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Last night on the radio I was discussing this article by Chris Roach on the Innocent 8. Roach’s belief that the seven Marines and Navy Corpsman charged in the Hamdaniya case are guilty is based on “statistical probability” and his assertion that “there are likely very few false confessions in the American judicial system.”

There are quite a few problems with Roach’s research, however, and the conclusions that he makes are, by nature, also erroneous. The problem is that those who read Roach’s intellectual-sounding ramblings could very easily be swayed into believing that the Innocent Pendleton 8 are guilty, and nothing could be further from the truth. Let’s take care of this “confession” argument once and for all.

Errors + Errors = Wrong Conclusions

Before we get started, let’s take a look at something that should tell you right away about how much Roach knows concerning the case.

“…the foundation of [the Pendleton 8’s] defense are the alleged conditions of their clients’ confessions.” - 9/13/06

This shows a misunderstanding of the basic facts of the case, and especially the defense. The “foundation of the defense” is that the men did not commit the acts they are charged with. It’s not a complicated thing here. They’re not saying “We’re hoping to get off on a technicality.” They’re saying, “We did not kidnap, tie up, steal from, or murder this man.”

Now that you’ve seen the above statement from Roach, you can better understand my point. If you don’t even understand the facts, everything after that will be a faulty conclusion.

Roach goes on in the same article to talk about the “confessions” that the men supposedly made.

These incriminating statements are the key to the case.

Not so, says Donald G. Rehkopf Jr., who is a former Air Force prosecutor and defense attorney with a robust 30 years of experience trying cases.

“Confessions should be the icing on the cake,” he said. “If all the prosecution has are incriminating statements, then their case is weak.”

Weak? You mean confessions aren’t the “queen of proofs,” as Roach claims? If confessions are the icing, then where's the cake in this case?

The public generally considers confessions to be much more powerful than the legal profession does…

Prosecutors need supporting evidence because “of the very high percentage of confessions that are totally false or half false,” said Rehkopf, now a civilian attorney who practices law in Rochester, N.Y.

“Just look at John Mark Karr’s totally bogus confession in the JonBenet Ramsey case,” he said.

Jack B. Zimmerman, a noted defense attorney from Houston, agreed with Rehkopf’s assessment.

“I don’t think it is hopeless for the defense’s case if there is a statement,” Zimmerman said.

Roach isn’t finished, however, and goes on to reiterate his claim that the Marines and Corpsman are not “acting innocent.”

Why would someone that is a Marine–tough as nails and schooled in the importance of honesty and integrity–wimp out as soon as he is confronted by an NCIS investigator if he were actually innocent, did nothing wrong, and saw an incriminating diagram that had no relation to reality?

Well, let’s see. Here’s a list of factors that may have contributed to that.

• The men were pulled straight from combat into questioning with no down time, no “decompression,” no changes in scenery. They were interrogated, in theater.
• They were questioned for 7 hours or more, without a break, including trips to the bathroom.
• They were denied legal counsel during the interrogation, even though they asked several times to speak with an attorney. Magincalda was not assigned an attorney for eight days after he returned from Iraq.
• The NCIS have a whiteboard in their area in Iraq, where the men were interrogated, that has a piece of rubber hose above it. The caption beneath it reads, “My Psychological Friend.”

Just in case you were wondering, some of the above tactics are heralded by the Left as being inappropriate for use at Guantanamo Bay.

Confession? Statement?

Now let’s take a look at what exactly the difference is between a confession and a statement. It’s not all just choice of verbiage.

“A confession is an admission that an alleged crime was indeed committed. A statement could recite facts that state an act occurred, but provide legal justification (for it),” Zimmerman said.

The men could have made a statement saying, “Yes, we took fire from this man. We returned fire, and we killed him.” That’s not a confession.

Roach would ask why the defense attorneys are looking to suppress the statements if they truly are not incriminating. Again, let’s think about this. It’s really rather simple.

If the statements were taken under duress or during improper questioning, then they are not valid “confessions.”

Is there anything in the statements that is demonstrably false? If there is, maybe (the defendant’s) memory is screwed up or he is inventing it because he is being pressured.

“You also look at all the statements for similarities and dissimilarities. If they read too much the same, then maybe the agent doing the questioning was writing the statements and just having the person sign it.”

Let’s also consider the fact that NCIS’ reputation precedes them.

“If there is a bright spot for the defense, it is that there are many more problems with the Naval Criminal Investigative Service taking statements compared to civilian (police department) investigators.”

Take Your Numbers And…

Roach likes numbers. He spouts statistics about conviction rates in the U.S., the use of DNA to clear some who maintain their innocence, and the success rate of those DNA tests. Here’s the problem. (Or, should I say, here is the list of problems.)

• Parameters need to be comparable to actual incident to be able to draw inferences. Would it be fair to make a conclusion about a case where a battered wife killed her husband based on data from gang murders and serial killers?
• Research needs to have been done using military statistics and interrogations tactics. Again, you cannot compare the civil court system with the military justice system. These are apples and oranges.
• Research needs to have been done on those cases in which all physical evidence points to the innocence of the defendants. Don’t make a statement based on a pile of cases where the evidence points to the accused as being guilty. You’ll notice that there is no physical evidence in this case pointing to guilt. All they have are the statements.
• Research needs to be done in cases where proof of improper interrogation methods being used are presented in court as evidence. I’m sure there will be a wealth of information about improper conduct on behalf of the NCIS agents presented at trial. If you think I’m wrong, go read the list above again.

Bottom line: Statements do not mean an open-and-shut case. These men will have their day in court, and the burden of proof is on the prosecution - not the defense. Too many, including Chris Roach, seem to have forgotten that.