Story and photographs by FRIDERIKE HEUER
“Most of us, no matter what we say, are walking in the dark, whistling in the dark. Nobody knows what is going to happen to him from one moment to the next, or how one will bear it. This is irreducible. And it’s true of everybody. Now, it is true that the nature of society is to create, among its citizens, an illusion of safety; but it is also absolutely true that the safety is always necessarily an illusion. Artists are here to disturb the peace.”
– James Baldwin, “An interview with James Baldwin” (1961), in Conversations with James Baldwin
IT SEEMED COUNTERINTUITIVE, no, odd, really, that my first reaction to a piece of gorgeous, intense, riveting music was thoughts about visibility. After all, what we perceive is more likely associated with visual media, film in particular, and yet here I was surrounded by sound, listening to the orchestra dress rehearsal of The Central Park Five, Portland Opera‘s upcoming production.
Maybe it’s not so odd, after all, when you consider that truly good art makes things visible that are otherwise hidden beneath the mere consideration of images or words. Maybe it is the emotional reaction that music in particular can stir up that connects you to what lies invisible under the surface of narratives. This might be particularly true for stories that you intellectually witnessed in your own time, and thus think you have a grasp on, until art opens up a different dimension previously foreclosed, disturbing the peace. That said, the video projections, the lighting and two opera stages on top of each other, echoing separate worlds and power hierarchies, visually helped intensify the emotions.
The Pulitzer Prize-winning opera, composed by Anthony Davis (libretto by Richard Wesley, conducted by Kazem Abdullah, stage directed by Nataki Garrett), recounts the horrifying 1989 tale of innocent youths aged 14-16 accused and convicted of beating and raping a woman in New York’s Central Park, after they falsely confessed but then recanted, with no physical evidence connecting them to the crime. The story focuses on the many aspects that led to this outcome, with lasting damage done to the defendants despite the eventual vacating of the verdict after DNA evidence and the confession by the true perpetrator exonerated them. The case made salient the racial inequities in our criminal justice system. The $40 million settlement with the state of New York did not buy back the time lost and sorrow inflicted on kids (and their families and communities) as young as 14 who spent years incarcerated (the one 16 year-old spent 13 years in adult prison!) for a crime they did not commit.
For me, the music captured the tension inherent in an adversarial system built into the criminal courts, the racism both structural and individually applied that so often erupts in cases of violence against white women. It also echoed the preconceived assumptions about crime-prone Black youth, and the career ramifications for police and DAs as well as aspiring politicians like former President Donald Trump, who involved himself in fashioning public opinion in what turned out to be a stepping-stone to an election campaign.
The music conveyed the fear, paralysis, and disbelief of the victims of procedural malfeasance. For me, it made the legal and social injustice of this case visible at a gut level, allowing us for a short while to walk in the defendants’ shoes.
Others at OregonArtsWatch will write about the Portland Opera production in coming weeks: Watch for a background story by Brett Campbell and for Angela Allen’s review. What I want to do today is to make visible, from my perspective as a former lawyer and psychologist, how this is not an isolated case, however brilliantly captured by Davis and the musicians who moved me so. Let’s look at both the myths surrounding false confessions and the general processes that can create them in ways they affect criminal trials every single day.
I BELIEVE THAT MANY OF US share deep concerns about our legal system. The U.S. has 5 percent of the world’s population, but 20 percent of the world’s prisoners – a huge number, especially when we consider the horrific circumstances that define incarceration (Ref.). In addition, Black Americans are incarcerated at five times the rate of white Americans (Ref.). Black Americans constitute roughly 14 percent of the U.S. population, while in some states they constitute more than half of the prison populations. You have to worry about what these numbers mean.
Moreover, there is no question that the legal system routinely makes horrible mistakes, including getting the basic facts wrong, as the Innocence Project has proven with the high numbers of DNA exonerations they have brought about. Specifically, scholars talk about myths that pervade and erode the legal system. One example includes the so-called sexual assault myth – the idea that the prevalent form of sexual assault involves a stranger leaping out of the darkness. The reality is instead that sexual assaults are vastly more likely from someone you know. Given that the American legal system counts on the common sense of jury members to reach a sensible verdict, we have a problem if some common-sense beliefs are mistaken and rely on myths: It can have tragic consequences in the legal system and elsewhere.
A different set of myths concerns confession evidence, starting with the widely held belief that false confessions are quite rare. And here the common sense appeal is powerful. After all, why would someone confess to a crime, and invite punishment, for something they didn’t do? As a related myth people assume a false confession would be produced only by someone who is mentally ill or attention-seeking, or someone who has been physically coerced (yelled at, threatened, beaten) by the police. (Ref.)
There is no doubt, though, that these myths are myths. For example, a national database of exoneration cases shows us that 13 percent of the cases involve confessions we now know to be false (another take by the Innocence Project that relies on DNA evidence only claims the rate may be as high as 1 in 4.) The numbers get worse, much worse, if we zoom in for a closer look. In the same database, among exonerated juveniles, 36 percent involved confessions we now know were false, and if you look at the youngest juveniles in this data set (12-15 years old) 57 percent confessed to a crime they did not commit. These were, of course, the ages of four of the Central Park Five. Kids this age are less mature, more impulsive than older ones; they are more gullible, and they don’t always think about long-term consequences.
HOW IS IT POSSIBLE that there are so many false confessions? Let’s look at the interrogation process. Police have become remarkably skilled in what scientists call “psychological coercion” (note: not physical coercion). This process involves many specific levers, often used in a back-and-forth combination, but there are three overarching themes. First, no matter how many times the suspect denies the crime, these denials are refused, ignored, rejected, or even sneered at. The message to the suspect therefore is that not confessing is not an option. To drive this point home, this process can stretch out over two or four or ten hours, leaving the exhausted suspect too tired to resist, and eager to do anything to escape the interrogation room. To up the pressure, police do most of the talking, set the agenda for topics of conversation, decide when breaks are happening, and in classic settings – small room, no windows, no clock, no distractions, uncomfortable chair – they keep at it to maximize confrontation.
The second broad theme involves multiple efforts toward minimizing the cost of confessing in the eyes of the suspect. This includes offering the suspect a variety of excuses, “You were drunk, you were under stress, you just ran with the crowd, they asked for it!” and with these excuses the suspect might think s/he is confessing to something that is understandable and not so blameworthy. Often this minimizing is established via presenting a contrast: “We know you are not a terrible person; you’re just a guy who made a mistake.” The police also puff up whatever evidence they have (including utterly false claim about the evidence, which they are allowed to make since they are legally allowed to lie in interrogations). The message to the suspect here is that they are likely to be convicted with or without a confession, so that confession costs them nothing.
The third major goal involves a package of strategies that suggest benefits from confessing. Police are not allowed to promise leniency, but they are wonderfully skillful at hinting at leniency along the lines of “How do you think the prosecutor is going to react when she sees that you stonewalled us? And how do you think she would react if you were open and took ownership of what you had done?” Interrogators also suggest psychological benefit from a confession once they have determined the defendant’s allegiances: They lean on religion, if they think you’re religious. They stress the aspects of healing and closure for the assault victim if they think you have some loyalty to the victim. They point at the responsibility toward the community if they believe you have strong links there.
Do these levers work every time? Surely not, but they work often enough that false confessions do happen, and that is profoundly troubling, because a confession of almost any sort virtually guarantees a conviction.
WHY DO POLICE ENGAGE in these tactics? For one, and the data are clear on that, because they do result in factually true confessions a large percentage of the time. But many interrogators also deny the possibility that false ones are happening at all, or are happening with regularity; or they simply are willing to tolerate this error.
Secondly, police are explicitly trained to do interrogations in this way, with many training programs across the country based on what is called the Reid Technique, which instructs in the above-listed application of tools: coercion, situational control, minimizing the cost and maximizing the potential benefits of confessions in their communications to suspects. Even if officers have not had formal training, they learn about these tools from colleagues who have had the training, and so continue in this vein.
Police understand that their interrogation techniques are confrontational, often a determined push to confirm their suspicions by alternating carrots and sticks, and even coercive. Police believe, though, that we are all protected by two safeguards. As it turns out, both of the safeguards turn out to be hollow.
One safeguard relies on the idea that police can figure out before the interrogation who is guilty and who is not, and therefore they aggressively push for confessions only with presumed guilty suspects. There is, unfortunately, overwhelming evidence that most police officers, when trying to decide who is lying to them and who is not, perform at a level only marginally better than a coin toss. This guarantees that they will use coercive techniques with people that they have wrongly decided are liars.
The other supposed safeguard comes after the interrogation, when police seek further evidence that will corroborate, or perhaps undermine, the confession. Here we run into a problem called confirmation bias, with the essential notion being that, once you have a confession, it biases what other evidence you look for and how you interpret what you encounter. The result? A false confession can invite the collection of further evidence that seems to support it, so that bad evidence leads to more bad evidence.
WHAT CAN BE DONE about this, especially given how these issues interweave with strong patterns of racial bias? That bias manifests itself in some officers’ willingness to assume a Black suspect is likely guilty, and to proceed accordingly in the interrogation. That bias is also evident in the power dynamic of an interrogation, with a police officer relying on social distribution of power to bully a Black youth.
There is also a tendency for interrogators (as well as teachers and school administrators) to bear in mind that a white kid is a kid, while failing to make the same crucial adjustments when interacting with a young person of color. Black girls are seen as more adult than white girls at almost all stages of development. Black boys are constantly judged to be older than they are (adultification) and, importantly, the older they seem, the more we consider them culpable. (Ref.) Finally, given the economic inequities in our country, a white suspect is far more likely to have decently paid legal representation compared to the resources available to persons of color.
Where does this leave us? Here, the importance of art. Narratives and documentaries can inform. Art can move, often in a lasting way. Will it move police officers to change their practices? Perhaps not. Will it shift legislatives votes? Likely not.
But we’re at a place in which ordinary citizens can have extraordinary power. In a criminal trial, jury verdicts must be unanimous. (This has been true in 48 states for years; it is only recently true in Oregon and Louisiana). On a jury, a single citizen empowered by this production, remembering his or her reaction to the music and the story it conveyed, introduced to reality rather than clinging to myth, can hold firm and may be the stalwart obstacle to decisions resting on false beliefs and leading to catastrophically wrong verdicts.
Portland Opera’s choice of a timely and important piece of contemporary music, beautifully staged and performed, might have long-lasting consequences – and not just providing us with a riveting night at the opera. Art empowering justice.
I STARTED WITH a James Baldwin quote, so let me also end with one:
“Well, if one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected—those, precisely, who need the law’s protection most!—and listens to their testimony. Ask any Mexican, any Puerto Rican, any black man, any poor person—ask the wretched how they fare in the halls of justice, and then you will know, not whether or not the country is just, but whether or not it has any love for justice, or any concept of it. It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.”
– James Baldwin, No Name in the Street
The Central Park Five
Composed by Anthony Davis
Libretto by Richard Wesley
- March 18 • 7:30PM Get tickets
- March 20 • 2:00PM Get tickets
- March 24 • 7:30PM Get tickets
- March 26 • 7:30PM Get tickets