Oklahoma Criminal Defense Blog

A confession, or what the prosecution will call a confession is usually very compelling evidence to a jury.  And when other evidence in the case is inconsistent with guilt, prosecutors hardly ever slow down on the train to conviction.  It has taken DNA evidence to prove scientifically in case after case that the confession given was false.  Of the 289 convictions that have been reversed from later presentation of DNA evidence, about a quarter of them involve false confessions.  Of course, DNA evidence is available in only a fraction of crimes, so there is no telling how many false confessions have put innocent people away – executed them.

One such case was in Oakland, California.  It arose from the death of Antonio Ramirez.  A minor named Felix was the person charged with murder. After Ramirez was shot 7 times, police arrested Felix, 16 years old at the time.   It was late, the police isolated him without a lawyer and refused his requests for his mother.  The police hammered on him until he started telling them what he thought they wanted to hear.   That is the usual and expected progression given enough time to wear down the suspect, as the police know.

When police asked for a diagram of the crime scene, Felix’s efforts were so inaccurate the police never showed his product to the jury.  He told police he went one direction to escape, but they had to correct him.  When he described his escape route without mentioning an alley located there, the police added the alley, so he adopted it into his statement.

When the police asked him about the gun, Felix said he didn’t have a gun.  The interrogators went ballistic, of course, and started yelling at him. At this point, he was definitely feeling threatened, so he made up a detail that would later help him.  He told them he gave the gun to his grandfather.  As was later proved, both his grandfathers were deceased.

Once gone through, the story was ready for the police to present.  They taped it, sure they had fashioned a winner.  But the police had forgetten to feed one critical detail to Felix.  When he read the complaint in court days later, he learned for the first time the date of the crime to which he had confessed.  On that day, the day Antonio Ramirez was shot to death, Felix had a perfect alibi.  He had been locked up in juvenile detention.

Even with that alibi, however, his criminal defense lawyer was afraid to go to trial.  That’s how powerful confessions, however trumped up, are to a jury.  Juries simply cannot believe someone would confess to a crime they did not commit.  Even judges do not want to believe someone would confess to something they did not do.  The many trumped trials during the Stalin purge trials in the Soviet Union all featured confessions.  They were all coerced, yet even those close to the events believed the condemned never would have confessed unless they were guilty.  At least they thought that until their turn came to enter the Stalin show trial machine, they confessed falsely, and were executed.

Psychological studies show they do, however.  Especially children, the mentally ill and mentally retarded do, as well as those who are drunk and high.  All such people share a vulnerability to coercion and suggestion.  Many are eager to propitiate authority figures, many are impulsive.  Just as Felix did, children often believe they will be put in jail if they continue to resist the importunities of police and believe they will get to go home if they cooperate with the police.  This is the opposite of what a mature adult would expect, so it runs counter to what jurors expect anyone else to believe.

There are 33 federally-recognized Native American tribes in Oklahoma, and 310 Indian reservations in the country.  Each tribe legislates and administers its own laws, including criminal laws.  Their laws can punish only up to 3 years for a violation, so for more serious crimes, the tribes send the matter to the federal government for prosecution.   But that hasn’t been working so well.

The rate of crime on Indian land is high.  Statistics shows the following:  Indian reservations have violent crime rates exceeding 2 ½ times the national average.  Indian women are 10 times more likely to be murdered than non-Indians and are sexually assaulted at 4 times the national average.

These crimes are investigated by the tribes and the F.B.I., and they are sent to the Department of Justice for prosecution.  That means the local U.S. Attorney’s offices prosecute them, but they are filing charges in only half the murder cases sent to them and only one-third of the sexual assault cases.  The tribes can’t understand why.

In 2011, federal prosecutors declined to file over half the most serious crimes of all types on Indian reservations.  They declined 61 percent of sexual abuse of children cases and declined 65 percent of rape cases.    But contrast, the Justice Department declined only 20 percent of drug trafficking charges for the country as a whole.

The F.B.I. is notoriously slow and painstaking in its investigation of crimes.  Any experienced criminal defense attorney will tell you that.  But as the years tick past while matters are “under investigation,” no one from the reservation has been informed of anything.  One problem may be the quality of investigations by the tribe police because federal prosecutors are much more selective than state prosecutors in accepting cases to file.  But it is the F.B.I. that is investigating many or most of these cases, so that does not explain the startling lack of prosecutions.  A former tribal judge has complained that U.S. Attorneys declined to file a rape case of a 13 year old girl by a 31-year-old man, even though two family members interrupted the attack and there was a DNA match.  Neither did the U.S. Attorneys offer any explanation why no charges were filed.  After the U.S. Attorney declined to file, the man was eventually prosecuted in tribal court but received only a year in jail.

Matters have caused so much outrage in Indian Country that one family has filed a lawsuit in Montana to complain about the federal government’s failures to enforce the law.  The  family of Steven Bearcrane has brought an action in U.S. District Court in Montana, alleging lack of due process and lack of equal protection under that laws.

The family of Steven Bearcrane was so incensed that the federal authorities did nothing to prosecute the death of Steven Bearclaw on the Crow Reservation that they brought a lawsuit in federal court against the FBI and the U.S. Attorney’s office and a couple of individuals.  They filed it interestingly under the Administrative Procedure Act rather than as a civil rights lawsuit, and claimed the U.S. Attorney’s office in South Dakota had followed “a pattern and practice of declining prosecutions in cases in which the victims of those crimes are North Americans.”

The district court agreed that precedent had established that law enforcement officers cannot exercise their discretion in a discriminatory fashion.  However, upon several legal bases, the district court dismissed the claims that was based on due process of law as to the FBI and the U.S. Attorney’s office, keeping alive only one claim against one Matthew Oravec.  The point here is not so much whether they prevail in their lawsuit but the situation is so unsatisfactory that they feel the need to sue the authorities for protection.

Elderly prisoners, both male and female, are the most rapidly growing group in American  prisons.  Staff in the prisons are facing increasing difficulties in providing these prisoners
appropriate housing and medical care.  Because of their higher rates of illness and physical and mental impairments, older prisoners incur medical costs three to nine times as high as those for younger prisoners.

Some reports put the number of convicted state and federal prisoners who are 65 or older at growing between 2007 and 2010 at 94 times the rate of the overall prison population.  The number of sentenced prisoners 55 years or older grew at six times the rate of the overall prison population between 1995 and 2010.  Commentators have reminded us that prisons were never designed to be geriatric facilities, and they simply do not have adequate facilities for the aged prisoners.  Yet prisons are operating what amounts to old age homes behind bars.

Many of today’s prisoners will not get out of prison, thanks to the trend toward long sentences, until they are very old.  Some, of course, will never get out, but they will live longer than prisoners in earlier years.  Nearly one in ten prisoners in state prisons, more precisely 9.6 percent,  is serving a life sentence. An additional 11.2 percent of state prisoners have sentences longer than 20 years.

A study of twenty prisons of 20 prisons in nine states interviewed prison officials, corrections and gerontology experts, and the prisoners. The study found officials scrambling to respond to the needs and vulnerabilities of the older prisoners.

Yet even with these added burdens, the prisons are experiencing shrinking budgets.
They have other obstacles in old prison architecture that is not designed for common age-related disabilities.   Prison officials also must deal with limited medical staff and medical facilities, lack of planning and a paucity of support from elected officials.  And prison officials must deal with all these issues in the context of meeting the press of day-to-day operations.

Serving time in prison can be hard for anyone, but it is particularly challenging for the growing number of older prisoners who are frail, have mobility, hearing, and vision impairments, and are suffering chronic, disabling, and terminal illnesses or diminishing cognitive capacities.

Prison facilities, rules, and customs were created with younger inmates in mind, and they can pose special hardships for older inmates. Walking a long distance to the dining hall, climbing up to a top bunk, or even standing for count can be virtually impossible for some older prisoners. Incontinence and dementia present special problems.  Prisons with high proportions of elderly prisoners have reported staff behavior has had to adapt to the realities of aging bodies and minds.  For instance, staff who work with the elderly know it makes no sense to yell at a prisoner who doesn’t understand what is being yelled.  Older prisoners have to be given more leeway when it comes to enforcing the rules.

Unless there is some moderation to the policies that tout being especially “tough on crime,” the number of aging prisoners will continue to grow.   These policies include long mandatory minimum sentences, increasing life sentences, and reduced opportunities for parole. These policies keeps many older prisoners remain incarcerated even though they are too old and infirm to threaten public safety if released.

A collection of statistics gives some particularity to these descriptions:  One in ten state prisoners is serving a life sentence;  fifteen percent of state prisoners age 61 or older have been in prison more than 20 years;  Eleven percent of federal prisoners age 51 or older are serving sentences ranging from 30 years to life, and there is no federal parole; in Florida, the 16 percent of the prison population 50 years or over accounts for 40.1 percent of all episodes of medical care and 47.9 percent of all hospital days.

Some ideas for addressing these issues including a review of sentencing and release policies to determine which could be modified to reduce the growing population of older prisoners without risking public safety.  Knowledgeable critics have proposed other ideas as well including developing a comprehensive plans for housing, medical care, and programs for the current and projected populations of older prisoners and modifying prison rules that impose unnecessary hardship on older inmates.