Emily Horowitz

Director, National Center for Reason and Justice (www.ncrj.org)

On Thursday, March 29, 2012, New York’s highest court made a landmark ruling, saying that expert testimony about false confessions should be allowed at trial. Shamefully, the 5-2 decision upheld the conviction of Khemwatie Bedessie, the defendant represented by Ron Kuby, who was not allowed to have an expert witness on false confessions at her 2007 trial, saying that in her particular case a false confession expert was not needed. The Bedessie case, fiscally sponsored for 5 years by the National Organization for Reason and Justice, is reminiscent of the classic daycare panic case of the 1980s/1990s, where daycare centers were centers epicenters of false allegations of sexual abuses – and some of those notorious cases included false confessions.

In the New York Times article about the ruling, it says that Bedessie confessed “twice” to sexually abusing a young boy at the daycare center where she worked (http://www.nytimes.com/2012/03/30/nyregion/new-yorks-highest-court-acknowledges-issue-of-false-confessions.html). This is misleading. After being questioned by detectives after 3 hours in custody, the Detective says she confessed, and then he turned on the videotape to the record the confession. The problem is that the interrogation was not recorded, so we have only the Detective’s word that she confessed prior to the videotape – and, more disturbingly, we can’t see what took place during the conversations with the Detective before this.

This case highlights why we need legislation that would prevent confessions from being the sole reason for a conviction – and that would require the police to videotape all parts of an interrogation, including the lead-up to a confession that could have been obtained by coercion.

Bedessie doesn’t fit the profile of an abuser, has no criminal record, and there was no physical evidence of abuse. In fact, the parent of the child testified that she “frequently” asked him “at random” if he was being sexually abused – suggestive techniques that are known produce false allegations. If Bedessie, a extraordinarily naïve immigrant from Guyana with only a 5^th grade education who lived with her “mommy” and mostly performed low-level cleaning-related tasks at the daycare center, had not confessed, this case would not have been tried because there was no other evidence. Like ¼ of those exonerated by DNA evidence, she confessed to a terrible crime on videotape. Unfortunately, there is no DNA in this case, because there is no physical evidence that a crime took place. In fact, most cases that don’t have DNA, and, in the US (unlike most European democracies), a confession can be the entire basis of a criminal conviction.

This ruling proves that the State Legislature in Albany needs to pass legislation now that requires the videotaping of interrogations. As noted in the strong dissent, the expert on false confessions would have specifically addressed how and why someone like Bedessie was particularly vulnerable to coercive questioning and why she confessed to something unimaginable. It is admirable that Chief Judge Jonathan Lippman joined Judge Theodore Jones in his dissent, but it is disgraceful that they were the only 2 of 7 judges to do so. This landmark decision should be applauded because this ruling will now make it much easier to allow false confession experts at trial, but it is a disgrace that the majority were blind to the stark reality that Bedessie deserves a new trial.

For now, Bedessie sits in prison, while her lawyer Ron Kuby, working on a pro bono basis because her impoverished family can no longer pay him, explores the option of pursuing this in Federal court.