Editor’s note: This story has been updated to reflect the fact that additional states have passed recording requirements.
The United States criminal justice system has seen a large, growing number of exonerations of wrongfully convicted defendants in recent years.
According to the National Registry of Exonerations at the University of Michigan Law School, there were between 20 and 40 exonerations per year nationwide in the late 1980s and early 1990s. By 2015, there were 162, and in 2016 there were 168. The numbers have been steadily trending upward for as long as they have been tracked.
Idaho is no exception. From Donald Paradis, released in 2001 after 21 years on death row, to Charles Irvin Fain, released in 2001 after 18 years on death row, to Sarah Pearce, released in 2014 after 12 years in prison, to Chris Tapp, released in 2017 after 20 years in prison, a growing list of proven and suspected wrongful convictions has some national experts saying it’s time for Idaho to take steps to reduce the likelihood of wrongful convictions and provide better avenues to review suspected cases of wrongful conviction.
(Technically, Tapp and Pearce were released for time served even though they had many more years on their respective sentences. In each case, their convictions remain on their records.)
What steps could the state take?
National experts have outlined a number of possible legal changes that could reduce the risk of a wrongful conviction, including laws requiring that interrogations be recorded and the establishment of a “conviction review unit.” And one expert also says it’s important for media organizations to think hard about how they cover criminal cases.
“If there’s one lesson that can be learned from the Chris Tapp case, it’s that recording of police interrogations is absolutely essential to understanding how a suspect came to confess to a crime he may not have committed,” Steve Drizin said.
Drizin is the former director of the Center on Wrongful Convictions. He’s defense counsel to Brendan Dassey, who was convicted of murder in 2007 after confessing. His case was spotlighted in the Netflix series “Making a Murderer.” Like Tapp, Dassey, who confessed under interrogation at age 16, says his confession was false, the result of police coercion. Two federal courts have sided with Dassey, finding that his confession was coerced by police.
Drizin produced an expert report on the Tapp case focused on evidence of a false confession. He previously told the Post Register it was the “most contaminated and least corroborated” confession he had ever seen.
Drizin is also the co-author — along with law, criminology and psychology professor Richard Leo, now at the University of San Francisco — of a seminal 2004 study of 125 documented cases of false confession. That study found that false confessions are highly likely to produce convictions, that failure to record interrogations is widespread and that not recording interrogations greatly increases the likelihood that a false confession won’t be discovered.
Tapp’s interrogations were subject to perhaps more scrutiny in recent years than any other aspect of the case. But Drizin points out that things could have been much different, because Idaho is one of several states where police are not required to record interrogations. Drizin said that has the potential to leave big gaps in the record.
“Detective (Jared) Fuhriman testified that he didn’t feed any facts to Chris Tapp,” Drizin said. “The video was powerful proof that that testimony was false. And in states where they don’t have an electronic recording, there’s really no way to challenge erroneous testimony by law enforcement officers about what was said during an interrogation. Without a recording, there would be no way to prove Detective (Steve) Finn threatened him (Tapp) with the death penalty. Detectives conveniently forget or misremember such threats in the absence of recordings.”
According to the Innocence Project, 17 states and the District of Columbia have passed laws that require most interrogations to be recorded. State supreme courts in seven other states have ruled that such recordings are mandatory, and about 1,000 local jurisdictions have self-imposed the requirement. California requires recording in homicide cases.
Idaho is nowhere on the list, though the National Association of Criminal Defense Lawyers has identified 26 departments, including the Idaho Falls Police Department, that regularly record interrogations on a voluntary basis.
“It’s shocking that we don’t have a requirement that interrogations be recorded,” said public defender John Thomas, Tapp’s attorney. “With the amount of technology that’s available for minimal amounts of money, there’s no reason why it shouldn’t be required, both for the protection of police officers and defendants.”
During the investigation of the Angie Dodge murder, the IFPD recorded virtually all the interrogations of Tapp and other suspects they interviewed, though it wasn’t required by law or court decisions. But detectives didn’t record a Jan. 29, 1997, trip they made with Tapp to the crime scene.
Prosecution-hired investigator Stuart Robinson concluded that this made it impossible to know whether any of the details of the crime contained in Tapp’s later statements were fed to him by police, as virtually every detail of the crime included in his prior statements had been.
“By taking Tapp to the crime scene and not documenting any of it, (the trip) makes any information from Tapp (after the trip) questionable as to (its) reliability,” Robinson wrote.
Conviction review units
A relatively recent development is the establishment of so-called “conviction review units” in a number of states and counties throughout the country. John Hollway, associate dean of the University of Pennsylvania Law School and executive director of the Quattrone Center for the Fair Administration of Justice, released a report and recommendations for such units in April following extensive interviews with members of such units.
The task of a conviction review unit is to conduct an “extrajudicial, fact-based review of secured convictions to investigate plausible allegations of actual innocence,” he wrote.
Conviction review units are groups of lawyers and investigators that report to prosecutors but act independently to review questionable convictions. Hollway’s report recommends that such units be headed by a lawyer who has done both prosecutorial and criminal defense work, and that they have staff who are trained in the investigation of cold cases and problems in the criminal justice system that are known to contribute to wrongful convictions.
Thomas said an independent review unit with investigative staff would address a major imbalance in the system: Prosecutors have a police department to build a case for guilt, but defense attorneys, particularly public defenders, have scant investigative resources.
“It took years and years of fighting and scratching just to get into the evidence locker and find out what was in there,” Thomas said.
At least 27 such units have been established around the country, mostly either to cover entire states such as Colorado and North Carolina, or in counties with large cities such as Las Vegas, Tuscon and Dallas. In an interview, Hollway said the first unit was established around 2005, but most have sprung up in the last five years.
“Sometimes there are jurisdictions that deal with a group of cases where it’s clear that there have been errors,” he said. “Sometimes its a new district attorney who proposes it as a way to differentiate themselves from the incumbent. Sometimes it’s just communities looking around at what other communities have done and concluding it’s a good idea.”
Hollway’s recommendations include a different standard of review than was employed by Bonneville County prosecutors in their review of Tapp’s conviction, which proceeded under the Idaho Rules of Professional Conduct. Those rules require a very high burden of proof for a prosecutor to move to vacate a conviction or for a new trial.
Importantly, prosecutors need evidence that has never been presented to a court or jury. It also has to provide “clear and convincing” proof of innocence, the second-highest burden of proof in the criminal justice system. Prosecutor Danny Clark summed up the rules in his findings: “A defendant is presumed innocent until a jury finds him guilty beyond a reasonable doubt, whereupon the presumption shifts decisively and fittingly toward guilt.”
Hollway said that reasoning is drawn from appellate law, where courts focus on procedure rather than evidence.
“The fact is, when you’re dealing with appellate law, you’re not reevaluating the facts,” he said. “You’re evaluating procedure and whether a defendant received due process. … Only when new evidence that couldn’t be known at the time of trial comes forward is there a review of the facts.”
That differs fundamentally from the way many conviction review units proceed. Often, the question they ask is whether a fresh trial, with all the currently known evidence, would result in a conviction. The focus is on evidence rather than legal procedure.
“Conviction review units take a fact-based approach rather than a law-based approach,” Hollway said.
In Tapp’s case, the newness requirement meant certain evidence, such as the fact that DNA extracted from semen found on Dodge’s body didn’t match Tapp, wouldn’t count as evidence of innocence because it was known by the jury that convicted him in 1998. That’s despite the fact that Robinson, the investigator hired by prosecutors, had concluded the lack of a DNA match would “be a huge factor” if a new trial were held.
Hollway’s recommendations for conviction review units call both for a lower threshold to call an outside review, and a lower burden of proof for vacating a conviction or seeking a new trial. Specifically, the recommendations call for a conviction review unit to vacate a conviction if, in the unit’s opinion, the evidence taken as a whole “no longer supports a conviction beyond a reasonable doubt.”
Reporter Bryan Clark can be reached at 208-542-6751.