathroom window. * Hit Carter's face only three times, and only with his left fist. * Placed nothing over Carter's head. * Tied Carter's hands behind his back. * Fled on Carter's red mountain bike, hid it overnight in the church parking lot next to his house and sold it the next day. There was no other evidence -- no fingerprints, witness statements or proof in a paper bag -- against Cowling. Other prosecution witnesses contradicted key parts of Cowling's confession. Randall Lew, a police crime scene technician, testified that Carter's hands were elaborately bound in front of him ---- not behind him as Cowling claimed. A tablecloth or sheet was wrapped around Carter's head. Dr. Paul Hermann, a pathologist for the county coroner, also testified that Carter's wrists were tied in front of him. And he said a "quite bloody" blanket was wrapped around Carter's head, and may have cut off breathing. Hermann suggested a far more violent attack than the one Cowling admitted. His report noted fibers on Carter's body. But though Cowling had told police his jacket was torn and leaking its filling, Hollomon and Joyner testified they did not try to get his coat and match the fibers. "It was overlooked," Joyner testified. "I have no explanation." Prosecutor Curtis said the officers should have tried to analyze the fibers. "That was pretty bad," he said. *** Defense witnesses cast more doubt on Cowling's confession. The Rev. Harvey Smith of the First Morning Star Baptist Church said he doubted Cowling could have hidden Carter's bike there because at night homeless people used the unfenced lot "like Grand Central Station." And on Sunday morning, Smith said, the lot would have been full of churchgoers. Hollomon conceded he had not talked to people who ran the lot about the credibility of Cowling's claim of storing the bike there. Officer James Lewis, a jailer at the Oakland City Jail who coincidentally knew Cowling in the Army, was on duty when Cowling was jailed after the interrogation. Lewis said Cowling appeared to be suffering from heavy heroin withdrawal, or "kickin' bad." Terry Nobles, a nurse at the jail, testified she gave several "kick kits" to Cowling to ease withdrawal symptoms. Leo, one of the UC professors who studied false confessions, testified for the defense that Oakland's interrogation techniques are like those of other police agencies around the country and pose a risk of false confessions. Typically, said Leo, officers are taught to build a rapport with suspects, earn their trust, and convince them that they are powerless and only the interrogator can help them. Detectives often use evidence ploys, falsely claiming witnesses or physical evidence proves the suspect's guilt. Sometimes they inadvertently feed suspects a confession through questions containing details of the crime, said Leo, a professor of criminology at UC-Irvine. Withholding medical care could increase the chances a suspect would confess falsely, he said. Police generally don't believe innocent people will confess, Leo added, and are not adequately trained about that hazard. The best way to test the truth of a confession, Leo said, is to compare it to other evidence. In an interview, Lt. Paul Berlin, head of the homicide unit, declined to comment on the Cowling case. He said Oakland relied on psychological interview methods like those used by other police departments, and that it was up to each detective to decide whether a suspect was medically fit to be questioned. Officers are trained to be wary of false confessions and to test confessions against other evidence. "That's part of the job, to dissect the case to the point that there can't be any loose ends," he said, adding that Hollomon and Joyner are "top investigators." But loose ends troubled the jury, which acquitted Cowling in February. "We didn't like the way the evidence didn't match his confession," McIntosh said. McIntosh and Valderrama said that several main details didn't fit: whether the bike was hidden in the church parking lot; whether Carter's hands were tied in front of his body; whether Carter's head was covered with a blanket; and the number of blows to Carter's head. "A lot of the evidence had holes in it," said Valderrama, a postal worker and mother. Jurors also doubted the detectives' credibility because they ignored Cowling's clear invocations of his Miranda right on the tape, McIntosh said. "That brings into play what else did they ignore?" she said. "The fact that he was a heroin user and hadn't had a fix in many hours -- one would have had to have gone through some kind of withdrawal. And the fact that they didn't acknowledge it, or claimed they didn't even notice, we found strange." Curtis agreed that the Miranda violation undermined the case. "That's how the credibility of the officers came into question," he said, adding, "You would expect more notes. The problem becomes, do you believe the guy who took the notes?" Curtis contended that had the officers taped the entire interrogation Cowling surely would have been convicted. Locke countered that a full tape would have cleared Cowling before trial. Oakland does not require officers to record the entire interrogation, and neither do many other police departments, including San Francisco. Alaska and Minnesota are the only two states that require police to record interrogations. "That tape should have been rolling from the minute the suspect sat down in the interrogation room," said Locke Bowman, a lawyer who represented one of the 13 men exonerated from Illinois' death row, and legal director of the University of Chicago Law School's MacArthur Justice Center. "Then there would be no debate about what was said." �2000 San Francisco Examiner In accordance with Title 17 U.S.C. section 107, this material is distributed without charge or profit to those who have expressed a prior interest in receiving this type of information for non-profit research and educational purposes only. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Exposure to the internet retards psychic acuity. 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