A man’s conviction for double murder was vacated when concerns were raised about the relationship between the judge who presided over his case and the murder detective involved in investigating the murders. Now, an appeals court has ruled that a false confession expert, who was not allowed to testify at the first trial, will be allowed to testify at the new trial.
The Underlying Case
In 2008, Richard and Brenda Kowalski were found murdered in their home. In separate interviews with the police, Richard’s brother, Jerome Kowalski, both confessed to and denied murdering his brother and sister-in-law.
At trial, Kowalski’s attorney, Wally Piszczatowski, attempted to call a false confession expert to testify. The American Psychological Association (APA) filed an amicus brief arguing there was an empirical evidence base for admission of false witness expert testimony based on review of the scientific research on false confessions.
Judge Theresa Brennan denied this request. Kowalski was convicted in 2013 and sentenced to life. Brennan’s decision was affirmed on appeal.
Vacated Conviction and New Trial
In January 2019, Michigan Supreme Court officials discovered that Judge Brennan, who had presided over Kowalski’s case, had failed to disclose a previous relationship with Michigan State Police Sgt. Sean Furlong, who had acted as lead homicide investigator on the Kowalski case. Kowalski’s conviction was vacated and he was granted a new trial. Judge Brennan was removed from the bench by the Michigan Supreme Court and charged with three felonies: perjury, tampering with evidence, and misconduct in office in connection with her failure to disclose her relationship.
At Kowalski’s new trial, Judge Matthew Stewart of Shiawassee County Circuit Court ruled that expert witness Richard Ofshe could testify. Ofshe, a Sociology Professor Emeritus at University of California in Berkeley, is an internationally recognized expert on influence interrogation. His work on coercion in interviews, confessions, groups and interrogations have made him a sought-after specialist. Ofshe also serves on the advisory board for the False Memory Syndrome Foundation.
Judge Stewart ruled that Ofshe’s testimony would be limited to generalities on false confessions, with no case-specific testimony. Mark Gatesman and Heather Nalley, Kowalski’s attorneys, appealed the decision, as did the prosecution. Kowalski’s attorneys argued for unlimited testimony and the prosecution argued that no false witness expert testimony be allowed at all.
New Court of Appeals Ruling
The Michigan Court of Appeals agreed with Judge Stewart’s decision. It ruled, “The trial court did not abuse its discretion by finding that Dr. Ofshe was qualified to give expert testimony on police interrogation techniques and that his methodology was sufficiently reliable to admit his testimony.”
Reacting to the decision, Kowalski’s attorney Nalley stated, “We are thankful that the court ruled Dr. Ofshe will be allowed to testify as to how interrogation techniques such as the ones used in this case can be coercive.”
Kowalski had been awaiting a pending new trial since January of 2019. If convicted as originally charged, he faces a sentence of up to life in prison without the possibility of parole.