Richard Ofshe is an emeritus professor in Berkeley’s sociology department, but he has little use for the classroom or the lab. His passion lies in jail cells, witness boxes and, if all goes well, a television news magazine. Ofshe is the country’s leading expert in false confessions by criminal suspects, an academic area increasingly familiar to the general public thanks to a handful of high-profile exonerations, including those on Illinois’s death row and in the Central Park jogger case.
He has worked on many of the biggest cases as an expert witness and frequently lectures to conventions of judges and defense attorneys on how to spot a false confession. He contends that while coerced confessions by police are rare in the United States, “there is no doubt they occur regularly.”
He is a controversial figure, lauded by the defense bar, loathed in law enforcement circles and scoffed at by the academic elite.
“My colleagues think what I do is bullshit,” he says unapologetically. “Too real world.”
Prosecutors and police detectives believe he exaggerates the frequency of false confessions. They also feel the police techniques he blames for coerced confessions are actually smart strategies good investigators use every day to get guilty people to admit to their crimes. Law enforcement associations have compiled a dossier of attack questions to help prosecutors undermine his testimony as an expert witness.
Ofshe’s lifestyle and personality also put him at odds with his law and order opponents. He works for arguably the most liberal university in the country and lives with his wife in a large home filled with modern art and antiques on a hill high above Berkeley. The couple also maintains residences in the Caribbean and Paris. When he is in California, Ofshe spends most of his days in his plush home office with Lulu, a coton de tulear from a special breeder in France, sleeping in a white ball by his loafers.
By Ofshe’s own description, he is egotistical and abrasive. On the witness stand, he can come off as superior and spoiling for a fight. Indeed, he loves confrontation and always relishes the opportunity to grill police about their interrogation methods.
“It’s a great moment when that happens,” he says. “They are full of shit, and they know they are full of shit.”
Ofshe was born and raised in Queens, and he says the anger he brings to his work is part of a “New York Jew attitude.”
“It’s an ethnic thing, a reaction to the needless injustice,” he says.
Ofshe is an admitted media hound. He has a small tape library of his television appearances, and his office is decorated with expensively framed articles about him. He points out his favorite two to visitors, one from the New Yorker and the other from the New York Times Magazine.
“For a boy from Fresh Meadows, it doesn’t get any better than this,” he says, before cuing up a tape of an appearance on Dateline.
Ofshe’s willingness to cooperate with the press—and in some cases, to actually pitch stories to reporters—has made him well-known among defense lawyers.
“If a lawyer has a potential false confession and he can’t find me after 20 minutes of looking, it’s a prima facie case of incompetence,” he says, only half joking.
Ofshe says that on average, he gets a phone call every day from a lawyer with a client who is claiming he or she falsely confessed. He turns down more than half the cases, he says, because there is no evidence of coercion, and he suspects the client is simply lying.
In the spring of 2002, however, the call from West Virginia sparked his interest. The only real evidence in the murder case is Kenzi Snider’s confession, Weis told him. There are no forensics and no eyewitnesses, and in fact there was ample evidence pointing to a male culprit. There also may have been some influence by a powerful U.S. senator, the public defender told him.
Intrigued, Ofshe told him to run down the case.
Weis gave him a barebones account of the murder. He then told him about the motel manager’s wife with her account of a Caucasian man with bloody pants fleeing Room 103. This woman actually picked another guy out of a lineup, he said, referring to Pak’s identification of Michael Greco in Daegu.
He told Ofshe about Miss Yi, who had seen a man loitering outside the open door of Room 103 in the middle of the night. He told him about the exchange student in Room 102, Kati Peltomaa, who had heard an angry American male voice followed by the sounds of an assault.
What’s more, he told Ofshe, is that the crime scene was very bloody, but there was no blood on Kenzi’s clothes. On the morning Jamie’s body was discovered, Kenzi was wearing the outfit everyone had seen her in the previous night. None of the other exchange students, nor the police officers, detectives or interpreters, noticed any blood on her clothes or her boots. Forensic analysis on the clothes a year later couldn’t even find the smallest stain, he told Ofshe.
He also mentioned the blood smudge on the door leading out of the motel and the semen tests results, which were shaky because of the antiquated testing methods, but in the official record nonetheless.
Weis also told him that some of the contradictions that Mansfield found in Kenzi’s statements seemed explainable. Maybe, for example, Vincent and Martinez were too drunk to remember seeing her. Maybe Jamie’s panties were inside her jeans because she had another visitor after Kenzi departed. Perhaps Jamie had pulled on her clothes to answer a knock at the door, invited that person in and then undressed again—this time removing her panties and jeans together. The lack of water in the bathtub could be linked to the damp, bloody rag found near Jamie’s body, Weis speculated. Perhaps the killer had used the rag to clean up hair or fingerprints or blood in the bathroom and soaked up the water too. After all, the agents questioned Kenzi about the rag, but she was never able to explain its presence, he noted.
The motive seemed suspect to Weis as well. The agents had come to Huntington with a prepackaged motive, and lo and behold, Kenzi confessed to that motive. As another defense attorney would later say, lesbian rage was “the sort of thing that sounds great in a frat house, but laughable to real women.”
Ofshe was interested and said he would meet with Kenzi in person. Weis certainly must have been glad for the expert to take the case, but he also must have been worried about whether Kenzi fit the profile of a false confession. She had admitted the murder to authorities on three occasions in one month—twice in the Ramada and a third time in the lockup after waiving her Miranda rights. She had never accused the agents of beating her or even threatening her with violence, and now, in her jail cell, she wasn’t exactly proclaiming her innocence. She freely admitted that the day she was arrested half of her was convinced she had killed Jamie, and when she spoke of her confession these days, it was in amorphous terms that were a far cry from an emphatic denial.
I have two competing memories, she would say. The one in which I am innocent had sounds and smells and sensations. The one in which I’m guilty is like a silent movie, images but no other sensations.
No one wants to believe that false confessions occur through psychological coercion. Torture is one thing, but if a totally innocent person can be coerced with mere words into admitting a gruesome crime, it seems to say something disturbing about human beings. It makes people weak and their memories malleable.
In the last decade, however, a series of well-publicized cases has left no doubt these confessions sometimes happen. In 1998, a fifteen-year-old teenager in San Diego, Michael Crowe, and a high school classmate confessed after lengthy interrogations to stabbing his sister to death as she slept in the family home. On the eve of trial, DNA tests showed spots of the victim’s blood on the shirt of a mentally ill drifter caught wandering near the home the night of the murder. The charges against the boys were dropped, and the homeless man was later convicted in the girl’s death.
Perhaps the best known case is that of the five teenagers convicted of attacking a jogger in Central Park in 1989. During protracted interrogations, all five youths confessed to beating up the woman, although they gave contradictory stories. In 2002 a violent sex offender came forward to say that he was the actual rapist. DNA tests bore out his statement.
Experts like Ofshe have documented scores of other cases. Much of the law enforcement community remains skeptical. Many rank and file detectives who interrogate suspects on a daily basis simply do not accept the idea of false confessions. Even in the two most prominent cases, Crowe and the jogger teens, some investigators still refuse to believe they got the wrong men—even in the face of DNA results. In the San Diego case, some involved in the investigation say privately they remain convinced Crowe and his friends are guilty and that the homeless man is just a scapegoat. In the jogger case, a report by the NYPD suggested the teens had initiated the attack and the rapist who came forward was the last in a string of assailants.
There are, of course, those in law enforcement who concede that false confessions sometimes happen. Some states, including Minnesota, Alaska and Illinois, and many local jurisdictions now require videotaping of interrogations in serious crimes to eliminate any question of whether a confession was coerced. Neither the FBI nor the army, however, videotape interviews. Even those in law enforcement who are concerned about coercion disagree strenuously with Ofshe and other experts about how often it occurs. They say they are extremely rare, but that when they do happen, the massive press coverage leads the public to believe they are more common than is actually the case.
While maintaining that they occur “regularly,” Ofshe and others agree that there is no feasible way to determine their frequency. A researcher would need to know the number of interrogations that occur every year, the number of confessions that result and the number of those confessions that are eventually proved false.
“No one with a brain says they know,” Ofshe says.
Researchers have identified two types of false confessions. The first and more frequent type is known as the compliant false confession. In these situations, a suspect knows he is innocent, but confesses because he believes his situation is hopeless, and telling the police what they want to hear will result in better treatment than maintaining innocence. Police have often lied to these suspects about the evidence, which is legal, and told them they have DNA or eyewitnesses that establish their guilt beyond a reasonable doubt. In some cases, the suspect believes he will be allowed to go home once he tells police what they want to hear. In others, the suspect thinks he will be wrongly but inevitably convicted, and a confession will make for a lighter sentence.
In the second type of confession, known as a persuaded false confession, the same fake evidence and sense of hopelessness exist, but their impact is different. The innocent person comes to believe that he actually committed the crime and confesses because he considers himself guilty. In these cases, the person comes to distrust his memories and concludes that he must have blacked out the offense. In some cases, these people believe they carried out the crimes during an alcohol-or drug-induced blackout.
Before he traveled east that summer, Ofshe asked Kenzi to write out an account of her confession. I want to know how she went from saying she didn’t do it to saying she did, he told her lawyer. Ofshe requested as detailed a description as possible, and Kenzi sat for hours in her cell writing out a chronology of the confession in longhand.
DiVittis had written a brief summary of his interview, and Mansfield had filed a report of the confession’s contents, but what Kenzi wrote out for Ofshe was the first extended account of the confession.
She wrote that when DiVittis and Mansfield accused her of murder on the second day of the interview, she had been shocked. She said she insisted that she had nothing to do with Jamie’s death, but DiVittis told her that they knew she had done it. She said he told her they wanted to help her remember what she had done. She wrote that he suggested she might have blocked out what happened because it was just too gruesome.
“Sometimes as a defense mechanism when something is too much for the brain to handle, it will create a memory over a memory, try to patch things up and make the memory how we want it to be,” she quoted DiVittis as telling her.
She said that he told her that if she couldn’t recall what she had actually done, maybe they could get at the truth by talking about what she had felt. Remembering emotions, he said, might come more easily than remembering actions.
“He proceeded to ask me how I felt about females. Did I feel lust? Excitement? Anger? I couldn’t really answer. I had never put a feeling to it,” she wrote. “He then asked more ‘specifically,’ ‘How did you feel when Jamie undressed for you that night?’…[He] then asked me if I liked what I saw.”
Kenzi said she hesitated and told DiVittis that she really didn’t know what he was getting at. She said he appeared frustrated and the tone of the interview changed. If you won’t go the emotional route, we’ll have to do this the hard way, by actions, she quoted him as saying.
She said he asked how Jamie had taken off her clothes, and she repeated what she had told investigators before: She took off Jamie’s shirt and pants and then left. She said he told her that was a lie. She said he asked again how Jamie had taken off her clothes, and she again said she did not know since she was not in the room. She said DiVittis accused her again of lying, this time in a sterner voice. Where was Jamie when she took off her bra? she said he asked. This time, he held up a photo of Jamie’s bra on the bathroom floor, she wrote. Where did she take off her bra? he asked. Kenzi said she paused, looked at the photo and said, In the bathroom. She said he replied, That’s right, and then quickly moved on to another question.
She said he asked if Jamie had taken off her pants in a seductive manner. Kenzi said she once again told him she didn’t know because she was not in the room. That’s a lie, he told her. We know you were there. Try to remember. Did she shimmy out of her pants? She wrote that he showed her the photo of Jamie’s panties inside her pants. I guess she took them off at the same time, she recalled telling him.
According to Kenzi, the same pattern was repeated with dozens more leading questions. She first denied the incriminating assertion in DiVittis’s question, he rejected the denial as a lie, and then he asked her the question again with more forceful words and sometimes with a photo from the crime scene. In the statement she wrote for Ofshe, Kenzi said she eventually accepted the idea that she might have repressed killing Jamie, and that each time DiVittis asked her one of his leading questions, she scoured her mind for an answer.
“I was slouched down in a chair with my eyes closed, trying to find the memories,” she wrote.
She said her mind was a big black empty space, and as she thought harder, it would become gray, then white, and images would appear. The images were like still photos of her and Jamie in different positions in Room 103, she wrote. She said her mind flipped through the images as if looking at a small photo album until she landed on one that fit the scenario suggested by DiVittis’s questions: Jamie naked before her. Jamie in the bathtub. Jamie bloody and staring up at her.
“The whole session was mostly him asking questions, me pausing, trying to fight the black void in my head. Seeing pictures appearing [and] then disappearing,” she wrote.
When she finally fixed on one image that seemed to go along with the question DiVittis was posing—whether it was Jamie shimmying out of her pants or her naked body on the floor—she described it to him as if it were a memory, he accepted it and they moved on to another question, she said.
She wrote that when she stumbled in trying to explain why she had killed Jamie, DiVittis told her that they needed to find the “trigger” that had caused her rage. There’s something in your background that explains this, he told her. What could it be that would make you feel this scared and angry? She said she searched her mind for troubling events in her childhood and found an incident at day care when she was young and some boys had tried to look up her skirt. I didn’t want to be naked in front of Jamie the same way I didn’t want to be naked in front of the boys, she told DiVittis.
She said that by the end of the second day, she had come to believe that the images she found when questioned by DiVittis were reality and the memories she had held in the year since Jamie’s murder—memories of being an innocent witness rather than a perpetrator—were false. This realization came to her in what she described as an almost trancelike state.
“I can’t give precise details because it was like a dream,” she wrote.
When she had written the final page, she mailed her statement to Ofshe at Berkeley. The professor had sought interviews with the agents as well, but the FBI and the army turned down his requests. Kenzi was his only source for details about the events inside the Ramada and she could hardly be called an unbiased narrator. Facing extradition and a possible death sentence, she had every reason to make the interview out to be as coerced as possible.
But perhaps surprisingly, the story Kenzi wrote out for Ofshe did not differ significantly from the accounts the three investigators would later give. In testimony and interviews, the men echoed her basic chronology of the confession. They recalled many of the same exchanges between DiVittis and Kenzi, sometimes word for word. They agreed that she was slouched down in a chair with her eyes shut for much of the interview, and they remembered DiVittis asking questions over and over until he got an answer.
All three men made clear that they thought her repression claims were bogus and that she was simply grabbing a face-saving lifeline DiVittis had thrown to her, but Lee acknowledged that she repeatedly muttered about murky memories before giving DiVittis answers.
“It’s foggy, I can’t see, I can’t remember,” he recalled her saying.
Four years later, in a conference room at FBI headquarters in Washington, D.C., Lee described watching the interrogation as a breathtaking, almost supernatural experience. The ebb and flow between Kenzi’s denying and admitting was so dramatic that at one point, he and Mansfield snuck out of the room and into the motel hallway to regain their composure.
“What is happening here? This is so bizarre,” he remembered them saying to each other.
Returning to the room, he felt electricity in the room.
“The hair on the back of my neck stood,” he said.
Mansfield recounted a similar mix of excitement and dread.
“We had dedicated most of our waking hours to this investigation for the better part of seven months…we were beginning to understand what took place that night, and it was very important to us, not to mention the impact it was going to have on the Penich family,” he recalled.
Kenzi Snider’s written account of the confession was particularly fascinating to Richard Ofshe because of its focus on repressed memories. Before studying coerced confessions, Ofshe’s specialty was cases where adults claimed to recover memories of childhood sexual abuse and other horrors. In the late 1980s and early 1990s, there were high-profile cases where children accused parents, day care workers and others of rape, murder and satanic worship during their youth. Ofshe concluded most if not all of these cases were bogus and that psychotherapists were planting the “memories” in their patients’ heads through hypnosis, dream analysis and other means. In 1996 he coauthored Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, which lambasted counselors who claimed to be helping clients recover memories of abuse. After reading Kenzi’s statement, he wondered if Kenzi’s interrogation had been a condensed version of this noxious therapy.
In August 2002 he flew to Charleston and drove to the jail. Guards led him to a small interview room where Kenzi was waiting. He looked at the tall, blond young woman with bright blue eyes and eager smile and felt an immediate sense of compassion.
“These people, I know what’s happened to them better than they do,” he recalls four years later. “I understood how she had been manipulated. I sympathized with her plight. I realized that she did not comprehend what had happened to her, but I also realized it wasn’t my job to educate her.”
Ofshe turned on his tape recorder and began questioning her. She told him about her dueling memories of the night of Jamie’s murder and about how one felt like a real memory and the other like a silent movie.
“She was very conflicted about what was real,” Ofshe remembers. He placed her in the second type of coerced confession, the persuaded false confession, where an innocent person comes to believe he committed the crime.
“One of the things that was unique about her, though, is that she never fully accepted the idea that she committed the crime, but she never fully dismissed it either,” he says. “I guess it is sort of a tribute to her honesty.”
After reviewing the chronology of the confession once more, he asked her about her background. Specifically, he wanted to know about anything that might predispose her to DiVittis’s suggestions or hypnosis in general.
She told him that she had read about repression in a textbook for an introduction to psychology course. She also mentioned that she had taken a couple of yoga classes in which the instructor talked about “mind-emptying” as a method of relaxation. Finally, she noted an unusual nighttime ritual she had as a child: She would listen to classical music as she fell asleep and visualize animated scenes in her mind to accompany the music.
“Like in the movie Fantasia,” she told him.
Days after he interviewed Kenzi, Ofshe sent a report to her lawyer calling her confession “deeply troubling for a number of reasons.” He said the fact that it rested on the concept of a repressed memory made it “utterly worthless” as evidence.
“…Miss Snider’s so-called confession is founded on the existence of a mental mechanism [repression] that has been discredited and rejected by the scientific community,” he wrote, pointing readers in a footnote to a variety of sources on recovered memories, including his own book.
He took direct aim at the investigators’ contention that Kenzi was simply making up the repressed memory claim so she could confess with a small amount of face-saving.
“How was it that a woman who had supposedly committed a murder, who was able to successfully lie to Korean police and (probably) to American military investigators the day after the killing, who successfully eluded arrest for 11 months and who had sufficient control over her guilt to interact with her victim’s former fiancé could be gotten to confess? Surely, someone who could carry off the deceptions attributed to Ms. Snider would have sufficient nerve to resist an accusation by three investigators who had not one shred of hard evidence to back up their accusation,” he wrote.
He said that the confession investigators got reflected only their own preconceived notions. They came in thinking they could get her to say she had repressed the memory and lo and behold, she said she had repressed the memory. They came in thinking they could get her to say she and Jamie were experimenting sexually, and lo and behold, she says she and Jamie were experimenting sexually. They came in thinking they could get her to admit to murder, and voilà, she admitted to murder, he argued.
“[I]t is my opinion that the inculpatory statements she made on February 4th, 5th and 6th and March 1, 2002 are far more likely to be the product of the interrogation methods used by Agents DiVittis, Mansfield and Lee than they are to be statements based on Ms. Snider’s personal knowledge of her participation in the murder of Jamie Penich,” he wrote.
He said the agents had used the usual formula for false confessions: legal coercion and hopelessness. They told Kenzi they had proof she was the killer, and said they would not accept anything from her but incriminating statements.
“The tactics of the interrogation caused Ms. Snider to come to distrust the reliability of her memory and thereby to become confused about whether or not she had killed Ms. Penich,” he wrote.
Ofshe wrote that Kenzi had slipped into a trance during DiVittis’s questioning, perhaps because she was predisposed due to her experience with yoga and the nightly Fantasia visualizations, or what he grandly termed “Ms. Snider’s almost decade long experience with self-hypnotic visualization and mind-emptying techniques.”
He wrote that the best way to gauge a confession’s truthfulness is to see whether the account the person confessing gave fit the evidence. Did he or she know information only the killer would know? That test “for fit” with the evidence was even more imperative in this case, he said, because Kenzi knew the victim well and had an intimate view of the crime scene before police arrived.
“Miss Snider’s confession is difficult to evaluate for fit because of the failure to record it and because Ms. Snider reports that the interrogators grossly contaminated her knowledge of the crime by deliberately educating her as to the answers that they wanted on various points related to crime scene facts,” he said.