Convicting Them Anyway

Failed Evidence: Why Law Enforcement Resists Science is the latest book by David A. Harris.

David is (full disclosure here) a friend.  He's also the Distinguished Faculty Scholar and Associate Dean for Research and Professor of Law, blah, blah, blah at the University of Pittsburgh (which is where I went to college several decades before I met him but not where I went to law school which is also not where I met him - this digression is going on too long and to little point).  David also wrote Profiles in Injustice: Why Racial Profiling Cannot Work (a really terrific and important book that remains timely well over a decade after it was first published) and the good but less satisfying (sorry, David) Good Cops: The Case for Preventive Policing.

Failed Evidence is another in a series of books about the too-common failures of cops and lab techs and prosecutors, on how they screw up and go after the wrong people.  Others include Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent (reviewed here), Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent (reviewed here), and Brandon Garrett's Convicting the Innocent: Where Criminal Prosecutions Go Wrong (which for some reason I never got around to reviewing).

I said that these books are about how those folks "screw up." Although there's a nod to it here and there, none of the books is concerned with actual misconduct.  They don't talk about framing innocent people, about the rush to judgment, about hiding (or fabricating) evidence, about the forensic pathologists who don't even bother to do autopsies but claim they did and testify that they revealed whatever the prosecutors want them to say.  They aren't concerned with testilying or violations of Miranda rights or the Fourth Amendment protections against searches and seizures- or with the evisceration of those rights by the courts.

They are, instead, about how with the best intentions in the world, things just go wrong.  Cops believe they can tell who's lying because they have this special spidey sense that lets them know; everyone believes that fingerprints are infallible because gosh they are; and DNA is great for convicting the guilty but close to worthless for exonerating anyone already convicted 'cause that would mean we fucked up - which we don't do.

The authors know better (as does anyone with even a slightly open mind who pays any attention). Each book has its strengths and weaknesses.  The particular strength of Failed Evidence comes from its combination of lucidity and focus.  

David takes on false confessions, troubling eyewitness identification, and the forensic vagaries of trained lookers (fingerprints, tool marks, bite marks, and the like).  He explains how it is that innocent people are led by police to confess to crimes they didn't commit.  He explores how study after study demonstrates that traditional photo array and lineup procedures lead to faulty identifications.  He talks about how there's simply no actual evidence that fingerprint or toolmark identifications are accurate and how bite mark evidence is notoriously unreliable.  And then he explains how it is that police and prosecutors don't believe any of that stuff and don't want to do anything to reduce the error rates.

It's not that they don't care about convicting the innocent.  It's just that . . . .  Hell read the book.  David does a better job of explaining how the most honest and well-intentioned oppose use of best-practices better than any other book I know of.

The weakness?  He's too trusting.  They care, they really care.  But they just can't.  Except it ain't so. He points to a few places where advances have been made and says, 

See, you can make it happen in your city/state too.

But the examples show just the opposite.  The examples he discusses: Dallas and Houston prosecutors, and New Jersey identification procedures, aren't the results of people working the system for significant change.  They're the actions of, in each case, one official who happened to be committed to something. That's not why they got in office.  It's just that they did.  And they acted.

But you can't expect widespread reform based on the assumption that a benevolent despot will be coming to every neighborhood.  And there's no realistic way to insure that any despots you happen to get will be benevolent.  The counter-example is Ohio where the legislature actually enacted some significant reforms in eyewitness identification and interrogation procedures.  The downside is that they have no teeth.  The law says that they must be followed except when they aren't.  Time will tell, I suppose, whether they truly prove to be more than cosmetic.

Beyond that, too little.  The particular list of incremental reforms he says must be enacted - good idea, but again, no real program for how to do it.  Consider the insistence that the courts and the defense bar must "Make Daubert meaningful in criminal cases."  Daubert is the case that sets out the rule that courts should exclude junk science and faux expertise from the courtroom.  He's right that they don't in criminal cases.  And he's right that defense counsel don't insist on it often enough.  But beyond urging, how to make it happen?  How to get judges actually to exclude fingerprint or toolmark or bitemark evidence even though none of those things have any validation studies behind them? (Harris actually and apparently just on faith believes in fingerprints and toolmarks, it seems, though he thinks they need more study and the so-called experts shouldn't overstate their findings.)  They must, he says.  But that's not a program.

And there's so much more.  Snitch testimony?  He doesn't take it on.  Lab techs who don't bother to actually do the testing but write up and testify to the results anyway?  He doesn't take it on.  Cops who routinely violate the Fourth Amendment? Testilying?  Courts that let them get away with it?  He doesn't take it on.  And god help us, overcriminalization?  Not touched.

OK, that's not an altogether fair complaint.  Failed Evidence is about what it is.  Hard to complain that it isn't also about something else.  Yet, what it addresses is the tip of an iceberg.  

The innocent are convicted of all sorts of crimes not based on any flawed evidence at all but based on threats of decades in prison if they don't just enter pleas.  They're convicted because they can't afford bond and have spent more time in custody waiting for trial than their possible sentence.  They're convicted because they're pigmentation is wrong and their wallets insufficient.  They're convicted because prosecutors and cops lie and cheat.  They're convicted because defense counsel are overworked underpaid, and too often incompetent.  They're convicted because judges run for election or hope for better appointments and besides, they're prosecutors themselves only they wear robes. They're convicted because jurors believe what they want and because "beyond a reasonable doubt" too often translates into "where there's smoke there's fire."

They're convicted, that is, because the system is fucked.

The remarkable thing is that it isn't worse.

But I digress from the main point.  Which is that Failed Evidence is really good and David Harris makes a significant contribution to the literature of how the innocent get convicted of crimes and how it is that cops and prosecutors don't do more to prevent that.