When Employees Confess, Sometimes Falsely
When
an AutoZone investigator approached Chris Polston, asking for his help
investigating a theft, Mr. Polston was happy to oblige.
He
was 20, had worked for AutoZone all through high school in Maryland,
and, after graduation, moved to take a job with the chain in Houston. He
and his wife had a child on the way, and he thought that AutoZone, the
car parts retailer, could be a place to build a career.
That morning in 2010, it all came undone.
According
to an account of the day given by Mr. Polston in interviews and in a
civil suit against AutoZone, Conrad Castillo, an AutoZone investigator,
sat him down in the store’s overstock room between a cinder-block wall
and a row of batteries. At first, he said, the investigator was
friendly, making small talk about the joys of fatherhood. “He was
talking to me as if we’d known each other for 10 years and we were at a
barbecue,” Mr. Polston said.
Then
Mr. Castillo’s tone changed, Mr. Polston said: Mr. Castillo asked him
to sign a statement that said he was not recording their talk. After Mr.
Polston signed it, Mr. Castillo accused him of having stolen auto
parts. When Mr. Polston denied the accusation, Mr. Castillo insisted. He
pointed to a DVD that he said contained proof that Mr. Polston had
stolen parts. Mr. Castillo, however, would not let Mr. Polston review
the DVD. (In his own testimony, Mr. Castillo, who did not respond to
requests for comment, denied showing Mr. Polston a DVD; he said he found
Mr. Polston deceptive and hostile.)
“It
just became a battle between me and him of me saying no and him saying
yes, me saying no, him saying yes,” Mr. Polston said. “I told him I had
to go; I have to get my wife to work. He said you’re not allowed to
leave. He said, if I confessed, he could promise I wouldn’t lose my job,
wouldn’t be charged, everything would be O.K.”
After
about two hours, Mr. Castillo said he was going to have to call the
authorities. Mr. Polston watched him go to a corner of the store and
make a call on his cellphone. When Mr. Castillo returned, he asked Mr.
Polston if he had anything to add.
Mr.
Polston imagined the police arresting him for a theft he had not
committed, and having to explain that to his family. “I had to say
something to make him shut up,” he said. “He was just drilling and
drilling and drilling. I said, look, only thing I didn’t pay for was a
candy bar and soda.”
Suddenly,
the interrogation was over. Mr. Castillo took Mr. Polston’s keys and
escorted him from the store. The next day, he was fired for theft of the
candy and soda. Stolen auto parts were not mentioned.
AutoZone
is the country’s largest auto-parts retailer, with about 5,000 stores
in the United States and Mexico and more than $9 billion in annual
sales. A public company with a share price that has more than tripled in
the last five years, it has more than 70,000 workers, and every year
some steal money or inventory.
Losses from employee theft cost American retailers $16 billion a year, according to the National Retail Security Survey.
That number is almost half the amount lost to shoplifting, and the
problem can be very hard to stop. “Once an employee is hired, they have
keys and access codes,” said Richard C. Hollinger,
a professor of criminology and law at the University of Florida, who
compiled the survey. “They’re very hard to deter and very hard to
catch.” Sometimes, he said, there is hard evidence, like a video, but
that is rare. “Mostly what you have is a cash register that’s a couple
hundred dollars short and a couple of people who might be suspects,” he
said.
And
what is to be done with those suspects? Increasingly over the last 20
years, retailers have turned to internal investigations, often using
investigators trained in the same interview and interrogation methods as
the police. Their job is to ferret out employee thieves and get them to
confess. “An admission makes the case much, much stronger,” Mr.
Hollinger said.
But
as retailers have used the same methods as the police, they have come
under criticism for some of the same unintended results: false
confessions.
Retailers
don’t think this is a big problem. “Is there a prevalence of false
confessions in retail? I’d have to say no,” said Rich Mellor, a recently
retired vice president for loss prevention at the National Retail Federation. Loss-prevention people, he said, know that coercion can cost them their jobs and lead to expensive lawsuits.
Because
retailers are reluctant to talk to the press, he added, the public
generally gets only the former employee’s side of the story, meaning
that a lot of cases that seem to be false confessions may not be.
AutoZone
did not reply to requests for comment, but lawsuits filed since 2000
have opened a window into how its loss-prevention department operates.
Sean Simpson and Charles Moore of the Simpson-Moore law firm in San Diego have represented 10 former AutoZone employees, including Mr. Polston, in lawsuits against the company.
The
first was filed in 2001 by Joaquin Robles, an AutoZone employee in San
Diego who had helped put store deposits into an armored truck. One day,
when the truck arrived at the bank, $820 was missing, and Octavio Jara, a
loss-prevention investigator, was sent to speak with him. According to
Mr. Robles’s subsequent testimony, Mr. Jara questioned him for nearly
three hours, accusing him of stealing the money and telling him that if
he would confess, he could keep his job. Otherwise, Mr. Jara would have
to call the police.
Eventually,
Mr. Robles signed a confession, apologizing for taking the money, which
he said he needed to pay family debts. In July 2000, AutoZone fired
him, recovering the stolen money from his last paycheck. Two weeks
later, the bank found the money. It had been misplaced, not stolen. This
did not, however, win Mr. Robles his job back.
Mr.
Robles sued AutoZone and Mr. Jara, contending that he had been falsely
imprisoned by being detained by his employers. Mr. Simpson and Mr. Moore
presented three former AutoZone employees who testified that Mr. Jara
had done the same thing to them. (Mr. Jara did not respond to repeated
requests for comment.) In a subsequent trial over punitive damages, the
lawyers turned to AutoZone’s internal loss-prevention manual to argue
that the tactics Mr. Jara had used on Mr. Robles simply followed company
policy.
The
manual, which the company stopped using after the Robles trial, laid
out a script for the standard interview. After taking the suspect to an
isolated place and making sure that the conversation wasn’t being
recorded, the investigator would make small talk to build rapport. Then
he or she would ask questions, like whether the suspect thought that a
theft had occurred. An employee who answered, “Yes, it was probably
stolen,” was considered more likely to be innocent than one who said,
“No, I’m sure it was a mistake.” An employee who slouched in a seat was
considered likely to be hiding something.
If
the employee was deemed guilty, the manual instructed the investigator
to get an admission. First, the investigator would tell the employee
that AutoZone knows that he or she is guilty, brushing aside any
denials. To make the case appear solid, the manual encouraged using
props like “bulging files” or videocassettes.
Next
came a process called minimization and rationalization, intended to
make it “easier for an AutoZoner to admit wrongdoing.” One common
example, which Mr. Robles said Mr. Jara used with him, was to
distinguish between need and greed. “Did you take the money to support
your family,” the manual encouraged investigators to ask, “or was it for
drugs?”
The
interrogation system prescribed in AutoZone’s former manual closely
follows the dominant methods used throughout the retail industry, as
well as by police departments across the country.
It
is based on the Reid Technique, which was invented in the 1930s by Fred
E. Inbau, a Northwestern University law professor, and John E. Reid, a
Chicago police officer and forensics tinkerer. In 1947, Mr. Reid went
into business as a private contractor, selling his services as a
professional investigator to police departments across the country and
teaching his method. In the early 1980s, two Reid investigators, Douglas
E. Wicklander and David E. Zulawski, formed a company to teach the
method to the private sector, where their classes are now the industry
standard for interview and interrogation training.
Today, Wicklander-Zulawski & Associates,
according to its website, provides training to many major American
retailers. Several clients that Wicklander lists, including Walmart,
United Parcel Service and Costco, are defending against false-confession
litigation. (Wicklander-Zulawski, which did not respond to requests for
comment, is not a defendant in any of the suits, and it could not be
determined what services the company provided these clients or when they
were provided.) In addition, class-action lawsuits were filed recently
against Home Depot and Macy’s, accusing them of using their
loss-prevention departments to coerce confessions from customers
suspected of shoplifting.
It’s hard to know how widespread false confessions are. In retailing, “the dirty little secret is that there are no data,” said Saul Kassin,
a psychologist at the John Jay College of Criminal Justice and a
specialist in the issue. “As far as I can tell, normal people who sign
confessions to thefts they didn’t commit tend to be embarrassed, don’t
want to come forward. Cases are more likely to settle quietly.”
Almost
since the Reid method was invented, psychologists and lawyers have
feared that, if misused, it could prompt innocent people to confess.
In
1966, the Supreme Court, looking at an earlier version of the Reid
manual in Miranda v. Arizona, concluded that police interrogations
existed only “to subjugate the individual to the will of his examiner.”
Without legal protections, the court ruled, no statement could be viewed
as made by free choice. These protections, which would become known as
the Miranda rights, require the police to remind suspects that they have
the right to remain silent and to have a lawyer present.
Despite
the Miranda rights, evidence has mounted in the last 20 years that
false confessions are more common than one might expect. And the Miranda
rights apply only to criminal investigations, not to internal corporate
investigations.
When
deposed for the Robles trial, Mr. Jara testified that he had obtained
admissions in 98 percent of his interviews. According to Dr. Kassin, if
Mr. Jara’s numbers are accurate, it is all but certain that he has
obtained “a lot of false confessions.” Mr. Jara also testified that he
had followed AutoZone policy, which prohibited him from making threats
or promises. “You want to gather the facts,” he said. “If they admit to
what they’ve done, good. If they don’t, they don’t.”
At
trial in San Diego County Superior Court, AutoZone did not contend that
Mr. Robles’s confession was true. Instead, the company’s lawyer
asserted that Mr. Robles could have left the interview whenever he
wanted: Mr. Jara had interviewed him at work, with the door open.
Following
standard practice, however, Mr. Robles was kept on the payroll clock
during his interview. “How free really was he to get up and leave the
workplace, on a workday, during his own shift, without being fired?”
asked Dr. Kassin, who testified as an expert at Mr. Robles’s trial. “He
was for all practical purposes in custody.”
The
jurors agreed. In 2006, they found that AutoZone and Mr. Jara had
falsely imprisoned Mr. Robles and used fraud to make him confess. They
awarded him $7.5 million; AutoZone appealed, and the damages were
reduced to less than $700,000.
After
that, Mr. Simpson and Mr. Moore took more cases representing former
AutoZone employees who contended that they had been forced into false
confessions. Three ended in judgments in the plaintiff’s favor, although
AutoZone appealed all of them; two of the appeals are pending but a
California appellate court upheld the other judgment against AutoZone
last month. In another case, Gomez et al. v. AutoZone, a San Diego
County jury found that Mr. Jara had used fraud to get confessions from
three employees, but the jury did not award damages. The lawyers have
three additional suits in progress against AutoZone, including Mr.
Polston’s.
In
a 2008 deposition for Gomez v. AutoZone, Elizabeth Rabun, head of
AutoZone’s loss-prevention office, testified that her department
conducted 2,000 to 3,000 loss-prevention interviews a year. Every loss
is investigated, she testified, and virtually every investigation
involves an interview. While employees who confess are normally fired,
she said the company does not threaten to call the police. “We do not
use coercion,” she said.
In
a 2013 deposition for the Polston suit, Ms. Rabun testified that the
false confessions had prompted AutoZone to make changes. For example,
after the Robles verdict, the company stopped using its manual and hired
Wicklander-Zulawski to train investigators directly. She testified,
however, that the company continues to interview workers while they are
clocked in and without a lawyer present. She also testified that
AutoZone still forbids the taping of interviews, citing a concern that
the tapes could be “manipulated.”
While
recording of interrogations is now mandatory for police interrogators
in 17 states and the District of Columbia, the first question on
AutoZone’s question-and-answer form, filled out by every loss-prevention
investigator at the start of an interview, is this: “Do you understand
recording this interview is a violation of AutoZone policy?”
Mr.
Moore said that means that at AutoZone, “It’s still the Wild West.”
Part of the problem, he said, is that once the investigator gets a
confession, the investigation generally stops.
In
Mr. Polston’s case, the store manager later testified that he had given
Mr. Polston the candy bar and soda he was fired for stealing. But Mr.
Castillo testified that he never talked to the manager.
Mr.
Simpson asked Ms. Rabun in a deposition why Mr. Polston had been
interviewed at all — in Texas, workers can be fired without cause, which
means that if AutoZone suspected Mr. Polston of theft, it could have
fired him without an interview.
“Well,”
she said, “I think part of our obligation as an employer is to bring
the allegation to the individual that is maybe being accused of
wrongdoing and give them a chance to give their side of the story.”
Mr.
Moore offers a darker motive, suggesting that AutoZone managers have at
times used loss prevention to get confessions from employees it wants
to fire for other reasons. In 2010, Mr. Moore and Lawrance A. Bohm,
a Sacramento lawyer, won a suit on behalf of Travis Kell, who, after
reporting his manager to human resources, accusing the manager of making
racist remarks, received a visit from Mr. Jara. According to the
lawsuit, the investigator pressed Mr. Kell to admit to falsifying an
internal audit. After Mr. Kell admitted only to rushing the audit, he
was fired for what AutoZone termed falsification of documents.
At
trial, Mr. Moore and Mr. Bohm presented evidence that another
loss-prevention manager had falsified the audit to frame Mr. Kell. The
jury awarded Mr. Kell $1.4 million in punitive damages. The verdict was
upheld, with reduced damages, in California appellate court last month.
Mr.
Polston said that after he confessed, falsely, to stealing the candy
bar and soda, he went to his car and cried. The worst part, he said, was
the sense of betrayal. “It changed my whole perspective about
everything,” he said. “I was raised to give trust to people until they
broke it. But I’m not going to raise my kids that way. I don’t want them
to be blindsided like I was.”
His
lawsuit is scheduled to go to trial in July in Harris County District
Court in Houston, where he is seeking $300,000 to $400,000 in
compensatory and punitive damages. But he says he is not concerned about
winning money from AutoZone. He has a good job now, doing collision
repair for BMW. What he wants is more subtle, something that he says he
was denied by his interrogator.
“This
time I’m going to get to say how I feel, without some loss-prevention
person talking down to me and belittling me,” he said. “I’m going to get
to say my side of the story.”
A version of this article appears in print on March 9, 2014, on page BU1 of the New York edition with the headline: When Employees Confess, Sometimes Falsely
http://www.nytimes.com/2014/03/09/business/when-employees-confess-sometimes-falsely.html?ref=business
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