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Anatomy Of A Bad Confession, Part 2

On Wednesday, WBUR detailed the 2008 interrogation of a teenager by Worcester police that led to her arrest on the charge of murdering her baby. The interrogation raises troubling questions about the coercive power of detectives who are driven to extract confessions. It suggests how people might admit to crimes they may have not committed. This is Part 2. (See all reports.)

Nga Truong, with lawyers Jeff Richards, left, and Ed Ryan, on Monday. Ryan has called Truong's 2008 interrogation by Worcester police "psychological torture." (Lisa Tobin/WBUR)

Nga Truong, with lawyers Jeff Richards, left, and Ed Ryan, on Monday. Ryan has called Truong's 2008 interrogation by Worcester police "psychological torture." (Lisa Tobin/WBUR)

WORCESTER, Mass. — “This entire case went off the rails from the moment these two officers decided that Nga Truong was guilty,” says defense attorney Ed Ryan, who became the attorney for the Vietnamese-American 16-year-old after her arrest by Worcester Police in December 2008.

“This was a rush to judgment. Clean it up fast, let’s get the confession, let’s just nail it down.”

There’s a longstanding basis for the drive to get confessions. Nothing carries more weight with juries. According to years of behavioral research on jurors, not even DNA evidence has the power of these three words: “I did it.” A confession is deemed “the queen of all evidence.”

Some criminologists see modern American detective work as more concerned with getting confessions than with collecting facts. The videotape WBUR obtained after a series of motions and appeals shows how far Worcester Police detectives went in quest of that queen.

‘A Genuine Opportunity For A Meaningful Consultation’

It takes us inside an 8-by-10 room to the aggressive questioning by Detective Sgt. Kevin Pageau.

“And that’s why you smothered Khyle, didn’t you?” he asks.

“I did not,” Truong snaps.

“That’s why you smothered him, didn’t you?” Pageau repeats.

An unusually high conviction rate attaches to confessions obtained by police interrogation. To get his client’s confession thrown out, Ryan filed what’s called a motion to suppress evidence. And in November 2010, almost two years after Truong had been locked up to await trial, Judge Janet Kenton-Walker opened a hearing in Worcester Superior Court. Almost as soon as the judge turned on that videotape, problems started filling the screen.

Final Video Excerpt: 'I Smothered Khyle'

“You have the right to remain silent. Do you understand this right?”

Two generations of TV viewers watching cop shows have memorized Miranda warnings.

“You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. Do you understand this right?” continues Pageau’s partner, Detective John Doherty.

But in the first three minutes of this video, Doherty and Pageau get it wrong. Somehow they don’t even know how old the suspect is.

“You’re going to be 18 in a couple days?” Doherty asks.

“I’m going to turn 17 in a couple days,” Truong replies.

After a telling pause, Pageau responds with surprise. “Oh, you’re not 17 yet?”

Here’s problem No. 1, because if she’s not 17, Truong is a juvenile. And as a juvenile, she must have “a meaningful or genuine opportunity to consult with the parent, interested adult, or attorney” about whether she should talk to police and do it without a lawyer present. There’s no evidence she ever got that chance.

“But you have spoken with your mother,” Pageau points out. “And you spoke with me, with your mother present yesterday, right? And your mother knows you’re here today.”

The detective is trying to make the problem go away. Instead of stopping to get the Miranda warnings right, Pageau keeps on going. He then tries to get Truong to say she had that opportunity to consult with her mother beforehand.

“It was OK with her and it was OK with you, right?” Pageau will continue to remind her throughout the interrogation.

Watching a copy of this interrogation, retired Superior Court Judge Robert Barton, who presided over 150 murder trials, observes, “It’s obvious because the sergeant is trying to put it together now.”

The detective is trying to fix what they have done wrong, Barton says, but what’s done can’t be undone.

“That was too late. The barn door was open.”

Retired State Police Detective William Powers, who now trains detectives, saw the same videotape and was equally clear. He refers to the rulings of the state’s highest court.

“By not conforming exactly with the rules as the court laid them out, that unfortunately sort of doomed this [interrogation and the eventual admission] from the very beginning,” Powers says.

After Judge Kenton-Walker listened to Pageau’s testimony in late 2010, she concluded that the detective was “not credible.” She ruled that the detectives never gave Truong “a genuine opportunity for a meaningful consultation.”

Had the police waited just two days, Truong would have turned 17 and the police would not have had to give her Miranda rights for a juvenile. She wouldn’t have required “a genuine opportunity for a meaningful consultation” with her mother or an attorney. But getting that confession seems to have been the detectives’ top priority.

WBUR's David Boeri Reflects On The Videos

A Series Of ‘Knowingly False Statements’

“Are we going to keep doing this or are you going to tell me what happened?” Pageau later presses.

“I did tell you what happened,” Truong replies.

“Cut the [expletive].”

“I’m not lying,” Truong pleads.

Here’s problem No. 2 for the police and the prosecution: Watching the tape, the judge found that Truong was “a frightened, meek, emotionally compromised teenager who never understood the implications of her statements.”

When the judge ruled that Truong’s confession was inadmissible (PDF), it practically wiped out the ability of Worcester County District Attorney Joseph Early Jr. to prosecute Truong.

“Mistakes were made,” says Early, who takes great pains and even the passive voice to avoid naming the mistakes or the mistake-makers. He will say nothing critical of the Worcester Police Department, even though if there were a crime in this case, it would now go unpunished because of the actions of the two detectives. He takes time to praise Worcester Police.

“They do very good work,” Early says. “And we have a great working relationship with them.”

Yet the videotaped interrogation that the district attorney viewed showed far more disturbing problems than the simple failure to give Miranda warnings. And Kenton-Walker took the further step of throwing out Truong’s confession on a second set of grounds that would make it harder for the DA to get her ruling reversed by a higher court.

To extract her confession, Pageau and his partner told Truong a series of what the judge called “knowingly false statements,” like this one as Truong is pleading, “Please believe me:”

“I don’t believe you,” Pageau replies emphatically. “I believe the doctors who told me that they can tell by inspecting your son’s body that he was smothered.”

The doctors had said no such thing.

The judge described a pattern of deception, trickery and implied promises that led to the confession. First came the lie. Second came the promise: “We can get you help. First thing you have to do is admit you have a problem.”

Third came the suggestion of rewards: if Truong confesses, the cops say they’ll keep the matter in juvenile court. “It goes like this: You tell us what happened, we walk right out here, to special crimes juvenile … where punishment is minimal, if any,” Pageau tells her.

And here comes the threat if Truong doesn’t tell them what happened: “If this drags out we’ll push to try you as an adult.”

And if she does go to adult court, all bets are off, he warns, because he’ll bring in the medical examiner and the evidence — that really doesn’t exist — that she smothered her child and tell the jury how uncooperative she’s been.

“I don’t really care,” Pageau says. “I told your mother I don’t care about her, and I don’t care about you. I care about that baby.”

“With notable naiveté Nga believed what the officers told her,” the judge concluded, “since, after admitting she had smothered Khyle, all she wanted to know was whether she and her brothers would now be able to go to a foster home.”

Observes retired Judge Barton upon reading Kenton-Walker’s ruling, “One thing I did tell my wife while the child was being interrogated: ‘Thank God we have courts and judges.’ Because if you left it up to government with the police to decide if you’re guilty or not, that kid would have been strung up in the backyard that night. Because in their minds she’s guilty: give her the maximum punishment, next case.”

The judge’s ruling left District Attorney Early and his case without that queen of evidence: the confession. But he didn’t appeal her ruling.

“We made a decision at that point that an appeal wasn’t a viable option,” he says.

And going ahead with the murder case wasn’t a viable option either. So at the end of August, Early sent his first assistant to court to drop the case. The legal process is called “nolle pros” for short.

“There was no longer a confession in the case nor any physical evidence, so at that point the determination was made to nolle pros the case,” he says.

As he just said, there was no physical evidence.

Which raises the question of why the two detectives presumed Truong guilty in the first place. Remember the autopsy? It states that the cause of death is “undetermined.” And the death certificate reads: “asphyxial death consistent with but not exclusively diagnostic of suffocation.” Contributing factors, it says, are streptococcal pharyngitis [strep throat] and tracheobronchitis, which belonged to a history of respiratory problems involving asthma that required a nebulizer. And the boy’s body temperature was 101 degrees Fahrenheit an hour after he was dead. Whatever else may have happened to Khyle Truong, he was a sick boy.

And this, claims defense attorney Ryan, was a case of a false confession.

“They entered into this interrogation predisposed to extracting from this young woman the admission that she had killed her child,” he says, “and that’s exactly what they went about doing in an aggressive and despicable manner.”

Truong Speaks Again

Truong had been charged and kept in jail for two years and eight months on little more than that confession. And the confession was the product of coercion, according to the judge, who noted that the interrogation was “potentially coercive to the point of making an innocent person confess to a crime.”

“What was it like to get out?” I ask the smiling, attractive young woman sitting across the table from me. Truong is three years older than the girl I’ve seen in photographs standing before the court at her arraignment.

“What was it like? I can’t even explain it,” she says. “Like I got into school, I got a job. It’s been great.”

She has been out of jail for three months. She says she still feels like she’s 17, but she’s lost three years. Last week marked her 20th birthday and the third anniversary of her son Khyle’s death.

I get to the question I have to ask: “You told them you smothered Khyle. Why would you confess to committing something you didn’t do?”

“It was a pretty long two hours and all I could hear throughout those two hours was that they were going to give me help if I confessed,” she replies, and then stops. “I’m sorry,” she apologizes, then bows her head and starts crying.

She’s free all right, but she’s still too close to the interrogation room at Worcester Police headquarters.

I ask her what she would say if she ever had the chance to say something to the Worcester detectives who extracted her confession.

“Well when I first got in jail, I was really mad,” she begins, before correcting herself, “well, I wasn’t mad, I was upset that they would ever even thought [that I did that] or bringing my little brother into it.” (The little brother whose death was investigated and ruled to be sudden infant death syndrome, but which the detectives claimed was her first murder victim.)

“I remember them telling me they got the autopsy and it didn’t make no sense to me whatsoever,” Truong says. It was the autopsy they were lying about.

“They were just yelling at me,” she says. “I was so tired, I really didn’t pay attention … I never thought of the consequences. I just said it because they wanted me to.”

I ask: “When did you realize the significance or the consequences of what you had just told the police?”

“When they snapped those handcuffs on me,” she says.

Lessons Learned?

So were there any lessons learned here? “Like I said, Worcester does a very good job,” DA Early says. “This case here I believe is an aberration.”

But in January, the district attorney says, there will be a training session for State and Worcester Police detectives on interrogating criminal suspects. And he’s established a protocol of sending a prosecutor to work hand-in-hand with Worcester detectives on homicide cases.

“The purpose is to always get better,” Early says. “If you ignore your mistakes, you’re destined to repeat them. So you always want to learn from your mistakes.”

Truong, who’s struggling to build a future, says she wants to become a psychologist. She speaks with hope and faith in the future. She’s not angry anymore.

“Over the years I learned they [the cops] were just doing their job,” she says. “But really they were just forcing it on me.”

And what has the Worcester Police Department learned? What steps has it taken to hold its detectives accountable or make sure what happened to Truong doesn’t happen again?

The Worcester Police Department did not respond to our repeated requests for comment.

We called the chief. He referred us to the media liaison. We also asked to speak with Edward McGinn, who was the detective captain at the time of Truong’s arrest and assured reporters that his detectives had made sure all Truong’s Miranda rights were preserved, a claim rejected by the judge. McGinn was promoted to deputy chief. He too referred us to the media liaison.

We also reached out to the two detectives in the interrogation. Sgt. Pageau responded that department policy prevented him from talking. And he referred us the liaison.

The liaison, Sgt. Kerry Hazelhurst, never responded to our request or to the list of questions we emailed him.

There is no indication that the department ever took disciplinary action against the detectives or that it has taken any action to provide corrective training to its department of detectives.

Update: Wednesday night, the Worcester Police Department released the following statement:

On February 25, 2011, Judge Kenton-Walker issued an order suppressing the homicide confession of Ms. Nga Truong. Ms. Nga Truong was interviewed 2 days before her seventeenth birthday by Worcester Police Detectives in connection with the suspicious death of her son.

Judge Kenton-Walker noted because Ms. Nga Truong was not seventeen at the time of the interview that she did not have an opportunity for a meaningful consultation with an interested adult about whether to waive her rights as required by law. The judge also concluded that the statements were rendered involuntary because the totality of the circumstances suggests a situation potentially coercive to the point of making an innocent person confess to a crime. As a result, the judge ruled that the Commonwealth did not sustain its burden of proving the confession was voluntary.

The Worcester Police Department in collaboration with the District Attorney’s Office has agreed to address the issues raised by the judge in this case. The Worcester Police Department and the District Attorney’s Office have ongoing dialogue regarding criminal investigations. Since January 2011, by mutual agreement, the District Attorney is directly involved in all homicides and serious crimes investigated by the Worcester Police Department.

The detectives involved in this case continue to perform their duties as investigators with the full support and confidence of the police administration.

There will be no new additional information released at this time.

Updated 2/16/12:

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