Last week, C-VILLE revisited the case of Robert Davis, who after five hours of interrogation by Albemarle County detectives in 2003 admitted to killing Crozet mom Nola Charles and her toddler son. He has since maintained his innocence, and the two siblings who initially told police Davis was involved have now sworn under oath that he wasn’t. Some believe Davis’ case is a textbook example of a false confession, but that’s still up for debate; his clemency plea is currently being investigated by Governor Terry McAuliffe’s parole board.
But our story left a key question unanswered: What are police doing to prevent eliciting confessions that could be flawed or false?
The lay of the land
UVA law professor Brandon Garrett literally wrote the book on wrongful convictions. In Convicting the Innocent: Where Criminal Prosecutions Go Wrong, he examined early cases of DNA exonerations, when indisputable forensic evidence cleared people who had previously been found guilty. In many of those cases, suspects had confessed under pressure to crimes they never committed.
Garrett has since worked with the Virginia Department of Criminal Justice Services and others to develop best practices for investigators. Last year, he turned his attention to interrogations. He surveyed 180 agencies in the state about their policies, and found a widespread lack of guidance. Only nine required recording interrogations in their entirety, a practice widely understood to help prevent false confessions, Garrett said. More than half made it an option, but didn’t go further than that.
When it came to specifics on how to conduct interrogations, there was even less information on the books. Only a handful gave direction on proper procedure, including cautioning against feeding suspects facts through leading questions, which experts say can be a recipe for eliciting a detailed false confession from a vulnerable person.
“Most agencies have no guidance whatsoever on how you interrogate juveniles,” Garrett said. “No agencies have a policy on how you interrogate someone who is mentally ill or intellectually disabled.”
Dozens had no policy on interrogations at all.
Local rules
Both the Albemarle County Police Department and the Charlottesville Police Department have written policies that specifically address recording interrogations, though the language differs.
Albemarle’s rulebook states that officers “are encouraged to use this Department’s audio and videotaping capabilities for purposes of recording statements and confessions in an overt or covert manner consistent with state law,” and goes on to say that “The lead investigative officer may decide when audio and/or videotaping may be used.”
The city goes further: “It is the policy of the Charlottesville Police Department to video record all statements taken from persons from whom custodial and non-custodial interviews are conducted when circumstances permit for such recording.”
Leadership from both departments stressed that they see recording as an important tool, but said a blanket policy mandating it in all cases is a bad idea.
Albemarle Detective Sergeant Darrell Byers said recording interrogations is “the norm” for serious cases there, but it can’t be mandated. “Researchers sometimes overlook the reality of the job,” he said. “It’s not uncommon for somebody to spontaneously blurt out a confession without a police officer even asking a question,” sometimes during transport from a scene to the police station. Saying a video recording is required for each and every confession could jeopardize the use of those spontaneous admissions, said police. Put another way: “The only reason it’s not mandated for each and every instance is it’s absolutely impossible to do in every case,” Byers said.
Captain Gary Pleasants of the Charlottesville Police Department agreed.
“You never know what might occur when,” he said. He recalls a situation that occurred years ago when he was face to face with a suspect in a serious crime. “He was sitting in a jail cell, and he said, ‘I’ll talk right now, but this is all I’ll do,’” said Pleasants. There was no recording of that confession. “We’ll try our best to record them,” he said, “but that’s why it’s not an absolute.”
Neither department’s policy specifically addresses interrogation techniques, though representatives from both departments said investigators receive extensive training on best practices, including what Albemarle Police Chief Steve Sellers called “confession reliability”—making sure that an interrogation suspect isn’t just telling detectives what they want to hear. Sellers and Pleasants also said interrogations of serious crime suspects are typically team affairs, with multiple officers watching and discussing the reliability of the information gathered.
So why aren’t all those best practices and techniques learned in training written into their policies?
Not all worthwhile police tactics can become policy right away, said Sellers. The department rulebook is huge, and covers a lot of ground. “To incorporate different skills and techniques each and every time we learn something new is really impractical,” he said. “Over time it could become sort of a standard practice, and if it’s supported by model policies, then it’s time to go in and make an adjustment.”
Pleasants said departments should commit to following best practices, and then police themselves. “If you put too much into policy, you can confine yourself,” he said.
The next steps
Albemarle County Sheriff Chip Harding wants to see more policy guidance on the state level. A veteran of the Charlottesville Police Department, Harding has become something of an evangelist on the issue of wrongful convictions since he was elected sheriff in 2007. Last year, he ramped up his advocacy of the creation of a state justice commission—a panel of experts, including police leadership, who could examine policy around the Commonwealth and encourage agencies to adopt best practices.
Training on proper interrogation techniques has definitely improved in recent decades, Harding said. When he was a young officer, threats, cursing and intimidation of suspects was the norm, something Pleasants and Sellers echoed. Now, they said, there’s widespread understanding that a respectful approach is more effective.
But Harding believes there’s a long way to go—even in departments like Albemarle and Charlottesville. “The standards aren’t as high as they should be,” he said.
He thinks recording should be employed for far more than interrogations. It should be used to document police lineups, and document all interviews with witnesses and “non-custodial” suspects, he said—people who haven’t been arrested. And, unlike the law enforcement officers C-VILLE spoke to locally, he thinks policy should reflect training and practice when it comes to interrogation technique.
Garrett agrees. “We need a model policy on how to do interrogations right.”
That may prove to be a very big ask. Both men acknowledged that there’s a lot of resistance from agencies across the state to rules that dictate how police should do their jobs. Some still don’t believe false confessions exist, Harding said. Garrett pointed out that a bill that would have written into state law a policy similar to Charlottesville’s when it comes to recording interrogations—tape it when possible —died in the House of Delegates earlier this month.
Harding said he has reason to hope that his plans for a justice commission will make progress in the next few months, and he hopes its creation will help bring law enforcement officers into the conversation and make them more willing to consider reforms. “But,” he conceded, “there’s going to be pushback.”
Albemarle County Sheriff Chip Harding is a vocal advocate for establishing model law enforcement policies designed to prevent wrongful convictions—including interrogation techniques that won’t elicit false confessions from suspects.