Interrogations-and-Confessions-Handbook

290 A Psychology of Interrogations and Confessions
Hourihan shows from the trial record how it is apparent that Washington did
not understand the legal implications of his waiver. In this case the trial judge
and the Virginia Supreme Court uncritically accepted Washington’s affirmative
(‘Yes, sir’) answers and failed to take a close and meaningful look at his answers
when asked to explain the meaning of the legal concepts. As discussed in detail
in Chapter 10, recent research in England into suspects’ understanding of their
legal rights shows that their claim that they understand the ‘police caution’ is a
very poor indicator of their genuine understanding of it (Fenner, Gudjonsson &
Clare, 2002). Undoubtedly, the same applies to suspects’ claims that they understand
their Miranda rights, as highlighted by the work of Grisso (1998a,
1998b). White, citing the President’s Panel on Mental Retardation, notes that
some retarded persons, wishing to please authority and not understanding the
consequences of making a confession, will ‘cheat to lose’, accepting blame for
things they have not done so that the authority figure will not be angry with
them. Thus, mentally retarded suspects such as Earl Washington may admit to
the crimes suggested to them, ‘simply because they think they are being friends
and they’re helping out the police’ (White, 1997, p. 123).
After Washington had spent ten years on death row, the Virginia Attorney
General ordered a DNA test, which showed that the sperm found in the victim’s
body did not come from Washington. Since it was undisputed that the
rapist–murderer had acted alone, this should have exonerated Washington. In
spite of this new and powerful evidence, however, the Attorney General refused
to accept that Washington might have been wrongfully convicted. Following a
public outcry, on his last day as Governor of Virginia, Douglas Wilder ‘offered
Washington a Hobson’s choice with a two-hour deadline: accept commutation
to a life sentence and end this appeal, or remain on death row and hope that
the Virginia legislature would pass a new law allowing motions to set aside
the verdict based on newly discovered evidence in capital cases after the otherwise
applicable twenty-one day deadline’ (Hourihan, 1995, p. 1472). Washington
chose to live and accepted the Governor’s offer. Fortunately, in the summer of
2000, another Governor ordered a more sophisticated DNA test and a further investigation
into Washington’s case. On 2 October 2000, Washington was finally
pardoned after the new tests found no trace of his DNA from the crime scene.
After nearly 18 years in prison, Washington was freed on 12 February 2001.
As Hourihan (1995) points out, some courts, albeit a minority, have declined
to interpret Connelly as foreclosing consideration of the mental state of suspects
who make confessions. Connelly did not do away with the due process
requirement that a court consider the defendant’s individual characteristics
as part of the ‘totality of the circumstances’ when assessing the voluntariness
of his confession or waiver of Miranda rights. It can therefore be argued that
Connelly stands for ‘the limited proposition that a defendant’s mental condition
is not in itself sufficient to make a confession involuntary’. 26
Thus, while many courts have reduced the holding of Connelly into a mechanical
two-step test—first look for police coercion, and if none is readily
apparent, the inquiry stops there—other courts have applied Connelly from
26 State v. Rettenberger, 984 P.2d 1009, 1114 (Utah, 1999).