By Jon King/

A ruling in a Genesee County case might have a significant impact in the upcoming re-trial of Jerome Kowalski.

In 2013, Kowalski was convicted and sentenced to life in prison for the double homicide of his brother and sister-in-law in their Oceola Township home in 2008. Last year, that conviction was vacated following the revelation that former district court judge Theresa Brennan, who presided over the case, was having an inappropriate relationship with the lead prosecution witness, former State Police Detective Sean Furlong. One of the issues that Kowalski’s defense had with the first trial was Brennan’s refusal to allow an expert witness on false confessions. Kowalski originally confessed to the murders, but then almost immediately recanted it, saying he had been in the throes of alcohol withdrawal at the time and that he had succumbed to pressure tactics by Furlong. Kowalski’s defense is hoping that for the retrial, Dr. Richard Ofshe, an expert in police interrogations, will finally be allowed to testify. Prosecutors have cast doubt on the validity of Ofshe’s expertise and have sought to keep him off the stand.

Shiawassee County Circuit Court Judge Matthew Stewart, who is presiding over the retrial, heard arguments for and against Ofshe’s qualifications as a witness in January, but has yet to issue a ruling. However, an August 10th ruling by Genesee County Circuit Court Judge David Newblatt in an unrelated case may tip things towards the defense position. In the ruling, Judge Newblatt determined that there was “sufficient foundation” to allow Dr. Ofshe to testify about police tactics that are known to increase the likelihood of a false confession. However, he will not be allowed to specifically discuss the confession in that case, which involved a former Genesee County Sheriff’s deputy, charged with sexually assaulting a female in his custody.

At January’s hearing in front of Judge Stewart, Ofshe explained his area of expertise and experience in reviewing more than 1,500 interrogations over his career. He said he evaluates the tactics and maneuvers that the interrogator uses to move the suspect, who almost invariably starts at the position, “I didn’t do this,” and ends up at the end of an interrogation with some form of “I did it” statement. Ofshe, insisted, however, that he does not offer, nor ever has testified to, an opinion as to whether or not a suspect’s confession is false or true, but rather equips the jury with information they often don’t have to make that decision for themselves.

Kowalski’s defense contends that the information Dr. Ofshe will provide would educate the jury on police tactics used to interrogate subjects as well as the training they undergo to try and induce a confession. But prosecutors expressed doubt about Ofshe’s ability to stay neutral. Asst. Livingston County Prosecutor Michael Taylor found verbiage on a court document in which Ofshe said false confessions happened “regularly and with significant frequency” which Taylor said would be misleading in that those words would steer jurors to believe they happen all the time. Ofshe argued it was a matter of perspective, and that 10-15% of the time could be considered significant, although he admitted that no one could know exactly how often false confessions occur. The prosecution also pointed to several cases of Ofshe’s testimony being dismissed in other trials and later concluded in a brief to the judge that, “there is simply not enough evidence to declare that any interrogation technique is responsible for false confessions and that any claim to the contrary is not based on anything more than the researcher’s own activism.”

It was noted at the January hearing, however, that Dr. Ofshe’s testimony has been accepted in roughly 400 state, federal, and military cases in 39 states. Following the ruling in the Genesee County case, Michigan is now on that list. No further dates have been set in the Kowalski case, including a ruling from Judge Stewart on whether Ofshe should be allowed to testify.