With an opinion yesterday from the Texas Court of Criminal Appeals, ACLU client Max Soffar moves a step closer to an unjust execution. And, little more than one year after the execution of Troy Davis, our system moves closer to another miscarriage of justice.

Soffar is an innocent man on Texas’s death row, who falsely confessed to crimes he didn’t commit. He’s been there most of the last 32 years after being convicted of killing three people in a 1980 Houston bowling alley robbery. His conviction was based entirely on false words from his own mouth.

Yesterday’s opinion came in Soffar’s latest appeal, filed by attorneys from the law firm Kirkland & Ellis. The court upheld Soffar’s death sentence, even as three judges declared in a joint concurring opinion that they lack faith in his conviction. They note that Soffar’s “confession does not inspire confidence in its accuracy [and] appears to be a tale told by one who heard about the robbery-murders rather than by one who committed them.”

Penned by Judge Cathy Cochran, this powerful concurrence begins by recalling what a previous appellate judge had said about this case. When Judge Harold DeMoss reviewed the case (and reversed the original 1981 conviction), he stated that he had lain awake nights "agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record." Judge Cochran expressed that she feels “the same way about the similar record from the second trial conducted twenty-five years later.” She added, “There is something very wrong about this case.”

Sadly, despite the serious doubt over his confession, the court upheld the death sentence against Max Soffar because they didn’t think he proved there were any constitutional violations in his treatment and legal representation (a point on which we disagree, but that’s for another day).

Judge Cochran’s analysis of Soffar’s confession echoes the framework set out just last week by my colleague Denny LeBoeuf in her recent piece for the New Orleans Times-Picayune concerning the exoneration of Damon Thibodeaux -- who also falsely confessed -- from Louisiana’s death row. She explained that the police should scrutinize confessions given by suspects suffering from cognitive confusion, limited intellectual functioning or substance abuse, and that officers should check to see if the suspect is providing new information – not information already in the public domain – that matches with the forensic evidence.

Judge Cochran checked all of these boxes in her list of problems with Soffar’s confession: 1) he had a child-like mind, low IQ and substance-abuse problems; 2) he provided no new information not already publicized in the extensive coverage of this well-known crime; and 3) perhaps most importantly, Soffar’s details did not match the known facts.

Indeed, Judge Cochran reviewed 15 different inconsistencies between Soffar’s confession and the known facts. Summarizing, she observed, “None of these individual inconsistencies, by themselves, would necessarily cast doubt upon the accuracy of applicant's version of events, but when so many of his details do not comport with the known evidence, something smells fishy.”

Echoing LeBoeuf, Judge Cochran noted that many people believe that “only a guilty person would ever confess to murder.” But Judge Cochran showed the common wisdom is wrong with a list of proven examples of false confessions from those in the Central Park jogger case to the “Norfolk Four.” Damon Thibodeaux makes one more.

Judge Cochran concluded by noting her hands were tied by procedural rules, despite her significant doubts in Soffar’s guilt: “[A]lthough I personally do not have great confidence in the reliability or accuracy of applicant's written statements and hence in his culpability for the triple murders, I was not the chosen factfinder.”

This is more proof that the death penalty is a failed government program. When our criminal justice system surrenders these types of decisions to procedural technicalities, it surrenders any moral authority to execute.

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