Child con­fes­sions taken with­out at­tor­ney present shouldn’t be used

Baltimore Sun Sunday - - COMMENTARY - By Jen­nifer Egan

Ed­ward Ge­orge Carter was a teenager in 1974 when the Detroit Po­lice pulled him off a street cor­ner and threw him into an in­ter­ro­ga­tion room. The po­lice ac­cused him of rap­ing a preg­nant Wayne State col­lege stu­dent and Mr. Carter couldn’t pre­cisely re­call his lo­ca­tion dur­ing the at­tack. Mr. Carter never con­fessed, but his state­ments were twisted by the pros­e­cu­tor as ev­i­dence of his guilt and to dis­credit his alibi wit­ness. He spent 36 years in prison be­fore he was ex­on­er­ated when the fin­ger­prints from the scene were tested and matched a known se­rial rapist.

Mr. Carter was one of my first clients; his case is part of what drove me to be­come a ju­ve­nile pub­lic de­fender. I have since rep­re­sented hun­dreds of chil­dren, but Mr. Carter was all I could think about last week when Al­fred Chest­nut, Ran­som Watkins and An­drew Ste­wart emerged from the Bal­ti­more City Cir­cuit Court­house on Calvert Street ex­on­er­ated men. Like Mr. Carter, they were black teenagers who were tried as adults and con­demned to die in prison. Like Mr. Carter, they spent 36 years be­hind bars for a crime they did not com­mit. Like Mr. Carter, in­ter­ro­ga­tions of teenagers with­out par­ents or at­tor­neys present were used to se­cure their wrong­ful con­vic­tions.

While these cases may seem ex­cep­tional, data makes clear they are not: ac­cord­ing to the Na­tional Registry of Ex­on­er­a­tions, 36% of ex­on­er­a­tions al­legedly com­mit­ted by youth in­volved false con­fes­sions, triple the es­ti­mated rate of false con­fes­sions over­all.

The prob­lem isn’t just false con­fes­sions, even the guilty have the right to re­main si­lent. But as the Supreme Court has con­firmed, ado­les­cents lack the ex­pe­ri­ence, per­spec­tive, de­vel­op­men­tal ma­tu­rity and judg­ment to rec­og­nize and avoid choices that could be detri­men­tal to them.

Young peo­ple are ex­tremely sus­cep­ti­ble to pres­sure from author­ity fig­ures, mak­ing them vul­ner­a­ble dur­ing the pres­sure­cooker en­vi­ron­ment of po­lice in­ter­ro­ga­tion. Yet cur­rent law places min­i­mal re­stric­tion on the in­ter­ro­ga­tion of youth. An as­tound­ing 90% of kids, when con­fronted by law en­force­ment, give up their right to re­main si­lent — of­ten with­out ever un­der­stand­ing what it means. Re­search shows the Mi­randa warn­ings re­quire an eighth grade read­ing level when a sub­ject is not un­der the stress of ar­rest.

Mary­land pros­e­cutes chil­dren as young as 7 and a na­tion­wide study of court­in­volved youth found that 70% of them have a men­tal health dis­or­der. I rou­tinely rep­re­sent chil­dren who can­not read a three let­ter word, but have their con­fes­sions used against them in court.

It is past time for us to ac­knowl­edge the le­gal fic­tion that giv­ing chil­dren a warn­ing is enough to pro­tect their con­sti­tu­tional rights. So I was thrilled to see Bal­ti­more State’s At­tor­ney Marilyn Mosby’s Op-Ed in the Wash­ing­ton Post on Thanks­giv­ing call­ing for re­forms to end the in­ter­ro­ga­tions of chil­dren un­der age 14 and to re­quire chil­dren be­tween the ages of 14 to 18 to be as­signed lawyers be­fore they are ques­tioned. Ms. Mosby’s Con­vic­tion In­tegrity Unit worked hand-in-hand with the de­fense teams and was in­te­gral in free­ing Mr. Chest­nut, Mr. Watkins and Mr. Ste­wart. In the op-ed, Ms. Mosby states that she hopes their cases shed light on the need for re­form re­gard­ing youth in­ter­ro­ga­tions

I could not agree more.

While I laud Ms. Mosby’s po­si­tion, such sen­ti­ments are mean­ing­less with­out pol­icy to sup­port them. As you read this, a 12-year-old cog­ni­tively im­paired child sits in a cage based in part on a con­fes­sion he gave to Bal­ti­more po­lice. Ms. Mosby says in her op-ed that a child’s state­ments are un­re­li­able and should never be ad­mis­si­ble in court. How­ever, that same week, a pros­e­cu­tor from Ms. Mosby’s of­fice used my client’s state­ment as part of their ar­gu­ment for why the sixth grader should be kept in jail rather than spend the hol­i­day with his family.

This is not un­usual for Ms. Mosby’s ten­ure. It’s been al­most a year since Ms. Mosby signed on to a let­ter call­ing for the use of a do-not-call-list for po­lice of­fi­cers with cred­i­bil­ity is­sues. Ms. Mosby ad­mits she has a list of hun­dreds of un­trust­wor­thy of­fi­cers, but has not im­ple­mented a do-not-call list or turned it over to de­fense at­tor­neys. That means that courts and pros­e­cu­tors con­tinue to rely on the tes­ti­mony of po­lice of­fi­cers that Ms. Mosby knows can­not be trusted.

Words are sim­ply not enough. Ms. Mosby should im­me­di­ately in­form law en­force­ment that the State’s At­tor­ney’s Of­fice will no longer use any ad­mis­sion given by a child with­out an at­tor­ney present. Such a pol­icy would end this un­re­li­able prac­tice overnight.

Jen­nifer Egan (JE­[email protected]) is chief at­tor­ney at the Mary­land Of­fice of the Pub­lic De­fender.

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