Monday, June 19, 2017

Never Trust An Eyewitness

A number of people believe Bugliosi 'coached' witnesses ('coached' to me means: directed their testimony where he wanted it to go before they took the stand-told them how to answer his questions). I think the theory goes like this: Bugliosi invented the Helter Skelter motive from a few philosophical musings Manson may have made during the timeframe. Bugliosi then expanded the thread to become 'Helter Skelter' (perhaps in anticipation of a future book deal). He then communicated Helter Skelter to at least a dozen other witnesses through his coaching and he threatened witnesses if they didn't adopt his theory of the case. He then had them all come to court and tell the story. This never happened.

But.... that doesn't mean we can trust the eyewitnesses and it also doesn't mean Bugliosi didn't influence the testimony of witnesses. He could have done so with no ill intent at all and without even knowing he was doing so.

Eyewitness Memory

It may come as a surprise but eyewitnesses to traumatic events are remarkably unreliable witnesses. Far from being the source of detailed information regarding such events they are frequently wrong and frequently include in their descriptions of events information borrowed from other sources. They seldom actually are able to recount the events with any accuracy a short time after the event.  In fact, eye witness memory is so unreliable that in 2014 the National Academy of Sciences after an extensive review of the issue called for major changes in both law enforcement procedures and the conduct of criminal trials to address the problem. While you read this quote consider these crimes.

"Factors such as viewing conditions, duress, elevated emotions, and biases influence the visual perception experience. Perceptual experiences are stored by a system of memory that is highly malleable and continuously evolving, neither retaining nor divulging content in an informational vacuum. As such, the fidelity of our memories to actual events may be compromised by many factors at all stages of processing, from encoding to storage and retrieval. Unknown to the individual, memories are forgotten, reconstructed, updated, and distorted."

From the NAS study: Identifying the Culprit: Assessing Eyewitness Identification (2014) 

Problems When Memory is Encoded

Studies have identified a number of factors that can impact memories at the time the events occur- encoding. One of the most significant is clearly present in this case when it comes to our eyewitnesses: the trauma or the stress level of the event. 

Eyewitnesses to traumatic events frequently have a poorer memory of the event due to the stress of the event. The graph to the left shows how this happens: at the peak (which varies witness to witness) a witness will have clarity and actually remember events perfectly but outside that peak stress zone (too much stress or too little) memory will suffer significantly. They will become 'weapon focused' and remember seemingly inconsequential details while being unable to remember important events or ‘the big picture’. These witnesses will frequently describe their emotional or mental status during the event as 'being in shock'. Aharonian, Ani A. and Bornstein, Brian H., "Stress and Eyewitness Memory" (2008). Faculty Publications, Department of Psychology. University of Nebraska-Lincoln.

In one study subjects were shown a video of a violent attack. They were then asked to identify 40 items of information from the video. The group consistently underperformed a second group who watched a ‘sanitized’ version of the same event. Clifford and Scott (1978)

Examples of this effect can be seen in this case.

In the midst of the horror, after Jay Sebring is shot and Watson is stabbing him, victims are screaming and chaos ensued, Atkins has a vivid recollection of a dog peering in the window of the house- an inconsequential event. When asked in a narrative style to describe to the grand jury what happened this memory is foremost in her mind.

Q: What happened next?
A: There was still some light from outside so that we could see on the inside. I looked over and I saw a dog in the window. The dog ran away.

This effect, some experts warn, can also make the witness appear calloused or cold hearted: 'How could they not see 'X' and notice 'that'? 

Bernard Crowe offers a classic example of weapon focus, carrying the issue one step further and actually requiring the gun to be pointed at him: weapon focus.

Q: I show you People’s 40 for identification. Have you seen that revolver before?
A: Yes, It looks like it. But I was a distance away.
Q: This looks like the revolver Mr. Manson had in his hands when he shot you?
A: Why don’t you point it at me. Then I could tell.
Q: Something like this?
A: Yes. Could be.

Kasabian remembers Frykowski falling into the bushes and can describe this event and the events immediately surrounding it with great detail but never mentions Frykowski and Watson passing within feet (maybe inches) of her as she stood on the walkway when they crossed the walkway into the yard. Frankly, remembering Krenwinkel's 'upraised knife' is likely the result of the traumatic nature of these events. 

How does Kasabian describe her mental state? Being in shock.

Q (Buglioli). Now, when you say your car, you are not referring to the car of the man in the driveway?
A: No.
Q. You are referring to the car you came in?
A. Yes.
Q. Did you enter the car?
A. Not at first.
Q. Were you by yourself at the time?
A. Yes.
Q. What was your state of mind at that point?.
A. I was in a total state of shock.

Q (Fitzgerald). And at that time you were in a total state of shock; isn’t that correct?
A. Yes.
Q.That has been your previous testimony, that you were in a total state of shock.
A. Yes. 

The first thing eyewitness memory studies suggest is that it is probable none of our eyewitnesses have accurate memories due to the traumatic nature of these events, alone. This has nothing to do with lying or coaching by Bugliosi. It is simply what happens when a witness is confronted by such violence: their memory suffers. 

Memory Storage Issues

The second place where memories are affected is while they are stored and before they are recounted. 

It is indisputable that the passage of time does not improve eyewitness memory, ever. That is why myself and others rely more heavily on sources closer to the events of July-August 1969 instead of parole hearings and books written years after the events. Witnesses forget and when they do other factors begin to fill in the missing pieces when they are required to recall the past event.

One study compared the accuracy of witness identifications after 3 days and 5 months. The study found no false identifications after 3 days but after 5 months, 35% of identifications were false. Malpass and Devine (1981). Although an admittedly simplistic, non-scientific, approach, given this study by December 1969 our eyewitnesses may have forgotten or reported inaccurately about a third of what occurred on those nights.

Numerous studies have shown that memory changes over time. Eyewitnesses incorporate information learned after the event into their memories. For example, they may talk to another witness, read a newspaper account or see a TV account of the event and use that information to fill in their memories. This is called witness conformity. And if the source is viewed as 'reliable' by the witness the likelihood is even greater that they will adopt the memories of someone else. Gabbert, Fiona; Wright, Daniel B.; Memon, Amina; Skagerberg, Elin M.; and Jamieson, Kat, "Memory Conformity Between Eyewitnesses" (2012). Court Review: The Journal of the American Judges Association.

Eyewitnesses may also fill in holes in their memory by combining two memories into one or by using biases or expectations of what probably was seen or what should have been seen. The image to the right was used in a study in 1947. Allport & Postman 1947. The vast majority of subjects after being shown the picture later identified the African-American as the person holding the razor.

And it seems that as witnesses recall (describe) an event over and over as time passes they drop details from earlier versions and add new details to later versions. These details are frequently obtained from other sources. All things being equal, accuracy declines with each new telling. 

It is, then, plausible that after Susan Atkins' Grand Jury testimony (or her story) became common knowledge (and certainly after the trial) every one of those present at Cielo would begin to adopt what I call the 'official narrative' as their actual memory. This can happen even if, for example someone thought they remembered that Sharon Tate was stabbed on the front porch. They will or could abandon their own memory and adopted someone else's and again, no evil intent need be ascribed. They are simply filling in their own missing information from what someone else who witnessed the event describes. Even if they have a memory of an incident they might abandon theirs if their memory is 'sketchy' and adopt the memory of another because they trust that recollection or it seems more 'solid' then their own.

Why This Happens

Most people conceive of memory like a video tape. Turn it on and the memories play. In reality memory is more like a jigsaw puzzle with pieces missing. Viewing conditions, duress, elevated emotions, other versions of the story and biases increase the number of missing pieces and the passage of time increases the number further. As humans, we attempt to fill in these missing pieces and draw on outside sources.

So how might Bugliosi have influenced the witnesses in this trial?

Memory Recall Issues

This is where I believe Bugliosi had the greatest chance to influence the evidence in this case and he even helps me reach this conclusion by bragging about it. 

Studies show, overwhelmingly, that an interviewer can create memories based on how they interview the witness. By 'create memories' I mean they can fill in those missing jigsaw pieces (and even replace some of the existing pieces with alternatives) through the interview process. I mean they can create memories. 

More importantly the witness will actually come to believe the false or created memory. The witness will confidently adopt that information as their actual memory. That, by the way, will make them less susceptible to impeachment by cross examination because they truly believe it. This is called the ‘misinformation effect’.

Jean Loftus, Phd was one of the leading original psychologists in the study of eyewitness memory. In one study she showed groups a film of two cars having an accident. To one group she asked "How fast was the blue car going when it contacted the red car?" To another group the question was framed as "How fast was the blue car moving when it smashed into the red car?" Those who responded to the second question on average placed the speed of the blue car 10+ mph faster than those asked the first question. (Loftus, Miller, & Burns, 1978)

Misinformation effect can affect memory easily, and without any intention to deceive (Allan & Gabbert, 2008). Even slight differences in the wording of a question can lead to misinformation effects. Subjects in one study were more likely to say ‘yes’ when asked “Did you see the broken headlight?” then when asked “Did you see a broken headlight?” (Loftus, 1975). The image they had previously been shown did not include a broken headlight.

If the interviewer uses leading questions in the interview the misinformation effect is compounded. We already know Bugliosi had a habit of using leading questions in the trial. Why would we believe he was any different in the interview process? We also know he was described by some as having a quick temper (a sign of impatience). That would tend to reinforce the notion he would lead a witness to get to the point quicker. 

Now, what happens after multiple interviews? The witness’s memory of events doesn't deteriorate with multiple interviews instead it gets better. So what's the problem?

The problem is this is usually due to 'created' memories supplied inadvertently (or perhaps purposefully) by the questioner. Multiple interviews fill in those missing pieces of the jigsaw puzzle. Engelhardt, Laura, "The Problem with Eyewitness Testimony" Stanford Journal of Legal Studies, Vol. 1.1 

In this case Bugliosi brags about interviewing witnesses multiple times.

"I rarely interview a witness just once. Often the fourth or fifth interview will bring out something previously forgotten or deemed insignificant, which, in proper context, may prove vital to my case."

Bugliosi, Vincent; Curt Gentry. Helter Skelter: The True Story of the Manson Murders (p. 274). W. W. Norton & Company. Kindle Edition.

Danny DeCarlo: 

"I interviewed Danny numerous times, one session lasting nine hours, obtaining considerable information that hadn’t come out in previous interviews."

Bugliosi, Vincent; Curt Gentry. Helter Skelter: The True Story of the Manson Murders . W. W. Norton & Company. Kindle Edition.


"I talked to her from 1 to 4: 30 P.M. on the twenty-eighth. It was the first of many long interviews, a half dozen of them lasting six to nine hours, all of which took place at Sybil Brand, her attorney usually the only other person present."

Bugliosi, Vincent; Curt Gentry. Helter Skelter: The True Story of the Manson Murders . W. W. Norton & Company. Kindle Edition.

It is not surprising Bugliosi brags about this:

"The more times a witness tells his story, the more opportunities there are for discrepancies and contradictions, which the opposing side can then use for impeachment purposes. While some attorneys try to hold interviews and pre-trial statements to a minimum so as to avoid such problems, my attitude is the exact opposite. If a witness is lying, I want to know it before he ever takes the stand. In the more than fifty hours I spent interviewing Linda Kasabian, I found her, like any witness, unsure in some details, confused about others, but never once did I catch her even attempting to lie. Moreover, when she was unsure, she admitted it."

Bugliosi, Vincent; Curt Gentry. Helter Skelter: The True Story of the Manson Murders . W. W. Norton & Company. Kindle Edition.

He's wrong and in fact what he is doing is creating memories. He is both creating and filling in those missing pieces and when he's done the witness believes it.

Proving Bugliosi Contaminated the Well

The only way to prove Bugliosi had the impact on this trial that he may have had would be if we could actually get our hands on a taped version of his interviews from the first interview through the last.

Are there indications of 'modified' witness memories? I think there are.

Jerrold Friedman

Jerrold Friedman testified on direct examination that he received a call from Steven Parent at 11:45 p.m. But on cross examination he said this:

I said, "It's awful late, Steve."
He said, "Well, what time is it?"
And I had a clock right by my phone. I picked it up and looked at it and I said "l1:30.
He looked at a clock where he was and said “No its 11:25”.
And then I realized, yeah, I had my clock set five minutes fast so I would never be late for work.

 [Aside: So much for the fact this call was when Steven Parent set the clock.]

[Aside: By the way, this was actually a rare example of exceptional cross examination in this trial. Kanarek makes Friedman tell the events in a narrative, which causes him to change his original testimony.]  

In fairness, Friedman also said this during his cross examination.

A: And he said, "Well, I will be there in 15 or 20 minutes," and then he said, "No...better make it 40 minutes so I will be there by 12:30"

[Aside: This series of exchanges on cross examination likely led to a conversation between Bugliosi and Sam Bubrick at the Watson trial and a stipulation there that the call occurred at 11:50 p.m. Friedman did not testify there.]

To me this testimony shows Freidman having been ‘led’ to 11:45 sometime prior to his testimony and then recalling his actual memory through Kanarek’s examination technique.

Rudolf Weber

Weber was interviewed first by Bugliosi and Calkins at Weber’s house December 29, 1969 and
Calkins again later that afternoon. We know what he told Detective Calkins thanks to
RUDOLF WEBER: Well, to the best of my recollection…we went to bed around 9 o’clock which is our usual bed time –
SGT. ROBERT CALKINS: Who…Who is we? excuse me.
RUDOLF WEBER: My wife and I.
SGT. ROBERT CALKINS: Would you identify your wife, please?
RUDOLF WEBER: Her name in Mila(?)
SGT. ROBERT CALKINS: Alright, thank you.
RUDOLF WEBER: We, uh – ‘cause I have to be at work at 6 o’clock in the morning. So, about – it must’ve been about 1 o’clock, I heard the uh, the sound of, running water.

But during his trial testimony he gets more certain.
Q: Did anything unusual happen that night sir, after you went to bed?
A: Well, it was about 1:00 o’clock in the morning, that would be Saturday morning.
Q: How do you know it was 1:00.
A: Because I looked at the clock.

Notice how between December 29, 1969 the date of the interview and August 19, 1970 the date of his trial testimony when his memory should fade Weber's memory actually improved. To me this suggests he received a little help in filling in the missing pieces. I’d also point out that he doesn’t answer Bugliosi’s initial question but blurts out 1:00, a sign that something isn't right, but I’ve done that before.

Timothy Ireland

The First Tate Homicide Investigation report notes:

“Between 0100 and 0130 Mr. Ireland was awake, alert and watching the sleeping children. He heard a male voice from what seemed to him a long distance away to the north or northeast shout, 'Oh, God, no. Stop. Stop. Oh, God, no, don't'. Ireland said that the scream persisted for approximately 10 seconds. The male voice was clear and he did not notice an accent.”

At trial, presumably also after having spoken to someone at the DA‘s office in preparation for trial, Mr. Ireland changed his answer. He now places the scream at precisely 12:40 a.m. basing the change on what Mr. Sparks told him regarding the time.
Q: About what time was this?
A: Approximately 12:40 a.m.
Q: You say you told Sergeant Henderson that it was between 1:00 and 1:30 a.m.
A: Yes, sir.
Q: Now, what caused you to change your mind about the time.
A: When I talked again to Mr. Sparks, who was the man I first contacted about hearing the noise and asked if I could look around the camp, he said the time was 12:45, because he noticed it on his watch.
Q: You spoke to Sparks a second time after you spoke to Henderson?
A: Yes, sir, I spoke to Henderson and Lee and Richards.

Bugliosi did interview Ireland before the trial. But more importantly this illustrates how memories can be impacted by the memories of other witnesses. Here, the impact may be innocuous, but clearly Ireland’s actual memory of the events changed because of what Sparks said and by August 19, 1970 he believed it. In August 1969 he did not: witness conformity.

The Jakobson Interview

To really determine what Bugliosi did we would need to have tapes of all his interviews. We have the taped interview of Gregg Jakobson by Bugliosi on February 20, 1970. It can be found The problem is the interview is clearly not the first of Jakobson and not the first of Jacobson by Bugliosi. This is noted about 30 seconds into the interview. We can’t really track if Bugliosi's style had any impact because we don’t have the starting point. But from my review of that interview I can say this:

Bugliosi repeatedly throughout the interview uses two approaches that according to all those experts above are going to impact Jakobson’s memory. He asks leading questions. He also makes statements about what ‘others’ have already told him and asks Jakobson to confirm their viewpoint. Sometimes Jakobson does and sometimes he doesn’t. When he doesn’t did Bugliosi then go back to the other witness and interview him again? We don't know.

In my opinion this tape confirms that Bugliosi is doing precisely what he should not have done and he is likely affecting the witness’s memory. Unfortunately, we can’t see the impact because we don’t have the starting point to compare. This is one of three interviews Bugliosi conducted with Jakobsen and not the first.

[Aside: To me, Jakobson’s testimony is a lot of fun to read. Aside from the fact the ‘anti-Helter
Skelter wing’ never seem to actually explain him away, in my opinion, defense counsel are revealed as utterly inept. 

Jakobson gives quite a dissertation on Helter Skelter and is aided significantly by Fitzgerald’s robust cross examination which allows him to repeat much of it. His ‘real’ client wrote what on the fridge, again? Why let him bang the drum twice!

Hughes’ only possible defense, and only chance to avoid the death penalty for his actual client, is Manson’s control over Van Houten. Hughes does an exemplary job of proving the independence of the family members, especially the girls, and Manson’s lack of control. 

Shinn seems to want to ‘bond’ with Jakobson about trees and nature and Kanarek strives mightily to prove Manson had a right to have a grudge against Jakobson and Melcher for misleading him about that record deal through Melcher. Can you say secondary motive?

Several times Bugliosi objects and then says ‘objection withdrawn’ when he realizes the improper question actually helps his case. 

[Aside: What on earth could they be smiling about? They didn't get paid and they didn't win. And three of them threw their clients under the bus. IMO]

From the available evidence it appears that Bugliosi breaks three of the memory rules.

     1. He interviews the witness multiple times.

     2. He asks leading and suggestive questions in those interviews.

     3. He acts as a bridge between witnesses. He carries witness #1’s memories to witness #2. In other words, he facilitates witness conformity through his interview style.

Could these three factors, if applied to Kasabian over six interviews and 50 +/- hours, have impacted the accuracy of her testimony? Yes. In fact, the probability is very high.

One last point. This doesn’t mean Bugliosi is 'unethical' or 'evil' or 'broke the law'. Probably most of you have heard the Jakobson interview long before this post and never even noticed anything. Probably, neither did Bugliosi. It’s just his style and to him it was effective even if it was effective for all the wrong reasons. His quote above is revealing. He recognized that witness memory 'improved' through his methodology. He didn't recognize that it may have been doing so because he was providing the missing pieces. 

Now if he was consciously doing this, knowing he would effect their testimony…..that would be a different story. 

[Aside: Why is Bugliosi standing like that, facing the wall like he's in the corner? I mean the wall is too big to be an office door, isn't it?]

Pax Vobiscum