Arguments for and against a potential expert witness in the upcoming re-trial of Jerome Kowalski were heard in Livingston County Court Tuesday.

In 2013, Jerome Kowalski was convicted and sentenced to life in prison for the double murders of his brother and sister-in-law. 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. One of the issues that the Kowalski family had within the first trial, was Brennan’s dis-allowance of an expert witness on false confessions. According to Kowalski’s son, Jared, his father suffered from alcoholism and withdrawls, and upon threats to bring his family in for interrogation, confessed to the crimes. For the re-trial, Kowalski’s defense is hoping to have Dr. Richard Ofshe, an expert in police interrogations, testify.

Shiawassee County Circuit Court Judge Matthew Stewart, who is presiding over the new case, oversaw a Daubert hearing Tuesday, considering arguments for and against Ofshe’s qualifications as a witness. Ofshe explained his area of expertise and experience in reviewing, he says, 1,500 interrogations over his career. He said what he evaluates in the interrogation, are 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 says he does not offer, nor ever has testified opinion as to believing 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. He says the Reid technique that nearly all interrogators use, has been proven to draw false confessions, particularly when DNA is available to be studied, and that part of his job is to educate the jurors on the technique.

Prosecutors doubted Ofshe’s ability to stay neutral. Asst. Prosecutor Michael Taylor found verbage on a court document with Ofshe believing that false confessions happened “regularly and with significant frequency” 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. The prosecution also pointed to several cases of Ofhse’s testimony being dismissed in other trials

Judge Stewart confirmed with Ofshe that his testimony has been accepted in roughly 400 state, federal, and military cases in 39 states, including one last week in Tennessee. Prosecutors and Kowalski’s defense will submit written closing arguments, with Judge Stewart issuing his decision at a later date. The re-trial is tentatively scheduled to begin on June 15th. (MK)