Just before nine o'clock last night, the jury returned guilty verdicts against all three defendants. It was absolute shambles, to tell you the truth, just absolutely really heavant blood on his clothing the day after the alleged detemp.
On a shallow mud bank and it fits through a river.
Basically, I think most of the people are used.
To me, there are good people. I think a really important question we need to ask is how many Indigenous prisoners in Australia are innocent.
This is Curtain, a podcast where we pull back the blinds to shine a light on the darkest parts of our justice system and ask who are the victims. I'm Amy Maguire.
And I'm Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service. Our producer is Paul Watts. Music by Clint Curtis and produced in collaboration with the Brisbane Indigenous Media Association. And a warning, this series contains the names of deceased peoples and has distressing content that might said
some listeners. Now another reminder, if you're joining us for the first time in this episode, you might want to go back and start from the beginning because there's a lot of information that we've covered in the first three installments of this podcast.
Last week we told you about Kevin Henry's confession. It's the only thing that really ties Kevin to Linda's death. Remember, Linda's official cause of death was drowning, and she was found on the opposite side of Tanuba House on the racecourse side of the river two kilometers downstream. Before she was placed in the Fitzroy River, she was victim to a horrific assault perpetrated by three women and witnessed by
about twenty people, including Kevin. Now, in the last episode, we read out an excerpt of Kevin's confession, which was recorded in the Rock Campden Police station by Senior Constable Leslie Girk and Senior Constable Robert Hunt.
In this episode, we're going to continue looking at Kevin's confession, and we'll be doing that with a very special guest. But before we introduce him, let's go back and stick with us to two thousand and two, the Academy Awards or Oscars over in America and ASCAR.
Nominee in nineteen ninety seven for his performance in pulp fiction, Samuel L.
Jackson. You've just seen powerful evidence of how a documentary can chronicle, illuminate, or move a people to action. One of the following documentary features has been selected to join their company.
That's Glenn Close introducing Samuel L. Jackson, who was announcing the winner of that year's Academy Award for Best Documentary.
And the Oscar Goals Too Murder on a Sunday Morning.
Now, later in the episode, we're going to be joined by one of the stars of that documentary, Patrick McGinnis, a public defender in Florida who is expert in tearing apart forced confessions.
But first, we thought we'd start this episode with a very simple experiment. I thought I would try it out on Amy I rang her earlier in the week. Have you got a pen and paper?
I've got yeah, I've got yes, I got paper, Okay, cool.
I don't know how it's going to work. Is normally the way this read technique works because you actually need to be sitting there. But so, I don't know if it will work over the phone.
We're going to at least try.
We're going to try. So you've got a pen and paper, yep, and we're recording. Yeah, okay, write down the numbers one, two, three, four. Yeah, okay, write down the name of a vegetable and tell me what.
It is now, oh, carrot?
Yeah, and pick a letter from the alphabet pretty quickly, and not J and R. Okay, what was that? H? Okay? And of those numbers one, two, and three four, circle one of the numbers? Yep? Which one did you circle two?
After I'd done that, Martin had me sign into a joint Gmail account because as I was writing down my answers, he was also predicting what I was going to write. Okay, I'm just signing into the Gmail.
Yeah, okay, you're in yep. Okay. Now it would be pretty easy for me to have sent you something. So go now to the trash trash, Yeah, what's in the trash can?
To carrot? H?
And what did you write down to carrot? H?
But did you just write that? When did you write that?
As I was asking you the question?
Really, because I don't understand how you did that?
How are you?
It's very easy. So I did it to Mum beforehand, but people can do it at time, and it's very simple. It's basically just word tricks to get someone to give an answer you want. And the reason you do that it has nothing to do with the answers you've given. Most people pick A or h N of people.
Pick carrot, are you serious?
Yeah? And left handers tend to pick two, and right handers tend to pick three. Are you left or right? Oh?
A right hand?
Okay, So that's okay. So normally what you would do is you start with the carrot type one and that's all you need because the reason you do that in an interrogation, it's called a bluff. And what you're bluffing is that I know things that I don't know that can't be true, but I'm getting you to think I know it, and because it's come from your mouth, but I know it, I'm just hiding your level of anxiety.
So now what I know I can do is I can lie to you and I can make you believe those lies, so I can feed you information and have you repeating them thinking that they're your own answers.
So you told me you led me to pick those answers.
I led you to pick those answers. And so now when I lead the interview, and we know Kevin did this in terms of giving yes or no answers, if I lead you to a question, and all I need you to do is say yes. Suddenly, that becomes a very easy way of extracting a confession. Now, that tactic I just used on Amy was one of the read interrogation techniques. They're widely used in North America, but have come under a great deal of scrutiny because of concerns
they lead to false confessions. We told you previously about the rates of false confessions in the United States. Now we aren't saying that this technique was used on Kevin, but in it you see how susceptible any person is to this type of interrogation technique. We don't know what happened to Kevin before the tape began rolling and during and when they stopped the tape twice. You, as a listener would have probably come up with your own interpretation
based on the transcript of Kevin's confession. Today, we're going to give you a little more background to the history of false confessions. And we're doing that with Pat McGinnis, who was the public defender featured in Murder on a Sunday Morning.
I'm Pat McGuinness and I defended people charged with killing people.
Murder on a Sunday Morning documented the trial of Brenton Butler, an African American teenager who was picked up while walking to put in a job application on a Sunday morning and then charged with the murder of a white tourist in Jacksonville, Florida. He was falsely identified by the husband of the victim as being the perpetrator and then later
forced to sign a statement confessing to the crime. Before that it was establishing court that he had been punched and intimidated by a cop prior to giving that statement.
Brenton was acquitted as the charge, and another man was later convicted based on a tip sent to Pat McGinnis, a personally being very inspired by mister McGinnis's legal worker over the years, all stemming from that documentary. Now we contacted Pat because the issue of false confession formed a central part of murder on a Sunday Morning. But when we contacted him, we found he had several other cases
that more closely fit Kevin's case. Rang him at his Florida office earlier this week and apologies for the sound quality of this recording.
Patrick McGinnis, thank you for joining us Son Kurt in the podcast.
Must we commend the care.
It's well known to many Australians who follow Prime Documentary's Crime series about your work on murder on a Sunday morning in the Brenton Butler case. But I was wondering if you could tell us more about the work you've done, not just on that case, but other cases that involve false confessions.
Certainly, there's a.
Topic that's interested me greatly. For over thirty years. During the course of my career, I've been involved in the representation of between four and five hundred try to be homocide. During that time a fair number of what I would
call false confessions. They come in a variety of summer confessions which are given simply a result of pusion by the interrogating authorities, and some, because of the efficacy of their efforts, are actually come to believe recently in the truthfulness of the actual confession of Vegre, which are in
fact false. Because of that, I've studied the area somewhat and try to stay a breast of developments and research in the area, and a number of the social science authors have fortunately been writing on it in the last two decades.
And can you tell me when you come across a statement or a case, is there anything that tips you off for is there something primarily you look for in a confession or a statement that suggests to you something's not wrong.
Well, for me, the most telling and obvious is is there a conflict between a statement that obtained and the demonstrable physical evidence. When people are trying to please their interrogators, they don't make statements. But unless the police, which is not uncommon, feed than information about defense, they will often get factual matters wrong. I mean, I have a case not long ago or fortunately an American law its detectives to lie during interrogation to tender's evidence that there is not.
And they took the stngman of substandard intelligence. They questioned him over a period of say seventeen hours. They told him that they had DNA which implicated him there has other bits of evidence, and he came to believe that they were correct because they gave him a mechanism for you know, they told him he had likely had a blackout and said he's been drinking and so on, and he came to believe what they were telling him. But he couldn't get a single fact about the killing correct.
On the tape, they take a topographical map, and they say, well, shows where it happened, and he points to the electric substation with no Peter, you know that or not? And he points to the parking lot and they say no, Peter, and then they pick his hand up and bring it down the map behind the hospitals and we could buy that and that sort of feeding information when he clearly doesn't know what's going on. They asked him howie builder and the whore around with my fist, and they responded, Peter,
you know that or not? If he just looks at them, nonplussing.
Us a rock.
And that's one instance. I've had many other cases where if there was a false confession, the evidence doesn't match up. In one arson case with seven dead, my client gave an elaborate story about where a non purchase kerosene and and come back to this hotel and seat of the plant. Unfortunately for the police, it wasn't a kerosene that was used as an excellant in that fire.
Right, And I'm wondering, can you tell me in your experience what percentage of these false confessions take place with no lawyer prison virtually.
All of them, and the attorney would generally never permit them to engage in the tactics which illicit false confessions. In most instances, police use some variation of what's called the read taken, which is a very old, time tested methods for getting interrogated or confessions. The problem, of course, is that it will get confessions from people who are not only guilty, but also from people who are innocent,
and they use recognizing technique clams. They want to isolate the suspect from any source of assistances such as an attorney. They during the course of the interrogation will absolutely and repeatedly reject any claim of innocence. They'll engage in deception, intimating or stating that there is evidence of the client's
guilt which doesn't exist. They'll rely on stress and exhaustion, and essentially where the person is down to the point where they either want the interrogation to stop so badly because it's so overbearing and think they can maybe sorted out at a later date, or they may come to believe that their recollection is faulty because of this physical evidence police indicate to them exist as to their guilt, and that is key to the integration process, undermining the
subject's confidence in their own claim unocence.
Right, And I was wondering too if you could tell us often police will write down the statement for a person. It's something everyone who's seen murder on a Sunday morning will be aware of. Often the words and not actually the words of the person who's allegedly giving the statement, but those of the police.
How much of a factor is that they teach forces.
On this to integrating officers they try, For instance, they have the error in assertion trick, which is where they actually write things down wrong, either if that's telling or some aspects of the statement. They're time through it a couple of times each page, and then when they get the client to sign it, they have them initial all the changes on those alleged errors to make it seem as though he actually read it and understood it and
corrected it one. In fact, that's just their technique. They are told, and I'm going right now from the LAPD Police manual. Operate on the principle of you did it, We know you did it, we have overwhelming evidence to prove you did it, but the reason makes a difference,
So why don't you tell me about it? So they start with the assumption of guilt and the work hours, frequently using a variety of techniques, including actual physical portion but also psychological portion, threats about the penalties that may be involved, or promises about the possibility of bond or a lenient sentence, and they often will either do it themselves or have a client put in actual matters in the written statement that ultimately he proved to be demonsterly
faults because they are operating on that information at the time they questioned them.
In in case of.
Mission going to go the parson, they believed it was kerosene, and so they had the clients put it in there on the tax It was not right.
So I'm wondering as well. One thing that comes up quite frequently when we're talking about false confessions and trying to explain it to the public is many people say to us, well, I would never confess to something I didn't do. I'm sure it's something you've heard. Could you
explain to people why that's just not the case. I know you've gone over the methods that law enforcement often use, but I guess can you explain to the general public why their resertion or assumption that if they were arrested for something they didn't do. They claim they would just not ever confess, And yet here we have all these confessions that are clearly false.
Well, what happens is, as a masonary they auate the individual from any sources support the consumption in a very aggressive fashion, often meddling accusations, and in getting there a certain the results of threats about in a placement in beginning, well, this is intentionally yeah, in the beginning of life, this is merely an accident. Be much less. Well, use threats, inducements,
physical intimidation, will feign sympathy. They'll provide moral justifications, such as an a rate case so that they also dressed like a tart or something like that. They are working continuously on the weekend the subject's resistance. And of course some people are more susceptible to read interrogation tactics than others. That's particularly true of those that you know intellect retardation, who are compliant or acquiesce in to authority, generally juvenile.
Yeah, I guess would you include the long would you include illiteracy in that?
Yes?
Yeah, Because in the case we're discussing on curtain the podcast, the client Kevin Henry is illiterate and yet somehow read himself the pages and pages of statements and signed them to be accurate, which seems quite fanciful. Another question I really wanted to ask you about, giving your years of expertise, is what do you think of the prosecutors who take these confessions to try, often as one of the sole pieces of evidence, often the only piece of evidence against
the accused. I'm not sure how much you can say about that, but do you have an opinion on the other side? I guess who do put someone's life on the line and in the hands of a jury, surely seeing the same holes that you do in the confession, I have fairly.
Strong feelings on it. But the fact that many times the pastors in these cases are relying on the police, and in good seats at least initially believe what the police are selling them. And of course it's easy to do that because they are each other's greatest clients. Prost furious can't function without the assistance of police, and the police are useless without the past purious, so they have an offensive to overlook and mistakes and so on in
each other's work. Where a prosecutor has no corroborating to his glovenments a statement in comparatory statement, they think under circumstances that indicate some degree of court and I think they are ethically bound. It's a big much harder before they present that to a jury.
Most of them do not right, And I was wondering as well, again given you years of experience here and as again, not to labor the point, but our listeners will know. I'm a big fan of your work and also of the documentary that covers just one case. What do you make of the law enforcement officers who extract these confessions and are there any standout features or similarities many of them may have who participate in this sort of unethical and irresponsible work.
The detectives that I have met that engage in these sort of things, they often commit themselves of the correctness of their position, and as a consequence that prepared to stretch the truth of our outright lie to pain the result that they think the condition of the person they have determined to be the kilty. Frequently they will ignore any evidence, physical or testimonial, which would suggest the innoference of the client because it said oddous with their own views.
Will they will detegrate important physical evidence simply because it's not in harmony with their periy of the case. They will if it's not recordedness, they will frequently falsify their claims as to the discussions which took place which were not taped. And generally, if they have developed these techniques, it will show up in more than one case over a period of time.
Right.
Also, I know this is something you've worked on professionally and clearly an interest of your own as well, And that's something you speak on too, is that how can we sife gouds against these false confessions ever occurring? And what measures should the community be calling to be put in place to prevent these things from happening.
Well, I believe, first off, it's so inexpensive and using to do that. All police interrogations on major crimes should be videotaped from beginning to end. You're softening them up for a period of hours, no prior conversations, and get them in the interview room, start the tape and then take it so that everybody knows what happens, and that
protects both the police and the clients. I think there should be protections for juvenile, they should not be questioned without the consent and assistance of their parents and lawn attorney. I don't know about Australia, but here in Florida, if a policeman is suspected of some wrong journey, if they are bad shooting, he will not ever give a statement until his union council is present. But we afford much less protection to the average citizen. The statement should be
checked against forensic evenance carefully and actually. And where you have officers who have participated in in proper and course of technieks of introgation on the past, they should be compelled to the leather force to receive retraining.
Absolutely, my funds. Absolutely. Just one final question. You've done some incredible work over decades. I think I'm just one of many legal advocates around the world that's been inspired by your work. I was wondering if you could tell us finally, what's your inspiration for keeping going? What's your motivating driver to keep taking these cases? That the odds are often stacked so heavily against your clients, but your
record and your success speaks for itself. But why do you keep doing this and what are you hoping is the long term effect of your work and the legacy of your work.
Well, the cases I take them for variety. In one of them, they are intellectually challenging to determine what the truth actually is, particularly when the deck is stacked against you. I having somewhat combative nature stuff it serves me well in dealing with some of the policemen that I have to.
My clients throughout most of my career have been indigen or without funds, very often without education or resources of any sort, and it's desperately important, but somebody give voice for them because it's not They have no chance of achieving justice in the system that it's designed today. And I have a competitive nature, so the challenge is really quite important to me.
Patrick McGinnis, thank you so much for your time and for sharing your expertise on the s sue with us today.
Well, thank you for having me and I hope with some assistance and enlightening folks on the bottom of Paul's confession.
Thank you so much here So Mardin having spoken to Pat McGinnis, did it change anything or your mind? I'll give you a new perspective on Kevin's case, particularly his confession.
Well, I think, if anything, it's sort of reinfalled the concerns I've always had about Kevin's confession and the way it took place. We heard Pat talk about the lack of a lawyer being present that occurred for Kevin. We heard him talk about the techniques used. They might not be formalized in Australia like they are in America, but we certainly know anyone who's dealt in the justice system
or even been arrested themselves, that these things occur. So there's certainly a lot there about his concerns about the way false confessions are extracted that I think took place in Kevin's case.
Could you pull that maybe an example that Pat might have alluded to from his own experience that might have happened in Kevin's case.
Well, we can see that there's aspects of the confession that Kevin gives that are just not accurate. He talks about things that can't possibly have happened based on the forensic evidence, the witness testimony, and their issues that Kevin has later recanted and maintained his innocence about. And so Pats talked about how often false information is given or used by police who are themselves unsure of the facts
because they haven't worked out what was going on. And we see that glaringly in Kevin's case, where he's talking about Linda supposedly being close down to the river, when in fact we know the whole time that he's referring is actually up near to Uber House.
I think the other thing that was really interesting was talking about what leads to police doing these sort of confessions, because I think Australians tend to believe police are you upstanding people, They're not going to lie or anything like that unless you have a bad history with them. But just the idea of what sort of police actually going enforce these sort of confessions, I thought was very interesting.
Yes, I think we can definitely understand that in any police department anywhere in the world, you're going to have a large percentage of officers who are very good and do their job as anyone else would, and you're also going to have those who develop a behavior and a pattern of operating in a certain way that starts unethically and ends with false confessions and the wrong people being locked up. And a lot of that is based around
their relationship to the particular individuals. In this case, we can look at the policing work done against Aboriginal people and the over policing in the United States, we see it against African American people, and it further continues down to where there's a level of arrogance, there's a level of they're going to get the one they want no matter what, and there's also becomes a willingness to lie to the witness and to do whatever's required to extract
a confession or a statement that will prove their version of events or the things they want to prove to be true. And that culture is clearly toxic once it infects any police department, and we know that to be true right around the world, and we've heard Pat today talk about that in his own state of Florida, and I think we'd be kidding ourselves to think it doesn't happen here in Australia.
The idea that when they're entering the room was a suspect that there's already a presumption of guilt, So they're actually operating from a presumption of innocence but of guilt. So they're trying to obviously get a certain outcome, aren't they. It's almost as if they seem to be following almost a script in how they're trying to for a certain information out of people.
Yeah, that's right. And I mean if you look at Pat McGinnis and his colleague and Fanew who worked on Brandon Butler's case together, they have over seventy years of experience in false confessions. And we've already heard from last week from other experts on false confessions, and we know that that's what happens. That in the courtroom, you might be innocent until proven guilty, but in the interrogation room,
you're guilty until you admit your guilt. And so there is a constant push by the police officers doing these questioning to get that individual to confess, and they're willing to get a confession clearly that doesn't even match the forensic evidence. And when you start by questioning a person focused only on guilt and establishing their guilt, you miss
a whole bunch of the truth. In miss all the inaccurate information, you push a person who is possibly innocent into being guilty, and you miss the person that could in fact be the guilty party.
We started this podcast episode with you doing an experiment on me, and obviously it worked on me. And I'm a journalist being I write a lot, so I have a high level of literacy. But for someone and you mentioned it to Pat, for someone who is illiterate and in that sort of environment, it's very easy for me to see how they're more susceptible to these sort of tactics.
And Pat even talked about the read interrogation technique as well, So it's almost as if anyone could be vulnerable to these sort of tactics if they were in the side of the law. They are in the side of the law for a crime.
Yeah, I think that's a misconception. We need to clear up that. A lot of people say I just would never confess to something I didn't do well. It's not as simple as that. You can be tricked, as I tricked you into making those errors or leading down the path I want you to. You're under a huge amount of duress and stress because you're being talked to about
a murder and a horrific assault. We also know that if someone has illiteracy issues or lower IQ or a whole other issues, but in Kevin's case, someone who left school early, that when he's being asked when the tape is off to read his own statement and sign it. He's got no idea what he's actually reading or putting his name to. It also means that the police can write things down and present them to him as if they're factual documents, and he has no way of checking them.
And they could be other witness statements, they could be pieces of information that have already been established about facts in the case, and they may or may not be accurate, and Kevin has no way of establishing that. So it becomes incredibly difficult for a person in Kevin's situation to do anything but to go along with what's happening and just try and get out of there.
And I guess we talked. When you talk to Pat, you were talking more broadly, and he was using his own experience that I guess a lot of our listeners might be thinking, how can you even bring this back to Kevin? What's been established so far? Has it even been established that there are questions to be raised about how the police acted in this specific case?
Well, I think the fact that Kevin has maintained his innocence for twenty five years would suggest that the confession he allegedly makes is not one he's ever stood by other than at the moment he gave it under duress in that interview room. We also know he said things in that alleged confession that just don't match up with the facts, and Pat talked about that as being a key indicator of a false confession. The other issue is that he never actually confesses to the crime of murder
that he's convicted of. Even in the efforts to extract this confession or take this statement, whichever way you want to look at it, Kevin never gets to the part that supposedly makes it a confession. So there's a great deal of concern immediately about the statement he's made based on everything else we know from the trial, from other witnesses, and particularly from the forensic evidence.
But where was that established? Where are we taking that from? How can we be certain?
Well, we can be certain because that information and that evidence was presented in court. So we'll hear from forensic experts, we'll hear from eye witnesses, and we'll hear from the investigating police officers themselves, and that's all in the t but Kevin Henry.
Next week we head from the interrogation room to the courtroom as Kevin goes to trial. That was episode four of Curtain for Now. You can catch up on iTunes by typing in Curtain the Podcast or go to our website www dot Curtin Thepodcast dot com.
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