Here’s a fascinating ACCA unpublished opinion.  United States v. McGinnis, No. ARMY 20071204 (A. Ct. Crim. App. Aug. 19, 2010).  Chief Judge Tozzi wrote for a unanimous panel.

SPC McGinnis was convicted of battering his 8-month-old son.  His GT score was 90 and he had a reputation for being a dim bulb, submissive, and compliant.  His platoon sergeant testified that he wanted to please others and avoid angering people. 

Army CID agents interrogated SPC McGinnis for 5 1/2 hours.  For three hours, he denied wrongdoing.  He eventually made some inculpatory statements.  After the interrogation ended, SPC McGinnis told his platoon sergeant that he told CID he hadn’t hurt his kids, but they wouldn’t take no for an answer.

SPC McGinnis’s defense counsel asked the CA to retain a specific false confession expert for the defense.  After the CA denied the request, the defense filed a motion to compel, which the military judge.  Wrong answer, rules ACCA.

ACCA emphasized the distinction between an expert consultant and an expert witness and noted that requests for the two are resolved using different tests.

ACCA concluded that SPC McGinnis’s post-interrogation statement to his platoon sergeant constituted some evidence that his confession was false.    ACCA thus found that one of the military judge’s findings–that there was no evidence that he made a false admission–was clearly erroneous.  ACCA noted that the presence of such evidence distinguished this case from United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005).

ACCA also held that the military judge jumped the gun in determining that the expert wasn’t necessary because the testimony he might give wouldn’t be admissible.  ACCA sets out a number of other cases in which false confession experts have testified and noted that neither ACCA nor CAAF has held that such evidence is per se inadmissible.  A determination of admissibility, ACCA emphasized, should be made under Daubert on a case-by-case basis.

ACCA observed:

As the military judge conceded, “false confessions” do occur. Expert testimony could assist the members in understanding why they occur without running afoul of any longstanding prohibition against “human lie detector” testimony, that is, without stating that the confession at issue is false.

Relying on Article 46 (and Chief Judge Effron’s dissent in Lloyd), ACCA reasoned:

Here, appellant “made a specific request for expert assistance necessary for his defense on a central issue in a closely contested case.  The military judge erred in denying the defense the equal opportunity to obtain evidence and witnesses guaranteed by Article 46 of the Uniform Code of Military Justice.”  Lloyd, 69 M.J. at 101 (Effron, J., dissenting).

ACCA also set out reasons why the denial of the witness was harmful under the facts of this case.

21 Responses to “ACCA sets aside conviction due to denial of false confession expert”

  1. Leroy says:

    So who’s going to give McGinnis his life back for the time he spent in prison? The convening authority and the military judge should have to personally compensate him.

  2. soonergrunt says:

    I am not a Lawyer, Leroy, but that’s not the way it works. Absent evidence of knowing, criminal malfeasance that was so bad as to violate the standards of conduct for those officers, there’s no cause of action against them. They were wrong, not evil.
    Of course, I could be wrong, cause IANAL.

  3. John O'Connor says:

    They are immune. More to the point, nobody has yet said this guy is innocent.

  4. soonergrunt says:

    Please forgive the cluelessness here but hasn’t jeopardy attached? I mean the guy was tried in front of a jury or a members panel as ya’ll call it, right?
    So how does double jeapardy not apply? Is it because his conviction was tossed, and if so, would it be different if he’d been acquitted by the original members panel?

  5. Anonymous says:

    Article 44, UCMJ covers former Jeopardy. Subsection (b) of that article says:

    “(b) No proceeding in which an accused has been found guilty by court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.”

  6. soonergrunt says:

    Thanks, Anon1917.
    So this case isn’t considered complete, and therefore jeopardy isn’t at issue.
    What’s likely to happen now? The accused has already served the original confinement sentence and presumably been OTH discharged. Does he get back pay as an E-4 and a General discharge if the CA decides not to pursue at this point?

  7. Dwight Sullivan says:

    soonergrunt,

    The military doesn’t discharge servicemembers pending the completion of appellate review. (Well, sometimes the military does, but it’s not supposed to and it’s rare that it happens.)

    Where a servicemember has completed confinement before the completion of appellate review, he or she is almost always placed on “appellate leave” — a no-pay-due status where the servicemember is sent home to await the completion of appellate review. Servicemembers on appellate leave are still on active duty, though they aren’t being paid and don’t perform military duties. But they can still use military medical, shop at the commissary, use the base gym, etc., except in the rare case where they’ve been barred from base. Only once appellate review is complete does the servicemember receive a DD-214.

    The services seem to vary in terms of how they handle cases like this. When I was at Navy-Marine Corps Appellate Defense, Marines and Sailors who won their cases were almost never brought back for a retrial. Rather, they were administratively separated for end-of-enlistment, given an honorable discharge, and paid tons of backpay. The Air Force, on the other hand, seems to almost always bring the individual back into a regular duty status and retry the case. Then backpay is given only if the accused wins the second time. (That backpay is offset by the servicemember’s earnings in a civilian status.) I don’t know what the norm is in Army cases, though. Army Lurker, could you fill us in?

  8. Anonymous says:

    I assume he did not receive an OTH as he was pending a punitive discharge. He goes back to start effectively. The current GCMCA will have to decide whether to court-martial him again, drop the matter entirely, or theoretically could attempt to chapter him out.

  9. Anonymous says:

    At least for Leavenworth, having served some recent-ish time there, it’s a mixed bag. Some cases are re-tried, others are let go, and others they do a compromise with a chapter. It really just depends on the strength of the case and the magnitude of the alleged crime.

    You can often get very good deals on re-trial though that could result perhaps in some pay, depending upon the vagaries of Finance, but obviously in this case one would assume they’d go contested if there is another trial, what do you have to lose?

  10. Anonymous says:

    If the confession were false, could the accused be re-tried for a violation of Article 107 (and maybe false swearing if the confession were under oath) in addition to the original charge?

  11. Cheap Seats says:

    I suppose he could. But is that really very wise to do? If it is a false confession, then one would imagine that there is an element of coercion or undue pressure. Otherwise, why admit to something you didn’t do? The opinion talks of the long interrogation, the 3-hour denial, etc. So are we, as a government going to charge someone for succumbing to what may be undue influence by law officers? I am not saying the confession is false, I just think charging someone for falsely confessing after interrogation for hours seems unwise. Charging alternate theories, either the confession is good and he is guilty of one, or it is false and he is guilty of the other seems unwise as well.

  12. RY says:

    Interesting they cite the dissent in Lloyd (disclosure- I was Appellant’s counsel in Lloyd). This case seems destined for certification. Looking at the dissent in Bresnahan, there is some support at CAAF for lowering the requirements for an expert consultant. The facts here may be just enough more favorable than Lloyd to finally get that result. I certainly hope so, right now Defense counsel are in a bit of a catch-22 to know enough to request the expert but not enough that they can do it without an expert.

  13. soonergrunt says:

    Thank you, Sir for the both the information, and for the patience with the cluelessness.

  14. Dew_Process says:

    By pursuing an appeal seeking reversal of a conviction, an appellant is deemed to have “waived” the protection of double jeopardy if s/he obtains the relief sought, reversal.

    One wonders why, in a case of this significance, the ACCA designates this case as one not for publication, if not to frustrate future attempts at similar relief. Obviously, the opinion is “available” for those willing to look for it and will probably be on WestLaw in a few days. Although the cynic in me notes that the MJ now sits on ACCA.

    If there’s anyone from GAD or DAD who had access to the Record here, I would be curious to learn if the defense made a “Miranda” psychological coercion argument in tandem with the “false confession” issue. Equally as important is that had the CID recorded or videotaped the “interrogation,” this would probably be a total non-issue, one of the subtle but important points buried in Miranda itself.

    For those interested, there’s a fascinating book, entitled, “The Wrong Guys: Murder, False Confessions and the Norfolk Four,” by Tom Wells and nationally recognized false confession espert, Dr. Richard Leo, which tells the story of four U.S. Sailors, all of whom falsely confess to a murder that none of them committed.

    According to the Innocence Project, roughly 25% of the DNA exonerations involved false confessions.
    http://www.innocenceproject.org/understand/False-Confessions.php

    I don’t know if the defense tendered an affidavit from Dr. Ofshe [I’ve seen the one he uses] to demonstrate the recognized psychological principles involved, the criteria accepted within the field of psychology that provide the generally recognized indicia of a false confession, and the components of false inducements, threats, duress, lack of intelligence, etc., all of which are relevant in considering whether or not a confession is likely to be false – the ultimate question for the fact-finder, and one certainly relevant in a voluntariness challenge as well.

    CID [and for that matter, OSI, NCIS & CGIS] certainly have digital video cameras used for crime scenes, using them in the interrogation room would virtually eliminate the issues raised in this case.

  15. Anonymous says:

    But, Cheap Seats, why should that be so?

    I can imagine a vast gap between statements which are simply “false”, and those which are “involuntary”, or even truly “coerced.”

    Shouldn’t the prudent prosecutor — in every case which she has reason to suspect a confession might be challenged as “false” — also charge a False Official Statement or a False Swearing?

  16. John O'Connor says:

    I would think that’s a really bad strategy. If the confession is truly false, the accused in all likelihood will have some story about why he would confess to something he didn’t do, which probably involves some form of coercion by he interrogator.

    Also, charging 107 suggests a lack of confidence in your confession. If you sincerely doubt your confession, you probably ought to reconsider whether to use it.

  17. soonergrunt says:

    Thanks!

  18. Ed White says:

    There is no doubt that some people falsely confess. The question is whether there is any scientific way to know what factdors induce false confessions — that isn’t just common sense dressed up to look like expert opinion. If, at the end of the day, the expert analysis is just common sense (e.g. people are more likely to falsely confess when subjected to coercion), then they don’t really help the jury. On the other hand, unless one is omniscient and knows in advance which confessions are false and which are true, how can one scientifically derive the relevant factors?

  19. SPC McGinnis says:

    YES, I have served my time at Camp Lejeune Base brig, and now the JAG office is trying to re-try me, and waste more of the governments money. If anyone has any questions about my innocence, please feel free to ask me, or write me at patrick.mcginnis1@us.army.mil. I can give you every insight to what auctually happened in this government scoundral.. Please i urge you to ask any questions. Thank you very much….

  20. SPC McGinnis says:

    Sir, to answer your questions, No i have not been back paid, and the Judge whom over turned my case, said I would be back paid, and now the JAG at fort drum, said I will not get back paid till my new trial is over. When my case was over turned, a lady at Fort Knox, PCF said i would be called back to ft. knox, honorably discharged and then allowed to re-enlist, and when JAG got wind, th3ey put a stop to it, and called me back to fort drum, with NO pay, No orders, No uniforms, and were still making me pull 24 hour duty. I will confess that I am true to the army, and never hurt my children. I have lived with my son for the last 3 1/2 years and no other accidents have happened. I told the Corrupt CID aqgents that my son fell out of the High chair, and they told me there was no way possible, but my defence #1 ranked pediatric ORTHO, said there was absolutley no way possible this injury was consistent with the way my statement was written or any events. also, the prosecution called and XRAY tech, not a radioloist, a XRAY tech!! Please ask questions, and let Fort Drum commanders know what you think. I will send you a copy of my statement upon request and I will send you the whole trial transcript if you want. I served in IRAQ in 2005-2006 and only want to serve you gre3at americans, and am a victim of malisious prosecuton. Ask Maj General Oates, the prior convening authority whom tossed out the sentance and let me out of the brig early… I wonder why???

  21. SPC McGinnis says:

    Also, I wrote the statement, the CID agents “Revised it” and then told me the only way I could see my children and wife is to sign the statement. Also, the Agents did NOT video tape or record, which CID proceedure says it is strongly suggested to do one or the other, if not both, for this very reason….. Also in the trial, the CID agenst seemlgy lost their case notes, and the file of my case?? WHAT?? WTF are they doing up there??? And what convening authority would proceed with this crap???