Keith Bush spent 33 years in prison for the attempted rape and murder of a 14-year-old girl on Long Island. He was exonerated at an emotional court hearing in Suffolk County Wednesday. For those interested in working in the field of wrongful convictions or those who just have a general interest in these types of cases, Mr. Bush’s case presents a microcosm of the criminal justice system’s flaws and a fitting example of what it takes to overturn a decades-old conviction. Here are some of the main takeaways from the case:
- People -especially young people – do falsely confess to crimes they didn’t commit.
DNA evidence has shown that people do falsely confess to crimes they did not commit. Nearly a quarter of all DNA exonerations involved a person who confessed to the crime. Some of the most high-profile exonerations – those of the Central Park Five; Marty Tankleff; Jeffrey Deskovic; and David McCallum all involved false confessions and all by men under the age of 18. The Innocence Project lists several reason why this occurs:
• Real or perceived intimidation of the suspect by law enforcement
• Use of force by law enforcement during the interrogation, or perceived threat of force
• Compromised reasoning ability of the suspect, due to exhaustion, stress, hunger, substance use, and, in some cases, mental limitations, or limited education. Young people who do not understand their rights and are taught to please authority figures are particularly vulnerable.
• Devious interrogation techniques, such as untrue statements about the presence of incriminating evidence
• Fear, on the part of the suspect, that failure to confess will yield a harsher punishment
2. It Matters Who the DA Is.
Suffolk County DA Tim Sini formed a unit to examine wrongful convictions in the County. While it is not quite up to the level of the Conviction Review Unit in Brooklyn, at least it exists and is looking at cases. The previous DA Tom Spota, was known to fight tooth and nail against overturning a bad conviction regardless of the evidence – once again look at Marty Tankleff’s case as an example. Spota’s office repeatedly resisted Mr. Bush’s team’s efforts to take another look at the case. Every DA’s office in the country but especially those working in high-population jurisdictions need to have a Conviction Review Unit of some kind, with independent oversight, and with proper staffing, to look under the rocks and look for cases where the system failed. Sini called the review and reversal of Bush’s conviction “a window into a very dark aspect of Suffolk County’s history.” Prosecutors need to be willing to look into that window.
3. It takes persistence.
Rarely does the first attempt to overturn an old conviction succeed, particularly in cases where there is no DNA evidence that can quickly clear a defendant. IN this case Mr. Bush’s lawyer Adele Bernhard, who runs the Post Conviction Innocence Clinic at my alma mater, New York Law School, has worked over 10 years trying to get Mr. Bush’s case overthrown. She made successive requests for documents and kept going after witnesses. In all these post-conviction cases, the defendant has exhausted all his legal remedies, all his appeals have been denied. In most cases, before the final successful motion was made, several earlier post-conviction motions were denied. One of the hallmarks of the truly innocent is that they were consistently fighting their cases and seeking help in getting justice.
4. While there are many reasons why this happens, bias on the part of police is a major issue.
I am not just talking about racial or class bias, though of course those are serious factors. In fact, in the Bush case, DA Sini’s Office reported that the arresting officer Detective August Stahl, referred to Mr. Bush as a “fucking nigger” who “should have been executed” during their re-investigation into the case. But I am talking about confirmation bias – that is, once a police officer believes he has the right guy or “doesn’t like the way he looked” when answering questions, they don’t keep an open mind. They will thereafter ignore exculpatory evidence or go through hoops to explain why it is irrelevant. Here DA Sini’s report says that all the physical evidence contradicted Mr. Bush’s confession and much of it pointed away from Mr. Bush. Police and prosecutors ignored another suspect -to the point of hiding from the defense attorney the fact that another suspect was a target. The other suspect, when confronted with his comb being found next to the body told the police he tripped over the dead body on his way home and his comb must have dropped out of his pocket. Yet Det. Stahl just recently told the NY Post he remains 100%, 200%, 1000% convinced of Mr. Bush’s guilt.
5. We need to record all interrogations from the beginning.
Here, Mr. Bush claims he was beaten with a phone book by police which is why he falsely confessed. While most law enforcement agencies videotape confessions, they don;t videotape what led up to the confession. All we see is the end product – a person sitting in front of a video camera confessing to the crime . Powerful evidence before a jury for sure. But if jurors were able to see the suspect and the police from the minute they enter the station, they would have the full picture.
Per the Innocence Project: Half the states in the country and the District of Columbia require recording of certain custodial interrogations either through statute or court action. Federal law enforcement agencies, including the FBI, DEA and ATF, are required to record all custodial interrogations of individuals suspected of any federal crime.
The states that require recording of custodial interrogations are: Alaska, Colorado, Connecticut, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Texas, Utah, Vermont, and Wisconsin. All states need to get on board.
6. When the criminal justice system goes wrong, it goes very wrong.
There is lot to be proud of in our country’s criminal justice system. Certainly the accused here have more rights than the accused in most other countries. The vast majority of prosecutors take their roles seriously and would not hide exculpatory evidence. But it has many flaws as well – underfunding of indigent defense, reliance on plea bargains, overcrowding of dockets that lead to delays in trials, etc. The issue is that when something goes wrong, the impact is tremendous. I compare it to air travel. It is far safer and less accident-prone than driving. But when an airplane accident happens, it is almost always horrific and catastrophic. The same is true in the criminal justice system. Sure it gets it right far more often than it gets it wrong. But when it gets it wrong, someone’s liberty is taken away and the real criminal remains at large. Society needs to take whatever steps are necessary to insure that the system is fair to all and that we are doing all we can to prevent wrongful convictions.
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