I. INTRODUCTION
Attorney Shneur Nathan engaged me to review certain materials from the Adam Gray case and to provide a written opinion and expert testimony in response to Dr. Melissa Rusanno's Report (October 2, 2020) to assist the jury in its assessment of Mr. Gray's Miranda waiver and statement dated March 25, 1993. For my time as a consultant and possible expert witness at trial, I am being compensated at an hourly rate of $300 per hour.
II. PROFESSIONAL QUALIFICATIONS
I am Centennial Professor of Law Emeritus at the University of Minnesota Law School where I taught criminal law, criminal procedure, and juvenile justice, among other courses, from 1972 - 2016. I am an expert on juvenile justice administration focusing on adolescents' culpability, youths' competence to exercise procedural rights, and police interrogation of juveniles. 1 I received my Bachelor of Arts degree in psychology from the University of Pennsylvania. I received my Juris Doctor degree, magna cum laude, from the University of Minnesota Law School. I received my Ph.D. in Sociology from Harvard University. My research and writing focus on multiple aspects of juvenile justice administration. My scholarship has focused on adolescents' culpability and youth sentencing policy; adolescents' competence to exercise procedural rights including waivers of Miranda rights and the right to counsel; and racial and gender disparities in justice administration. 2 I have authored or edited eleven books including Cases and Materials on Juvenile Justice Administration (West, 5 th ed. 2018, with Perry Moriearty) and Juvenile Justice Administration in a Nutshell (West 4 th ed. 2018, with Perry Moriearty). Three of my books - Bad Kids: Race and the Transformation of the Juvenile Court (Oxford University Press 1999); Kids, Cops, and Confessions: Inside the Interrogation Room (NYU Press 2013); and Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice (NYU Press 2017) - have each received one or more outstanding book awards from national criminology associations which have cited them as “an extraordinary contribution to the study of crime and criminal justice” and “a most outstanding contribution to criminology.” Kids, Cops, and Confessions is the largest empirical study of police interrogation of juveniles based on analyses of tapes and transcripts of 307 felony interrogations of 16- and 17-year old juveniles. The National Science Foundation funded that research, featured its findings, and concluded that it “will aid police departments, juvenile and criminal defense attorneys, state legislatures and judicial law-reform commissions in developing better policies to regulate interrogation practices and provide social scientists with a template to repeat the study in other jurisdictions.” I have published about one hundred law review articles, peer-reviewed scientific journal articles, book chapters, and encyclopedia entries on juvenile justice administration including juveniles' competence to exercise Miranda rights and the right to counsel. I have received professional awards and honors for my research and contribution to juvenile justice administration. My scholarship has been cited by about one hundred twenty-five state and federal courts including the United State Supreme Court.
III. MATERIALS REVIEWED
In addition to the scholarly research, books, and articles cited in this Report, I have reviewed the following materials associated with Adam Gray's case:
I. Investigation and Arrest
Statement of Adam Gray to police (3/25/1993) General offense case report of Officers Donegan and Wolfe (3/25/1993) Supplemental report of Dets. Crescenzo, Pochordo, and Cegielski (3/28/1993) Supplemental report of Detective Jenkins (4/6/1993) Incident report of Fire Marshall Gruszka (3/25/93) Bomb and Arson Worksheet of Detective Jenkins (undated) Various investigation photographs Notes of ASA James Brown (5 pg)
II. Transfer Proceedings
Juvenile transfer hearing testimony of Janet Lupa (11/16/1993) Juvenile transfer hearing testimony of Nick Crescenzo (11/16/1993) Juvenile transfer hearing testimony of Julie Campoverde (11/16/1993) Juvenile transfer hearing testimony of Joseph Gruszka (1//16/1993) Juvenile transfer hearing testimony of Diane Bufano (11/16/1993) Psychological Assessment by Catherine Wilson Psychiatric Evaluation Dr. Anthony Marchlewski (4/28/93) Transfer order
III. Motion to Suppress (11/23/1994), memorandum, and supplements
Suppression hearing testimony of James Brown (6/1/1995) Suppression hearing testimony of Ernest Rokosik (6/1/1995) Suppression hearing testimony of Daniel McInerny Suppression hearing testimony of Nick Crescenzo (6/1/1995) Motion to Suppress Order
IV. Trial Court Testimony
Trial testimony of Brenda Thomas (4/23/1996) Trial testimony of Joseph Gruszka (4/24/1996) Trial testimony of Murray Shambee (4/24/1996) Trial testimony of Ernest Rokosik (4/24/1996) Trial testimony of Nick Crescenzo (4/24/1996) Trial testimony of James Brown (4/25/1996)
C. Post-Conviction Proceedings
Plaintiff's Second Amended Complaint 11 Pages of Notes of Adam Gray (Plaintiff 0198270-019837) Statement of Brenda Thomas (1/2/06) Affidavit of Brenda Thomas (1/7/2006) People v. Gray, (Case No. 94 CR 2793) People v. Gray, Court's Ruling After Third Stage Evidentiary Hearing People v. Gray, Petition for a Certificate of Innocence (summarizing affidavits of Murray Shambee, Jr.; John Lentini; Gerald Hurst; and Report of Fire Analyst Dennis Smith to Attorney Patnaik) Kassin Report (1/22/16) Deposition of Adam Gray Deposition of Percy Davis Deposition of Karrie Kelly Melissa B. Russano Report (October 2, 2020) Expert Report of Court Sandau Expert Report of Miriam Rafailovich
IV. OVERVIEW
In this report, I first describe the legal framework for adolescents' waiver of Miranda rights. I then review the developmental and social psychological research on juveniles' competence to understand and waive their Miranda rights and right to counsel. Third, I examine police interrogation methods and their use with juveniles. Finally, I analyze these issues and apply those factors to Adam Gray's ability to make a knowing, intelligent, and voluntary waiver of his Miranda rights. The United States and Illinois Supreme Courts have cautioned trial judges to be sensitive to the effects of youthfulness, immaturity, and inexperience on juveniles' ability to waive or to invoke Miranda rights and to make voluntary statements. 3 However, the Courts do not mandate any special procedural protections for young suspects and endorse the adult waiver standard-knowing, intelligent, and voluntary under the totality of the circumstances-to gauge the validity of juveniles' waiver of Miranda rights. 4
Totality factors include characteristics of the individual - e.g. age, education, IQ, and prior contacts with law
enforcement - and circumstances surrounding the interrogation - location, methods, and length of interrogation. 5
Ajuvenile's request for a parent or guardian may be a factor when evaluating the totality of the circumstances of a youth's waiver of rights. 6 However, research shows that when parents are present during the interrogation they rarely play a protective role or provide useful legal advice and actually tend to pressure their children to waive their rights and give a statement. Given the legal standard and the totality of the circumstances here, including evidence of Adam Gray's intelligence and competence, it is my professional opinion that he understood his Miranda rights and made a knowing, intelligent, and voluntary waiver. Once the state satisfied this threshold, it presented Mr. Gray's statement to the criminal court jury to assess the proper weight to give it. It is my professional opinion that Dr. Russano's conclusion that Adam Gray's confession lacked “indicators of reliability” is contradicted by the officers' finding a milk carton at the location he described and corroborated by Brenda Thomas' subsequent identification of him as the teen to whom she sold gasoline. What Dr. Russano characterizes as a major “red flag” of factual unreliability that should have precluded police reliance on the statement - that the milk container did not contain gasoline - is itself a matter of factual dispute.
V. THE LEGAL FRAMEWORK OF ADOLESCENTS' WAIVERS OF MIRANDA RIGHTS
A valid Miranda waiver must be both “voluntary” (i.e., the result of free choice) and “knowing and intelligent” (i.e., made with full awareness of the nature of the right being abandoned and the consequences of its abandonment). 7
The American Psychological Association posits that “the knowing and intelligent elements refer to a suspect's ability to comprehend his or her rights and the implications of surrendering them; voluntariness refers to the suspect's decision to waive his or her rights free from police coercion.” 8
As the Court has regularly reaffirmed, “The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions.” 9 Two significant Supreme Court cases examine Miranda in the context of juvenile interrogations. Fare v. Michael C. considered whether a 16-year-old with prior arrests, experience with police, and who had been committed to a youth camp made a valid Miranda waiver. 10 Although the juvenile in Michael C. repeatedly asked to talk with his probation officer before police interrogated him, the Court ruled that such a request did not invoke either the right to silence or counsel. Michael C. held that the totality of the circumstances test used to evaluate adults' Miranda waivers would govern juveniles' waivers and declined to provide children with more procedural protections than those afforded adults. The Court reasoned that Miranda provided an objective basis to evaluate waivers of rights and ruled that developmental differences between juveniles and adults did not require special procedures. 11 The Court in J.D.B. v. North Carolina examined how youthfulness might affect a suspect's feeling of restraint and concluded that age was an objective factor that could affect whether a person would feel free to leave. 12 Most states, including Illinois, use the same Miranda waiver framework for juveniles and adults. 13 They require only an understanding of the words conveying the rights themselves and not collateral consequences. About eighty percent of adults and ninety percent of juveniles waive their rights. 14 Explaining the standard waiver framework, the Illinois court in People v. Bernasco observed that Miranda requires “the ability to understand the very words used in the warnings. It need not mean the ability to understand far-reaching legal and strategic effects of waiving one's rights ... [T]o waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail.” 15 Bernasco further elaborated that to be aware of the consequences of waiver, the suspect must understand that the State intended to use his statement to obtain a conviction and that he could remain silent or request a lawyer. 16
Totality of the Circumstances
When trial judges evaluate waivers of Miranda rights, they consider characteristics of the individual - e.g., age, education, I.Q., emotional characteristics, and prior police contacts - and the situational context of the interrogation - i.e., the location, methods, time of day, and length and intensity of interrogation. 17 Leading cases provide extensive lists of factors for trial judges to consider and age alone is seldom a controlling factor in the totality of circumstances examined when gauging the validity of a Miranda waiver. 18 Similarly, whether or not a parent is present is simply one factor among the multitude of variables judges consider. 19 Parental Presence is Not Required at Juveniles' Questioning
Illinois statutes and cases do not require a parent to be present at their child's interrogation. 20 As People v. Brown, observed, “we recognize that a juvenile does not have aper se right in Illinois to consult with a parent before questioning or to have the parent present during questioning .... The presence or absence of the parent is a factor in evaluating the voluntariness of a statement or confession under the totality of the circumstances test.” 21 Similarly, the court in In re JJ. C. observed, “The presence or absence of a parent is a factor to consider when determining the voluntariness of a confession; however, there is no per se rule that a parent or guardian be present.” 22 Rather, trial courts consider the same totality of the circumstances factors for juveniles as for adults, among which parental presence is simply a factor. 23 Unlike Illinois, a few states require parental presence at their child's interrogation. 24 However, most analysts conclude that they provide limited protection of their children's rights. 25 Although courts envision that parents will play a protective and supportive role, they seldom provide children with useful legal advice, increase pressure to waive their rights, and often urge them to make a statement. 26 A survey of parents of high school students reported that the majority believed that their children should not withhold information from police to avoid self-incrimination. 27 A study of detained youths reported that most parents provided their children either no guidance (55.6%) or urged them to “tell the truth” (33.3%) and none advised them to remain silent. 28 Moreover, parents may be no more able to weigh the impact of waiver or to resist police pressures than their children are. 29 Parents - as adults - may have marginally greater understanding of Miranda than their children, but both share misconceptions about police practices. 30 Parents may be emotionally upset or angry at their child's arrest, believe that confessing will produce a better outcome, or may think their child should respect authority or assume responsibility. Parents socialize their children to tell the truth and endorse cooperation with police because “honesty is the best policy.” Some make a strategic calculus that cooperation will result in more lenient disposition. Others believe that children should learn the consequences of their actions. If a parent is present, police either enlist them as allies in the interrogation or neutralize their presence and render them as passive observers. 31 In the largest empirical study, in the vast majority of interrogations at which parents were present, they did not participate after police gave their child a Miranda warning, sometimes switched sides to become active allies of the police, and rarely played a protective role. 32 Given the multiplicity of variables, appellate courts defer to trial judges' decisions whether a juvenile made a valid waiver and reverse only if clearly erroneous or an abuse of discretion. 33 Courts have found that very young children, those with no prior law enforcement contact, others with limited intelligence or significant mental disorders, and without parental assistance made valid waivers. 34 Courts readily find valid Miranda waivers by youths fourteen years of age. 35 The court that heard Adam Gray's motion to suppress his waiver and statement upheld the validity of his waiver and admitted his confession. 36 One of the main issues raised by defense counsel is that the mother and older brother and sister of the defendant asked a number of times to be allowed to see the defendant while he was being interviewed ... The case law seems to say that in spite of 705 ILCS 405, that the defendant has no right to have a parent or a guardian present during the course of the interview. The case law definitely says that there is no, per se, violation of the defendant's rights simply because his parents or guardian were not allowed to be with him. 37 The several courts that reviewed the validity of his waiver of his Miranda rights thereafter found that he did so knowingly, intelligently, and voluntarily. 38
VI. DEVELOPMENTAL AND SOCIAL PSYCHOLOGICAL RESEARCH ON ADOLESCENTS' COMPETENCE TO EXERCISE MIRANDA RIGHTS
Concerns about adolescents' competence to exercise procedural rights and culpability arise in a variety of contexts. 39 Developmental psychologists have studied how children's thinking and behavior change as they mature, have focused on youths' judgment and suggestibility, and have examined their ability to make competent decisions or exercise legal rights. The psychological research is bolstered by neuroscience studies that report that adolescents, as a group, make decisions somewhat differently than adults and attribute some of those differences to developmental differences in several regions of the brain. 40 Developmental psychology research differentiates between cognitive ability which bears on youths' ability to understand words sufficiently to make a knowing and intelligent waiver, and maturity of judgment. Research in several domains - adolescents' decision-making and judgment, adjudicative competence, and criminal responsibility - distinguishes between cognitive ability and mature judgment. 41 Cognitive capacities involve understanding, the ability to comprehend information, and to use it logically. 42 By mid-adolescence, most youth exhibit cognitive abilities comparable with adults and can reason similarly as their elders. 43 While developmental psychologists have questioned whether juveniles can meet an adult waiver standard, the Court in Michael C. and most states, including Illinois, simply require that a youth must be able to understand the Miranda warning to make a knowing and intelligent waiver, the same standard used for adults. Miranda requires police to advise suspects of their rights, but some juveniles may not understand the words or concepts, which typically require an eighth-grade level of education. 44 Like most states, Illinois does not require any special juvenile advisories - so-called “dumbed down” warnings - parental presence, or procedural protocols other than the standard Miranda warning. 45 Miranda characterized custodial interrogation as inherently compelling because police dominate the setting, control the flow of information, and create psychological pressures to comply. Because of the compulsive aspects inherent in custodial interrogation, juveniles, as a class, may be at more of a disadvantage when questioned compared with adults. 46 The legal and social status of youths and adults differ and render children questioned by authority figures more suggestible. 47 Adolescents may be more likely to acquiesce to negative pressure or critical feedback and to accede to suggestions during questioning. 48 But IQs are an important factor. Adolescents with low IQs are more suggestible than are adults with limited intellect. 49
Adolescents' impulsivity and immaturity may cause them to confess to end an interrogation, rather than to consider the long- term consequences, but that does not mean that all adolescents are not capable of making knowing, intelligent, and voluntary
waivers or that all confessions are untruthful. 50 As discussed below, the research on the prevalence of false confessions suggest that only a small fraction of confessions are false and the vast majority are truthful. Research reports that older youths understand Miranda about as well as adults, but many younger juveniles do not understand the words or concepts. 51 Age-related improvements in cognitive ability and Miranda comprehension appear in several studies. 52 A review by the American Psychological Association reported that: Age was strongly related to Miranda understanding through middle adolescence and appeared to plateau around ages 14 to 15. Between the ages of 14 and 16, IQ emerged as a more powerful influence on Miranda comprehension and a better predictor of deficits in juveniles' Miranda understanding relative to that of adults. 53 Adolescents with low IQs perform more poorly than do adults with low IQs, and delinquent youths typically have lower IQs than do those in the general population. 54 A review of research reported “the understanding of adolescents ages 15 - 17 with near-average levels of verbal intelligences tends not to have been inferior to that of adults. But youths of that age with IQ scores below 85, and average youth below age 14, performed much poorer, often misunderstanding two or more of the warnings.” 55 Thus, many youths aged fourteen can understand and appreciate the rights conveyed in the Miranda warning and those of normal intelligence function on par with older adolescents and adults.
VII. Police Interrogation of Juveniles
At the time of the Miranda decision, police limited access to interrogation rooms and the Court used interrogation manuals and training programs as a proxy for the tactics police used. Miranda used the techniques recommended by Fred Inbau and John R. Reid, Criminal Interrogation and Confession - the leading training manual - as a surrogate for real-world practices. 56 Inbau and Reid remains the leading interrogation manual and the method of interrogation it details - the Reid Method - is the most widely used training program in the United States. This widely used method of interrogation has never been found unconstitutional or been otherwise prohibited by courts.
The Reid Method
The Reid Method influences the suspect by “reducing the perceived negative consequences of confessing while increasing the anxiety associated with deception.” 57 Because people are social beings, interrogation tactics seek to influence their perceptions of the situation and to emphasize short-term relief over long-term consequences. “[T]he goal of interrogation is to alter a suspect's decision making by increasing the anxiety associated with denial and reducing the anxiety associated with confession....” 58 Using the Reid Method, police isolate suspects and use tactics to overcome their reluctance to admit responsibility, to neutralize feelings of guilt, and to increase their desire to confess. 59 Although the Reid Method is the most widely taught method of police interrogation in the United States, Dr. Russano implies that it is somehow unlawful or improper for law enforcement to interview juvenile suspects using this method. 60 However, courts routinely receive statements obtained using the Reid Method, do not restrict its use with younger suspects, and do not condemn use of trickery and deception. 61 Social psychologists describe elements of the Reid Method as maximization and minimization techniques. Maximization tactics “convey the interrogator's rock-solid belief that the suspect is guilty and that all denials will fail. Such tactics include making an accusation, over-riding objections, and citing evidence real or manufactured, to shift the suspect's mental statement from confident to hopeless.” 62 Minimization techniques “provide the suspect with moral justification and face-saving excuses for having committed the crime in question. Using this approach, the interrogator offers sympathy and understanding; normalizes and minimizes the crime.” 63 The Reid Method remains the leading interrogation-training program in the United States and its protocols dominate contemporary practice. 64 Reid instructors have trained more than 300,000 investigators, and it is the most widely used method in North America. 65 Interrogators trained in the Reid Method rely on verbal and non-verbal cues - Behavioral Symptom Analysis - to distinguish between guilty and innocent suspects and to question them accordingly. 66 At the start of an interrogation, the officer confidently confronts a suspect with a direct and positive assertion of guilt. The officer offers neutralizing rationales or psychological themes to justify or excuse the crime. Reid training advises police to interrupt a suspect's denials and to rebuff explanations or assertions of innocence. It explains how to engage a suspect if she becomes passive or tunes out the questioner. It encourages police to show sympathy and urge the suspect to tell the truth. The questioner offers a face-saving, albeit incriminating, alternative explanation for why the person committed the crime. After obtaining an oral admission about some detail of the crime, the officer converts it into a fuller, written confession that the suspect signs. 67 The successive stages of the Reid Method are a “goal-directed, stress-driven exercise in persuasion and decision, one designed to produce a very specific set of psychological effects and reactions in order to move the suspect from denial to admission.” 68 The Reid Method's nine-step protocol uses three inter-related psychological processes: Custody and isolation, which increases stress and the incentive to extricate oneself from the situation; confrontation, in which the interrogator accuses the suspect of the crime, expresses certainty in that opinion, cites real or manufactured evidence, and blocks the suspect from denials; and minimization, in which the sympathetic interrogator morally justifies the crime, leading the suspect to infer he or she will be treated leniently and to see confession as the best possible means of”escape.” 69 Courts have determined that confessions obtained using the Reid Method are voluntary and reliable. 70
Police Questioning Juveniles
Experimental research by social psychologists aims to improve the diagnosticity of various interrogation tactics by increasing the rate of true confessions while reducing the rate of false confessions. 71 While psychologists have developed experiments to test the impact of different tactics, one of the challenges of social psychological research is external validity - whether laboratory findings can be generalized to real world settings - and whether any given interrogation tactic elicits a true or false confession in a specific case. Despite earlier skepticism that someone would confess falsely to a crime they did not commit, more recent social science research reports that the possibility of a false confession is real, although the frequency of this phenomenon is unknown. 72 We have no idea how often false confessions occur or how many untrue statements police elicit in relation to the vastly greater number of true confessions. Put another way, we do not know the frequency with which police elicit false confessions from suspects, but within the small universe of proven false confessions, juveniles are disproportionately overrepresented. 73 Developmental psychologists attribute juveniles' overrepresentation among the subset of false confessor cases to reduced cognitive ability, developmental immaturity, and increased susceptibility to manipulation. 74 They are more likely to comply with authority figures, tell police what they think they want to hear, and respond to negative feedback. 75 Impulsivity, social, and emotional factors play a larger role in adolescents' decision-making than that of adults, in part, due to neurobiological differences. 76 While psychologists and other disciplines properly focus on factors that may lead to false confessions, they
represent the proverbial needle in the haystack of the vastly larger universe of true confessions. 77 Although juveniles are over- represented within the small group of proven false confessions, the vast majority of youths and adults provide truthful and
reliable statements when questioned by police. 78 The Reid Method training protocols do not modify police interview tactics used with juveniles to account for their developmental differences as compared with adults. 79 It asserts that the same “principles discussed with respect to adult suspects are just as applicable for use with younger ones.” 80
Waivers of Miranda Rights
Studies conducted after Miranda reported that most criminal suspects waived their rights, agreed to talk with the police, and confessed. 81 Research in several jurisdictions and spanning decades consistently report very high waiver rates. The Yale Law Journal-New Haven Study reported, “Warnings had little impact on suspects' behavior.” 82 An observer in California reported that more than three-quarters (78%) of suspects waived Miranda and three-quarters of them made incriminating statements. 83 Observers at police-prosecutor charging conferences reported that 83.7% of adult suspects waived Miranda rights. 84 A survey of 631 police investigators estimated that 81% of adult suspects waived their rights. 85 Juveniles waive Miranda rights at somewhat higher rates than do adults. Grisso reported that 90.6% of juveniles waived Miranda and agreed to talk with police. 86 A retrospective study of delinquents in detention reported that 87% waived their right to silence. 87 Three decades of research on juveniles' Miranda waivers reports that the vast majority - over 90% - waive their rights and make statements that contained some level of admissions. 88 Consistently with previous research, a recent study of 307 police felony interrogations reported that the vast majority of juveniles (92.8%) waived Miranda rights. 89
Confessions and Admissions
Police question suspects to obtain information of evidentiary value - a confession, admission, or denial. Police elicit a confession when a juvenile admits that he committed the crime with supporting details or when his cumulative responses satisfy the elements of the offense. Police receive an admission when it links a youth to a crime or provides direct or circumstantial evidence of an element of the offense. Police receive denials when a juvenile disavows knowledge or gives an explanation that did not include any incriminating admissions. In my research on police interrogation, a majority (58.6%) of juveniles confessed fully and admitted all of the elements of the offense. 90 An additional one-third (29.8%) of juveniles provided statements of some evidentiary value, for example, admitting that they served as a look out or getaway driver during a robbery or participated with others during a burglary even if they did not personally steal property. Other research on police interrogation corroborate the high rate of successful questioning. Leo observed successful outcomes in
three-quarters (76%) of cases in which adult suspects waived Miranda. 91 The Yale-New Haven study reported that about two- thirds (64%) of interrogations produced incriminating evidence. 92 A survey of police investigators estimated that two-thirds
(68%) of suspects made incriminating statements. 93 A retrospective study of delinquents held in detention reported that more than half (55%) reported that they had confessed. 94 An analysis of 177 taped UK interrogations reported that police received confessions in 40% of cases and obtained admissions in another 25%. 95 Other research in the UK reports interview success rate of 77%, ranging from 64% to 97% among various police stations. 96 Research in Britain confirms that the majority of suspects confessed. 97 A study of juvenile interrogations in England reported that more than three-quarters (76.8%) confessed. 98 An analysis of 58 recorded juvenile interrogations reported that 37% of them fully confessed to the allegations and an additional 31% made incriminating admissions. 99 Although psychologists, criminologists, and the legal system have focused almost exclusively on false confessions, research on true confessions is scant. This seems to be because the “likelihood that any particular interrogation among the scores of interrogations conducted daily among 18,000 law enforcement agencies across the United States will result in a false confession seems quite low indeed.” 100 The few studies available report high rates of true confession among youth, but rely primarily on unverified self-report data. A self-report study in Iceland of 16- to 24-year-olds reported that 53% of youth whom police
had questioned said that they confessed truthfully to the police versus 7% who had confessed falsely. 101 A self-reported non- representative sample of 65 adult offenders with mental illness selected for those who gave only true or false confessions found
that false confessors did so more often to protect someone else or for short-term gain, whereas true confessors were motivated by feelings of guilt or belief that the police possess inculpating proof. 102 A self-report study of 193 juveniles aged 14 - 17 and confined for serious crimes found that the majority of youths confessed truthfully and did so to behave honestly whereas those who confessed falsely typically did so to protect someone else. 103 Thus, similar to adults, the vast majority of juveniles provide truthful and reliable statements when questioned by police. 104
VII. APPLYING THE LAW AND DEVELOPMENTAL PSYCHOLOGICAL RESEARCH TO ADAM GRAY' S MIRANDA WAIVER AND QUESTIONING
Electronic Recording
Within the past two decades, legal scholars, psychologists, law enforcement, and justice system personnel have reached consensus that recording interrogations increases confidence in the outcome of questioning and provides a measure of protection for all involved. 105 Nearly two dozen states now require police to record interrogations, albeit some under limited circumstances, such as for homicide or with very young suspects. 106 While it has become an increasingly common police practice today to record interrogations, that was not the practice in 1993. 107 At the time that Detectives and ASA James Brown questioned Adam Gray, only one state, Alaska, required an electronic record. 108 Significantly, Illinois did not require electronic recordings of the custodial interrogation of juveniles until 2004, more than a decade after Mr. Gray's questioning. 109 Thus, we do not have an audio, video, or other contemporaneous record of Adam Gray's interrogation with which to evaluate whether he made his Miranda waiver knowingly, intelligently, and voluntarily or how police questioned him subsequently. Because we have highly divergent retrospective accounts of what transpired when police questioned him, I rely on the documents reviewed in Section III to assess the validity of Adam Gray's Miranda waiver and whether the law enforcement interviewers used methods consistent with police training and widely accepted by courts. In this analysis, I am careful not to make credibility determinations, which is solely the role for the civil jury in this case. Recall that the Miranda process focuses primarily on factual understanding of the words of the warning. By understanding the words, a suspect also appreciates that waiver means relinquishing the rights conveyed. It does not require awareness of the legal significance of waiver, the collateral consequences of providing a statement, or knowledge of events occurring outside of the interrogation room. It simply requires comprehension of the words of the warning and an ability to exercise the rights therein. Developmental psychological research assessing several domains of legal and adjudicative competence consistently indicates that adolescents as a class are at a disadvantage in the interrogation room and at trial compared with adults. While the developmental psychological research distinguishes between adults and juveniles in the interrogation context, the legal standards generally treat them alike. I review the record, evaluations, interviews, and assessments conducted during Mr. Gray's initial judicial proceedings to assess whether Gray made a knowing, intelligent, and voluntary waiver of his Miranda rights and whether law enforcement adhered to the applicable legal standards when they questioned him.
Adam Gray's Miranda Warning and Waiver
On the morning of his questioning, Mr. Gray received multiple Miranda warnings. In each instance, he affirmatively indicated that he understood them and, on each occasion, agreed to talk with the Detectives and ASA James Brown. Records indicate that around 6:00 a.m., Detective Ernest Rokosik took Mr. Gray into custody at his brother's home and informed him of Miranda rights. Det. Rokosik deliberately did not question Mr. Gray, and transported him to VCU Area #1. 110 Although Mr. Gray has denied receiving Miranda warnings at the time he was initially taken into custody, he has acknowledged that he received Miranda warnings on other occasions before he provided the statement at issue. 111 Mr. Gray also testified at his deposition that he was not handcuffed during this initial encounter and that he voluntarily went to the police station. Around 6:45 a.m., police placed Mr. Gray in an unlocked conference room at Area # 1. Detective Nick Crescenzo advised Mr. Gray of Miranda rights which Gray indicated that he understood, but Crescenzo deliberately did not question him at that time. 112 At 7:30 a.m., Det. Crescenzo and State's Attorney James Brown gave Mr. Gray another Miranda warning which he again indicated that he understood. They deliberately did not question him without a Youth Officer present. 113 Around 8:30 a.m., Det. Crescenzo, Youth Officer Percy Davis, and Brown gave Mr. Gray yet another set of Miranda warnings, which he indicated he understood, he denied involvement, and questioning ceased. 114 The interview took approximately fifteen minutes. 115 Around 9:15 a.m., police conducted a line-up and Karrie Kelly identified Mr. Gray. 116 Thereafter, about 9:30 a.m., with Crescenzo and Davis present, Brown readvised Mr. Gray of his Miranda rights, confronted him with the witness' identification, and he denied involvement. 117 The interview took approximately fifteen minutes. 118 At 11:00 a.m., Crescenzo, Davis, Michael Pochordo, and Brown again gave Mr. Gray his Miranda warning, which he indicated that he understood. He waived his rights and confessed. 119 The interview took approximately fifteen minutes. 120 Around 12:05 p.m., Brown advised Mr. Gray of his Miranda rights which he waived, took his statement by asking a series of questions to which he responded, and which Court Reporter Janet Lupa recorded. 121 Around 1:30 p.m., Gray corrected selected portions and signed the statement that Janet Lupa transcribed. Based on the foregoing chronology, Gray received Miranda warnings multiple times before he waived and confessed initially during the 11 o'clock questioning. On each occasion, he indicated that he understood his rights; at no time did he invoke his right to counsel or to remain silent. Lengthy and sustained questioning might render a Miranda waiver involuntary. 122 Although Gray was in custody at the VCU # 1 for about four hours before he initially confessed, Det. Crescenzo and ASA Brown apparently questioned him twice for about fifteen minutes each time before his waiver and admissions at 11 o'clock. 123 These relatively short interviews differ significantly from the lengthy interrogations associated with false confessions. 124 In his deposition, Adam Gray acknowledged that he understood the Miranda warning and waived his rights, saying that he felt that he had nothing to hide. 125
Dr. Russano Contends that Adam Gray's Confession Contained Risk Factors for False Confessions Dr. Russano contends that Mr. Gray's interrogation contained risk factors for false confessions. She contends that his age, 126 custodial isolation and interrogation, 127 use of the Reid Method, 128 and length of interrogation 129 likely rendered his statement false. However, as noted previously, the law of interrogation treats juveniles just like adults. While juveniles may be disproportionately over-represented in the small group of proven false confessors, it remains the case that the vast majority of young offenders can and do give truthful statements. Similarly, custodial interrogation and the Reid Technique have been uniformly approved by courts and used for decades with adults and juveniles. Moreover, Dr. Russano contends that “Adam experienced -8 hours of custody, isolation, and interrogation before signing the typed statement, which would have placed him well within the danger zone of providing a false confession based on time alone.” 130 While Mr. Gray was in custody, he gave his initial confession around 11:00 a.m. after being questioned twice previously for about 15 - 20 minutes each. Dr. Russano's conflation of Mr. Gray's time in custody with the length of his questioning is a recurring issue in analyses of interrogation. As Drizin and Leo's study of false confessions observed, social scientists and “lawyers will sometimes report the length of time in custody as the length of actual interrogation. As a result, the length of interrogation may be disputed between the parties.” 131 Time in custody is a misleading measure of length of interrogation, because police typically will conduct preliminary investigations, interview other witnesses, and familiarize themselves with the circumstances of the offense prior to questioning a suspect. 132 Mr. Gray's initial confession after being questioned twice for less than half an hour each time falls well within the normal range of routine questioning. 133 Dr. Russano further contends that his statement was not reliable based on her assessment of whether it was (1) consistent with the facts of the case, (2) whether the post-admission narrative contained non-public facts about the crime that police had not leaked to the interviewee, and (3) whether the post-admission narrative contained details not known to police at the time, but which independent evidence later corroborated. 134 In his March 25, 1993 statement, Mr. Gray said that he walked from his friend Mel's house to the Clark gas station where he filled up a milk container with $2 of gasoline. He then walked to the home of Kasey Paris-a girl with whom he had an ongoing dispute-and poured gasoline on the back stairs before lighting it with a cigarette lighter and then discarding the empty milk container in a nearby alley. 135 Mr. Gray later described his statement as something that was “very ad-libbed” where he would “fill in the blank” in response to questions like “Well what did you do then?” and “well what did you do then?” 136 However, Mr. Gray also agreed that many of the details of the March 1993 statement came from him. 137 After Mr. Gray provided the 1993 statement, the police located a milk container in an alley at a place he described. To the extent that Dr. Russano emphasizes whether post-admission objective facts are consistent with the statement, there are several indicators of the reliability of Mr. Gray's confession. Mr. Gray provided at least the non-public fact that he used a milk container to transport the gasoline to the crime scene, the gas station attendant corroborated this fact after Mr. Gray provided his 1993 statement to the police, and police found the milk container at the location Mr. Gray indicated. Similarly, Dr. Russano's criticizes the confession based on what she describes as a “major red flag” - her belief that it contained a false fact when it described gasoline as the accelerant. 138 However, Dr. Russano acknowledges that she is not an expert in chemistry and instead relies on Mr. Gray's other experts' reports which apparently conclude that there was heavy petroleum distillate (HPD) and not gasoline in the milk container. However, other experts in this case have concluded that gasoline evaporates very quickly and the absence of detectible gasoline in the milk container when tested several days later does not support the conclusion that that it was not present earlier. 139 Thus, Dr. Russano's characterization of the confession as having a “major red flag” due to a false fact is itself a matter of dispute. To be sure, the parties disagree about many of the facts surrounding the confession. For example, Mr. Gray claims he asked to speak with his mother during this interview session. 140 The defendants deny this. 141 Regardless, Illinois law did not require a parent's presence at their child's questioning nor does the research suggest they would have been of assistance. Similarly, Mr. Gray has alleged that he confessed after an officer “started to tell me about how I could get the electric chair if the other person dies and that if I told him I did it he would insure (sic) that I get sent to some pace where ‘fire bugs like me learn to live.’ Then bursting into fresh tears, I said ‘I did it.”' 142 Mr. Gray has further alleged that he was promised by a police officer that he could go to school if he confessed. The law enforcement officers deny these allegations. 143 Although Dr. Russano asserts that Adam Gray's statement lacked indicators of reliability, he initially provided details unknown to the police - plastic milk container and its location - and they subsequently corroborated his identification by an independent witness. It will be for the jury to decide between these differing factual accounts.
Adam Gray's Competence to Make a Knowing, Intelligent, and Voluntary Waiver
Recall that many younger juveniles do not fully comprehend the words of the Miranda warning and youths with lower IQs
perform even more poorly than their normal-intelligence peers or adults with low IQs. Some warnings require about an eight- grade reading level to be understandable. Adam Gray was a fourteen years old eighth-grader at the time of his questioning,
and the documents reviewed indicate that he possessed above average intelligence and the cognitive ability to understand the warning and make a knowing, intelligent, and voluntary waiver. Dianne Bufano, Cook County Probation Officer, interviewed teachers at the Juvenile Detention Center about Mr. Gray's academic performance and testified at his transfer hearing. She reported that “Adam was doing very well academically. Adam was initially completing his 8 th grade. He did graduate from 8 th grade and then he was taking high school courses.” 144 When asked whether Mr. Gray fit the mold of the average student in detention, she agreed that he did not fit the regular mold and that “he was a very good student.” 145 Julie Campoverde, a teacher in the Detention Center School, agreed that “he was on a higher educational level than the average student.” 146 Catherine E. Wilson, a Clinical Psychologist, on May 18, 1993, submitted a Psychological Assessment of Mr. Gray that was reviewed in conjunction with his transfer hearing. She reported that Mr. Gray's education history was unremarkable, that he had never been assessed for special education needs and had never failed a grade. She administered the WISC-III intelligence test and reported that These scores result in a verbal I.Q. of 102, a Performance I.Q. of 125, and a Full Scale I.Q. Score of 113. The verbal score is in the Average range, the Performance Score is in the Superior range, and the Full Scale score is in the High Average Range ..... Adam is a youth who has tremendous raw intelligence which has never been adequately directed or developed. He received the
highest possible score on a subtest which measures the youth's capacity for abstract problem solving when working on visual- motor tasks. This is the subtest which is considered to be a good reflection of general intelligence. Adam's score was in the
99.9 th percentiles, that is the very superior range. 147 She reported that There were a number of other areas of relative intellectual strength for Adam. He is a mentally alert young man who is not easily distracted when working on intellectual tasks. He has a sound memory, both long and short term. He also has a relative strength in the area of acquired information. 148 She further reported that he was reading at the 8 th grade level and that his reading and spelling scores were average. 149 In his deposition, Adam Gray described himself as being a capable but lazy student, one who participated in an extra-curricular academic league, and who's high Iowa test score qualified him for admission to the honors program at a magnet high school. 150 While Miranda waivers by younger juveniles with low IQs may be problematic, Mr. Gray's intelligence clearly distinguishes him from most youths. Dr. Anthony J. Marchlewski conducted a psychiatric evaluation of Mr. Gray. When he asked Mr. Gray whether police had read his Miranda rights, he responded that they were read to him seven to eight times and then [he] proceeded to recite “you have the right to remain silent, whatever you say can and will be used again you, you have the right to an attorney, if you can't afford ...” When asked specifically if he had been informed of this prior to his being questioned or afterward, he stated that he was informed of this before he was questioned. 151 Mr. Gray had two prior station adjustments and two other referrals to juvenile court for felony offenses for some of which he likely would have received Miranda warnings. 152 In his deposition, Mr. Gray acknowledged that he probably received Miranda warnings during those earlier encounters with law enforcement. 153 Finally, in his deposition, Mr. Gray acknowledged receiving and understanding his Miranda warning and stated that he voluntarily waived his rights because “I didn't feel like I had anything to hide.” 154