Criminal Appeals Court Concedes Pay To Convict Scheme

It’s a rare day when an Appellate Court admits a law enforcement agency has a financial incentive to secure convictions. Tennessee’s Court of Criminal appeals just did.

Because the money from the $250 BADT fees is placed directly in the intoxicant testing fund which is “designated for exclusive use by the TBI,” there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions.

The Tennessee Bureau of Investigations, or TBI, is the primary state agency analyzing blood samples and breath tests administered for DUI cases. Such analysis requires a person trained to examine each sample properly, and those people have to be paid for their time.

It isn’t a good look, though, when the money putting food on the analyst’s table comes from a fund that gets bigger with every DUI conviction. Yet a few lines in a state statute did just that, placing the money from every DUI conviction the Bureau garnered in a special fund dedicated to fattening TBI analysts’ pockets.

At the time of Decosimo’s arrest, Code section 55-10-419 (2012), which imposed

a $250 BADT fee for blood and breath tests and required the deposit of this fee into the TBI’s toxicology unit intoxicant testing fund.

This was different from other fines and fees in that the moneys paid by defendants went straight to the TBI, for exclusive use by the TBI. It paid for the creation of a forensic scientist position, paid the scientists, and bought all their shiny toys.

Best practices for distribution of funds collected by a court would ideally see the money first hit the state’s General Fund, then distributed to the Tennessee Bureau of investigations. What made the TBI different? They told the state they needed more money.

TBI Director Gwyn, in his testimony before the Senate Judiciary Committee on February 11,  2014, explained that in 2008 the TBI was “faced with some pretty deep cuts” that would have required the TBI to “shut down some disciplines with our crime laboratory” or to “start charging local law enforcement for testing.”

So at the behest of the TBI, the state legislature raised the fee from $100 to $250 and made sure the money went straight to the Bureau for “efficient and expeditious” operation. The only problem was “efficient and expeditious” didn’t always equate to correct.

Testimony from one attorney found TBI Agent Kyle Bayer, one of the Bureau’s forensic scientists, failed to follow protocols and often produced faulty results when testing blood samples. Another attorney testified the TBI’s “Official Alcohol Report” was “the driving factor” in any DUI case. A 2012 change in the laws making blood tests mandatory if an impaired driver killed someone resulted in a four to five month delay in returned results.

In response, the State argued the only way the fine was unconstitutional was if defendants could show the TBI was falsifying test results to obtain the $250 fine for its coffers. Furthermore, since their forensic scientists were serving as experts and not judges, they weren’t required to be neutral.

To paraphrase the Tennessee Court of Criminal Appeals, “That would be a big fat nope.” In a surprise twist, the Court held the additional $250 fine per conviction denied DUI defendants their right to due process.

The requirement of a neutral and objective TBI forensic scientist fits well with the State’s duty to pursue truth and justice in criminal cases…The need for an unbiased TBI forensic scientist is also consistent with holdings prohibiting the State’s suppression of evidence or its use of false testimony, which likewise implicate due process concerns…Because the State has the  duty to pursue truth and justice, it has the obligation to provide an accurate, unbiased BAC result, not a result that is deemed correct until disproved by the defendant. (emphasis mine)

Not every defendant charged with DUI can afford independent testing. If the TBI has a backlog in testing, there’s an incentive for defendants to plead guilty and settle their case before lab results return. Since each guilty plea netted TBI another $250, they were obligated to make sure their results were accurate and unbiased.

The law has changed since Rosemary Decosimo challenged the TBA’s financial interest in securing DUI convictions. Ms. Decosimo will get another hearing more in line with her rights to due process as a result of this appeal. That doesn’t change the unknown number of defendants who didn’t get a fair chance at trial because the TBI, and the state legislature, prioritized money and convictions over a defendant’s constitutional rights.

Negative Suggestion: A Killer Deal-Breaker

If you’re a parent, been around kids, or played with children for any length of time you’ll learn one cardinal rule: The easiest way to get a small child to do something is to tell them NOT to do it. This is called “negative suggestion,” and it is a psychological mind trick that could explain why people engage in some of the worst, most unspeakable behavior.

Consider the following “true crime story,” Netflix’s “American Vandal.” Spoilers after the trailer if you’ve yet to see it.

In the end of the series, though Dylan, the character at the center of this show is proven innocent over the high school vandalism incident, he eventually commits the act himself against his Spanish teacher because people saw him as a vandal. The more people perceived Dylan to be a graffiti artist, the more it pushed him into actually performing that act.

Children are the most prone to negative suggestion because they’ve not developed the social habits or impulse control of adults. Telling a two year old child “Don’t talk with your mouth full at the dinner table” will produce drastically different results than telling a twenty-two year old. Two decades of age teach a person there are certain social behaviors that are unacceptable, and the mind forms a sort of block preventing one from engaging in those bad acts.

That doesn’t mean adults are immune to negative suggestion. In fact, negative suggestion could move a person in the right context to kill. Watch the following video, then I’ll attempt to explain how the poor kitten was doomed from the start.

Now that you’ve watched the video, consider the following breakdown:

By :35 in the video, Brown establishes credibility with the subject. A very realistic looking setup displays a kitten in a box with wires connecting to a button. The subject is told if the red button on the table is pressed, it will deliver a massive electrical shock to the box and kill the kitten.

By :51 the subject is told her mission is to not kill the kitten. If she succeeds in this she wins 500 pounds If she doesn’t, then she kills the kitten.

Note the slap of Brown’s hand on the table containing the button which theoretically kills the kitten. It does two things. First, it puts an image in the subject’s mind of pressing the button without actually pressing the button. It also punctuates what Brown ACTUALLY wants the young woman to do: “kill the kitten.”

By 1:01 Brown’s officially gotten his subject to believe no legal repercussions will occur if she kills the kitten. She’s told there’s a “legal loophole” and four kittens have been killed on live British television.

He then says “This will be the fifth.” It’s a devious phrase inserted into the script, because now Brown is telling his subject without telling her that she’s going to kill the kitten.

By 1:30, while the subject is playing with the kitten through the box, Brown begins the negative suggestion. He tells her to try and not think about it for a minute. When she responds with a question, he says “It’s best to take your mind off the kitten.” By telling her to try and take her mind off the kitten, Derren is implanting the suggestion that she needs to fixate on the kitten.

By 2:06 Brown begins regressing his subject to a more childlike demeanor. He fixes himself a cup of tea after offering it to the subject, then hands her Tang. Tang is typically a children’s drink. She notices this, and notices he has tea. He brushes this off with another slap of the table and the command to draw something for him.

At about 2:25, marvel at the fact Derren Brown knows his subject is going to draw a kitten. Why? Because he told her previously to NOT think about the kitten! As an added mental punch, he puts the paper and crayons next to the button and invites his subject to bring the Tang with her.

Three minutes into the video Brown slaps the table next to him again and asks about a toy the subject was to bring for a “psychological test.” Here’s a killer. She brought a childhood teddy bear named “Scriffy.”

“Names like that just take you to back when you were that age,” he says.

By 3:28 he’s got her hooked. Brown asks his subject to close her eyes and imagine a time when she was younger, and maybe a little bit naughty, and associate the teddy bear with that image.

Ten seconds later he’s asking his subject how the memory of her father making teddy bears talk made her feel. We’ve now hooked imagination and emotion into the suggestion. It’s a one-two punch at this point. She’s feeling happy. The image of her father making her teddy bears talk is funny.

The next question: “When were you most mischievous?” attempts to put the subject in a state where they’re preconditioned to do something bad. Her description is putting on her mother’s makeup. By 3:55 into the video he’s asking her again how being mischievous made her feel. Brown is hooking the act of doing something bad with a feeling.

“It’s exciting…a growing up thing…” she says.

Happiness and excitement are all she can think about now when it comes to this new juvenile state of mind. This kitten is toast at this point.

4:06: “Feels good, doesn’t it?” Derren Brown asks. All while he’s clicking the button on a red ball point pen. His subject’s eyes aren’t open but she hears the audible click of the button on the pen. She’s now begun to associate the action of pushing a button with feeling exciting and happy.

Around 4:18 comes one of the most striking points in the video. Brown asks his subject to draw another cat. This one is larger and more child like in comparison to the first. He even asks her to sign her name to the drawing, as children often do.

Brown now applauds Lauren with “That’s a really lovely pussycat.” Note the change in description of the animal. First it was a “kitten,” now a “pussycat.” The latter is a more juvenile term for the animal, and further cements the lock on Lauren’s brain for a childlike, suggestive state.

She’s going to push that button now whether she knows it or not.

By 5:03 Lauren sees Brown click the red button on the ballpoint pen a number of times. This is reinforcing a belief in her head that if she pushes a red button nothing bad will happen.

One more slap of the table and Brown announces two minutes are left. He produces a large digital two minute clock (with red numerals), and at 5:26 into the video Derren Brown delivers the final linguistic kill shot*: “Whatever you do, don’t press the button.” Anchoring that with a clicking sound associates Lauren’s mind with the clicking sound of the red ball point pen, which further pushes Lauren towards killing the kitten.

Six minutes into the video, Lauren is in a state of crisis. She sees how much time is left on the clock, she plays with the kitten, and she’s in turmoil. She wants at a base level for the kitten to live, but she’s resisting a massive impulse to push that button.

At 7:12, notice the facial expression on Lauren’s face. She can’t believe what she’s about to do.

With one second left, the kitten is toast.

Look at those times when negative suggestion impacts you and the interactions with others in your everyday life. Sometimes the more someone tells you to not do something, it’s the easiest way to get you to do just that.

And hopefully, by now you’ve figured out how pliable our minds truly are and how they can be influenced for better or worse with the right skill set.

Coerced Confessions on Steroids.

It’s no secret law enforcement, with the right tactics, can get an unwitting subject to confess to crimes they didn’t commit.

One of the most recent, and infamous examples, is Brendan Dassey, the teenager at the heart of Netflix’s true crime series “Making a Murderer” who confessed to a crime he didn’t commit after a brutal interrogation.

Criminal defense attorneys consistently tell people they should not speak to police absent presence of counsel. The mantra is simple. “Shut Up. Don’t Talk.” But the human instinct to prove innocence is so strong that people willingly go to police stations and talk up officers in the back of squad cars to insist they didn’t do something.

You don’t need long stretches in an interrogation room, lack of sleep, or a desire for food to get a coerced confession. Simply playing to someone’s sense of shame or guilt can produce a confession, even to murder.

Check out the video below to see how even a nice guy with a blameless history can be pushed to confess to a murder that never happened.

Could you, the nicest of people, resist the same level of suggestion in the same environment? Would you be able to resist the tendency to confess?

This is why you don’t speak to police without a lawyer present.

When Mob Mentality Goes Wrong

“Deindividuation” is a social psychology concept explaining mob mentality. When a group loses self awareness, it demonstrates a capacity to do harm, rather than good.

Examples of deindividuation in real life are the “#HasJustineLanededYet” movement, “#MeToo,” the Title IX “campus rape frenzy,” and the Milgram Experiment.

If you think deindividuation is a made up term that has no effect in real life, check out the following video:

After viewing, ask yourself. Do you possess the capacity to stand out from the mob if you are granted the condition of anonymity? Would you pick the positive choices if given the opportunity?

It’s easy to say “I’d never do that to a person.” It’s a lot harder to put that into practice.