Devil's Knot_ The True Story of the West Memphis Three - Mara Leveritt [94]
Stidham said, “Your Honor, that’s not what he’s going to testify to.”
Burnett was growing impatient. “I don’t know what you’ve got him here for. What is he going to testify to? I want to know.”
“Your Honor,” Stidham said, “he has an opinion as to whether or not the statements made by Mr. Misskelley to the West Memphis Police Department were voluntary.”
“Well, we might as well get on with it,” said the judge. “I’m going to let him testify, but I’m not about to let him testify that in his opinion, Misskelley is innocent…. Don’t even try to ask him whether or not he has an opinion whether the confession was true or false, because I’m ruling that he cannot do that…. And I’m not going to allow him to testify that, in his opinion, these officers illegally exacted or coerced a confession from him either. I’m not going to allow him to testify to that. So what’s he going to testify to?”
When Stidham described a line of questioning that he thought conformed to Burnett’s demands, the judge agreed to call the jury back and let Ofshe testify. But first, Burnett advised the jury on a rule of law. “An expert witness,” he told the jurors,
is a person who has special knowledge, skill, experience, training, or education on the subject to which his testimony relates. An expert witness may give his opinion on questions and controversies. You may consider his opinion in the light of his qualifications and credibility, the reasons given for his opinion, and the facts and other matters upon which his opinion is based. You are not bound to accept an expert opinion as conclusive, but you should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable.
With that, Ofshe was allowed to speak. He explained that he believed Jessie Misskelley had provided what he called a “coerced compliant”statement—“a false statement, one that comes about because an individual can no longer stand the strain of the interrogation and knowingly gives a statement that they know to be untrue.”
“Doctor,” Stidham asked, “is it possible for police interrogation tactics to produce a false confession?”
Ofshe answered that it was, and began to describe a recent study, reported in theStanford Law Review, which he said had identified 350 cases in which the jury had found someone guilty who was, in fact, innocent. “In that study,” Ofshe reported, “19 percent of the miscarriages were caused by false confessions….”
But Davis jumped up to object, and once again, the lawyers held a discussion with the judge that the jury could not hear. In thisin camera hearing, Davis complained that the answer had broken the ground rules Burnett had established for Of she’s testimony.
Burnett agreed. “I’m interpreting this as an attempt to use coercive techniques on the jury to suggest to them that this is a false confession, and that there is danger in their considering the confession, and that it suggests to them that they have to be very careful not to make a 350 error—whatever the percentages were.”
“What they did,” Fogleman said, referring to the defense, “is exactly what the court told them not to do.”
“No, Your Honor,” Stidham said. “I asked the witness if there were empirical scientific studies, and he was simply relating those to the jury.”
“Well, I don’t care,” Burnett said. “You’re still making inferences that, by these statements, that this particular statement was false and untrue.”
“Judge, and that’s what’s going to happen,” Davis agreed, “because of this witness, as you surmised. He’s very astute. He’s very smart, and he’s going—he’s going to slip around the ground rules, and we’re sitting here talking to a jury in terms of percentages of cases in which there’s been a false confession.”
Burnett ruled. “I’m going to sustain the objection.”
Returning