Sunday, November 12, 2017

What? You Thought the System Got It Right?

Danny Brown did not kill Bobbie Russell.  

That's settled in the minds of just about everyone except her son, whose memory of his mother's murder is false, and the Lucas County Prosecutor who agreed to cut Danny loose after he spent 19 years in prison and dismiss the case against him but who still believes him guilty and would love to charge him and convict him again.

Despite the DNA that pretty conclusively indicates that Bobbie Russell was killed (and, not incidentally, raped) by Sherman Preston.  Alone.

Cameron Todd Willingham didn't set the fire that killed his kids.  Which Rick Perry basically knew when he signed off of Willingham's execution.  

Joe D'Ambrosio did not kill Anthony Klann, though he did spend 22 years on death row before he was exonerated.  And the state?  Well, you know the story.

And Ricky Jackson.  We'll get  back to him.

There are, of course, others.  The list of the wrongfully convicted isn't just a list of folks who didn't kill.  There are the ones who didn't rape, who didn't rob, who didn't burglarize, who didn't bear false witness or pray to graven images or . . . .  (OK, maybe the graven images thing.)

If you've been paying attention, you know that's true.  (As you do if you've been reading this blog, I should add in a self-glorifying moment.)  The question, of course, is how it happens.  And the corollary is what can be done about it.

Enter Mark Godsey, Daniel P. and Judith L. Carmichael Professor of Law and Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law.  And now author of Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.

Mark was at one time, as the subtitle says, a prosecutor.  Not just any old kind.  He was one of that special breed, an Assistant United States Attorney in New York.  That's big stuff, and he was, as he tells us, quite full of himself and the honor and glory and nobility of his job.  Rooting out bad guys and locking 'em up.

He tells us about how he'd brainstorm with his fellow-AUSA's to as they'd cook up cockamamie theories to explain away evidence (say, coerced confessions) that was wholly inconsistent with the guilt of those they so righteously prosecuted.

He tells us that he, well, he didn't exactly cheat.  But he didn't go out of his way to challenge the potential bullshit that was presented to him.  And he didn't notice - didn't let himself notice, really, that a whole lot of what they did in building cases and selling juries on them was grounded in a set of convictions about infallibility that bore no relationship to demonstrable fact.

This isn't exactly news, though it was to Mark until he found himself coerced into running the Kentucky Innocence Project for a year.  And oops.  

The first chapter of his book is called "Eye Opener," and it's where he describes that epiphany.

As for the rest, he takes on the usual suspects.

  • Confirmation bias
  • Faulty memory
  • Coerced confessions
  • Inaccurate eyewitness identification
  • Bullshit forensics
  • Tunnel Vision

All this, he explains, leads to factually innocent folk getting convicted of crime despite the best efforts of everyone to do the right thing.

The academics have shown this, of course.  They've done the studies that demonstrate how false memories can be created, that eyewitness identification isn't particularly reliable, that nobody - not cops, not prosecutors, and certainly not judges or jurors - is particularly good at figuring out when someone is telling the truth or when someone is lying. 

And then there's the explanation.  That's the confirmation bias and the tunnel vision.  It's the group-think of police and prosecutors.  It's built into the human condition.  There's science for that, too.

And the studies, the science, all of it, is backed (often fronted) with stories of exonerations fought, exonerations won, and exonerations still pending resolution.  Here's a case, he says.  Look how the ID was bad!  Look at how the cops coerced the confession!  Look at how they implanted a memory or just got the witness to correct the memory to comport with the evidence! 

It's storytelling not because a story proves the point but because it illustrates the point.  And amid the tens of stories he tells, there's particular focus on a few.  

Most frequently, it's the case of Steve Avery from Making a Murderer.  It makes sense.  Many readers will know the story already.  And it serves to illustrate many of his points.  Clarence Elkins and Dean Gillespie get special treatment too because, well, Mark and the Ohio Innocence Project freed them.  

None of this is particularly new.  Along with untold numbers of books and articles addressing individual horror stories of the innocent convicted and sometimes (but not always) exonerated, academics and others have been churning out books on this with regularity.  In the last few years alone there've been Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent, David Harris's Failed Evidence: Why Law Enforcement Resists Science.  And those are just a few I've reviewed here.

The perspectives vary.  They don't all tell the same stories.  But they all make the same points.  The system is flawed.  And while it can't be perfected, there are things that can be done to improve it.  Not surprisingly, they all recommend essentially the same things.

  • Videotape confessions
  • Abandon the Reid technique of interrogation
  • Sequential, double-blind administered lineups with immediate declaration of degree of certainty
  • Remove crime labs from the control of police and prosecutors

All much easier said than done.  Because - and here's the point of Mark's anecdotes - the participants in the system simply don't recognize that there's a problem. 

See, and here's the weakness - of Mark's book and, frankly, the others.  They are, all of them, too trusting.  Oh, sure, there are a few of those so-called "bad apples."  But really, police and prosecutors and judges all really do want to the right thing.  If you could just make them see . . . .

Which is much of why Blind Injustice begins and ends with Ricky Jackson, another of Mark's clients at the Ohio Innocence Project.

Jackson's story is powerful.  In 1975, he, Wiley Bridgeman, and Kwame Ajamu were convicted of murder in Cleveland.  Sent to death row.  Convicted based on a lie.  A 12-year-old kid coerced by the cops into fingering the three of them.  Freed after 39 years when the kid recanted.  
Because the cops got the kid to lie.

What's striking, though, is not the lie.  Not the wrongful conviction.  Not even the eventual exoneration.  See, they had the hearing.  The kid, now in his 40s, testified about how he was coerced.  How he lied.  How the lie ruined his life.  And how, finally, he came to tell the truth.  When all the testimony was over, they all broke for lunch.  Closing arguments, the judge said, after we eat.
     When we returned to the courtroom at the predetermined time, the prosecutors and the judge were nowhere to be seen.  After thrty more minutes passed, there was still no sign of the prosecutors or the judge.  We sad in the courtroom and waited, confused and exceedingly nervous.
     After about forty-five minutes of waiting, the courtroom doors swung open and Mary and her team of prosecutors entered the courtroom.  With them was the elected prosecutor -- the head of the office.  They entered the courtroom at the same time that the judge entered through his private door behind the bench, as if their entrances had been orchestrated.  The prosecutors walked straight up to the bench and said something to the effect of "We agree that Ricky Jackson is innocent and that a terrible injustice has occurred in this case.  We are dismissing all the charges and agreeing that he may be set free."
     In all my years of doing postconviction innocence work, I have never been so shocked.
OK, as Mark says, that doesn't happen.  Prosecutors typically fight exonerations tooth and nail.  But, the very oddity of what happened in Ricky Jackson's case - put up against all the stories of prosecutors who never concede - gives the lie to the assurance that prosecutors and cops and judges are all acting with good faith something like 99% of the time.

Oh, I'm not saying that they set out to frame people, to convict those they know are factually innocent.  It happens, but the frequency of that is I imagine vanishingly small.  Rather, they blind themselves and then they cheat - and they know damn well that they're blinding themselves and cheating - because that's how they make squishy cases better and good cases great. 

There's a reason we have the word testilying for what cops routinely do on the witness stand.  And the larger truth (one Mark mentions almost in passing) is that we let them get away with it.  Police aren't punished even on the rare occasions they're caught cheating.  Partly that's because they have qualified immunity.  Partly it's because they have powerful unions.  Prosecutors don't suffer for their misconduct.  Partly that's because they have absolute immunity.*  And because the legal disciplinary folks give them a pass.  Why?  Mostly it's because we - the rest of us- just don't care.  They're catching bad guys, after all.

Remember, the theory of our system is innocent unless proved guilty.  If we mean it, we have to take seriously the idea that the proof should be reliable.

Blind Injustice is worth the read.  Give a copy to your favorite prosecutor.  And maybe to your neighbor.

*Mark says that they, like cops, have qualified immunity.  He knows better.

My thanks to Mark and the University of California Press for providing me with a copy for this review.

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