A Lesson in Confessions

by Katherine Scardino

Fade in to a dimly lit small room with a low bulb hanging over a square table. Two hardback, uncomfortable chairs. There is one door to the room with no windows. A young black man is sitting in one of those straight-back chairs facing an older, white man with a badge so big one could not miss it hanging over his belt.

The white man has on stiff, creased Wrangler jeans with shiny polished black cowboy boots and a starched white shirt. His hair is short and graying. His red face is about an inch from the sweating face of the young black man and he is yelling and pounding on the table.

“You know you are lying! Tell me you did it and we can go all go home!”

That is what we generally think of “confessions.” Not very nicely done . . . but productive. However, as with everything else in our lives, I repeat what I have said many times before on Women in Crime Ink - THERE ARE RULES.

When it comes to an accused person giving a statement, here is "The Rule of all rules":

“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion under the rules hereafter prescribed.”

We have all heard officers on television (or maybe, even in person) recite your “rights” to you. Those rights are referred to as your “Miranda rights,” a slangy term for the holding in Miranda v. Arizona, a case decided by the Supreme Court in 1966. Two of these rights that must be read to you at the time you are making a statement to the police is that (1) you have the right to have an attorney present to advise you before and during any questioning and (2) you have the right to remain silent and not make any statement at all.

There have been literally thousands of cases citing Miranda v. Arizona, where a defendant is contending that his constitutional rights have been violated in some manner. In most criminal cases, the officer at least makes an attempt to question an accused citizen. This accused citizen either cooperates and tells the officer everything he knows, or he refuses to make a statement.

But, whatever he does, it must be done voluntarily. In other words, the officer cannot beat a confession out of you; he cannot promise you something that he knows he cannot deliver to you (such as your freedom); he cannot withhold your attorney from you if he is there and wants to advise you. You have the constitutional right to refuse to say anything, and especially that which may tend to incriminate you.

I bring all this up to you, because Texas has a Death Row inmate who very recently just hit the jackpot - a Federal judge here in Houston just gave him a new trial. He is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Guidry has already had his retrial; he heard that one-word verdict and the dreaded death sentence for the second time. But Mr. Fratta’s new trial is yet to come.

In past postings, I have talked about these rights that you and I have and how important they are. I know some of you will start posting your disgust with the criminal justice system immediately upon reading all this. But, remember, the defense lawyer’s objections that were ultimately ruled valid had to do with a police officer not allowing Mr. Guidry to talk to his lawyer and his confession being admitted as evidence in front of all three juries, who then handed down death sentences.

Think about how our system would work if the rules were different. Imagine your son or husband being arrested for suspicion of committing some crime and being placed in similar circumstances.

Does it make a difference in the way the rule works whether the person is guilty or not?

How would anyone know that during that early stage of investigation?

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

A lot of questions.

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Really, THIS Time I am Telling the Truth!

by Pat Brown

A myth about interviewing leads one to believe that a crack interviewer will know just the right thing to get even a psychopath to confess. There is an old story about criminal profiler John Douglas who cleverly plans a strategy to push the buttons on the suspect in the brutal rape and murder of 12-year-old Mary Frances Stoner. Darrel Gene Devier is brought in to a carefully staged interview room by a huge team of law enforcement. Files are stacked up (most of them are fake) with his name conspicuously displayed on them. Then the investigator talks about the blood spatter he knows is on Devier's clothes (though there is actually no evidence). Now the suspect is very unnerved. But the key, Douglas says, to breaking this man down, is the big, bloodied rock he used to kill the girl. It is placed on a table in the room.

Devier can't keep his eyes off the rock.

Douglas explains the methodology and the results of this psychological strategy:

I warned the interrogators that they'd have to sink to Devier's level. They would need to project blame onto the victim by suggesting that she'd seduced him. Allowing Devier a face-saving scenario was their only chance of getting a confession because Devier knew that Georgia is a death penalty state.The instant Devier entered the interrogation room, he was transfixed by the rock. He started sweating, breathing hard and cowering. As planned, interrogators projected blame onto the victim. Devier got really quiet. An innocent man will scream and protest, but a guilty man will listen to what you have to say if you've surprised him with a chance to save face.

This may sound like a pretty brilliant ruse conducted by a skilled interrogator but Devier's confession had nothing to do with saving face. It had everything to do with saving his butt.

I will use a more recent case as an example of how this works. Keep in mind that a psychopath has no empathy or shame so he feels no remorse nor does he care what you think about him. He only does what is he thinks will get himself the best results. Clever though the interrogator may be, the manipulation has less to do with psychology than conning the suspect into believing you have more evidence than you do so he will confess.

Recently in Maryland an interrogation was videotaped. The video shows exactly why this is true. Gary Smith, a former Army Ranger, is being questioned about the shooting of his roommate, a fellow Ranger. He tells three stories.

Story One: Smith tells the police he arrived home to find his friend, Michael McQueen, dead. No gun was present at the scene.

Obviously the police label this a homicide as dead men do not get rid of guns. They focus in on Smith, something he was hoping they would not do. But now that they have focused on him, he has to come up with a good story to get them to go away. He decides he will convince them it is a suicide.

Story Two: Smith weeps and tells the police he altered the crime scene because he was afraid he would be accused of killing McQueen. He said he came home and found his roommate slumped over in the chair, the gun on the floor below his right hand. He guessed his buddy had found Smith's gun from under the counter where it was hidden. He took the gun and threw it in the lake. Smith swears on his dead buddy's grave this was the truth.

The police let him know that his story isn't adding up. The gun hadn't been in the house under the counter; they learned it had just been brought from his mother's house. Now Smith knew that it would seem like a premeditated homicide if he brought the gun the night the man was killed. He needed a more believable story.

Story Three: Smith brought the gun to the house that night and either left it on the counter or on the floor. He warned his roommate the gun was loaded but while he was in the shower, he heard the gun go off. With so little time between his arrival and the gunshot, Smith figures the police will believe the shooting could have been accidental.

The police have evidence that the blood-spatter patterns do not match Smith's story. Plus, if Smith's statement were true, the gun should have been on the floor below McQueen's right hand. But that's where the TV remote control was found, not the gun.

Smith has been inching closing and closer to the truth, not because the interrogator is breaking down his psychological barriers, but because each time he believes the police have a certain added bit of damning information, he reassesses his situation and decides what is the next best thing he can say to get the lowest penalty possible.

At this point in the interview, Smith has admitted to bringing the gun and being in the house when the gun went off and altering a crime scene by removing and disposing of the weapon that killed McQueen. He tried to be totally innocent and get no charge, but when he couldn't get around the gun issue, he was willing to admit to disposing of the gun because this is by far a lesser charge than murder.

Now the police are letting him know the blood-spatter pattern contradicts his story. And in this interview saga, the remote control becomes Douglas's bloody rock. Look, they say. Look at that television remote control over there. We think, Mr. Smith, that he had that in his hand when he died and he wasn't holding the gun.

Now for the confession. Smith believes they have him cornered. He stares at the remote and tries desperately to come up with the next best story that will keep him out of the electric chair. He needs to believe the police will accept this story and charge him accordingly. He will confess but not out of remorse or because he wants to save face. He wants to get out of a death penalty conviction. What will his story be? What story will the investigator offer for Smith to agree with so that he thinks he will get out of the most serious charge? Readers?

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