Monday, August 31, 2009

Blowing smoke and airbrushing warts

Sometimes being right isn't all that satisfying.

I said the other day, when talking about the likely innocent Cameron Todd Willingham, that despite no evidence whatsover that the fire that killed Willingham's children was an arson, the smart money was on the government denying that the news made a difference. Texas would blow smoke and airbrush the warts. Turns out I was right. As S noted over at Preaching to the Choir, one of the prosecutors in the case, John Jackson, has now published an op ed in the Corsicana Daily Sun titled "Willingham Guilt Never in Doubt."

Judge Jackson's argument (former prosecutor Jackson is now the Honorable Judge Jacks, which is what happens when you convict likely innocent people - heck, anyone can convict the guilty) is curious. He acknowledges that the arson investigation was "
undeniably flawed" (total bull is more like it, but the man is a judge, after all, and has to maintain some decorum). But that's irrelevant. You see, even without any evidence that Willingham set the fire, he did all these other things:
  • He cursed both when refusing to take a polygraph and when declining the opportunity to plead guilty in exchange for a life sentence.
  • His burns were superficial, "suggesting" that they were self-inflicted.
  • He had a history of violence.
  • He had previously tried to kill his children by beating his wife while she was pregnant.
  • He told the corpse of one of the children she shouldn't have died, and the arson evidence shows that he set the fire in the room of the other children.
  • He didn't inhale smoke, though he claimed to have tried to rescue the children.
  • A refrigerator blocked the back door making escape from the house impossible.
Let's review. He's a nasty sumbitch. Although there's no evidence that the fire was set, it was set in the room of the twins. He ensured that everyone would die, but didn't mean for everyone to die.

Let's review the actual evidence against him: He's a nasty sumbitch. Well, there's proof beyond a reasonable doubt. I feel much better now. Hope you do too.

As I said the other day, I don't know whether Willingham set a fire and killed his kids or not. Neither does anyone else. What I know is that there's no particular evidence that he did.

Psychologists and cognitive scientists talk about what's called "confirmation bias." The on-line Psychology Dictionary explains the term.
Confirmation bias can be summarized as a natural human tendency to search for information that supports our hypotheses.
Basically, it means you tend to look for and find evidence that makes you happy and to downplay and ignore and overlook the evidence that shows you're wrong. Everyone does it. It's human nature and nothing to be ashamed of. But it is something to be aware of - and wary of.

Scientists, analysts of every stripe, if they're to do their jobs objectively, have to guard against confirmation bias. It's why tests of new drugs should be done as double blind studies, for instance, so that neither the physicians nor their patients know who is getting the real drug and who is getting the placebo. (The same sorts of protections should be in place for eyewitness identifications and even for DNA testing.)

So you're Jackson, and you're responsible, at least in large part, for the fact that Willingham was murdered by the State of Texas. You want, you need, to believe that the killing was no enormity but was fair and just, legally and factually appropriate. Of course you do. So do the jurors, the governor, the actual killers. None of them can be comfortable with the idea of a mistake. All seek the evidence of guilt and downplay the evidence of innocence.

It's what we'd expect even if they weren't politicians.

But, of course, the prosecutor (now judge) and the governor, and all the other judges along the way - they are politicians.

Years ago, when I'd been practicing criminal defense for just a few years, I was reading the morning paper when I saw that a former client of mine, one I'd gotten out of prison, had been arrested and charged with aggravated murder and death specifications. Was I somehow responsible? How did I feel about that? Could I keep doing criminal law if doing it well meant that I'd be responsible - even just a little responsible - for murder?

I had a tough day dealing with those questions. I came out of it understanding that I am a criminal defense lawyer and proud to be one. Most of us who do this work for long, and do it seriously, will have that day or one like it. Some respond by becomming prosecutors. Some prosecutors, when they acknowledge having convicted an innocent person (and they'll all do it, given enough chances) respond by becomming defense attorneys.

But some prosecutors who've convicted the innocent, and some defense attorneys who've gotten the guilty off only to discover that they've done something awful, stick to it. We are what we are, and we can feel good about it. But really, we can only feel good if we admit the frailties of human nature and the ambiguity of life and the uncertainty of all things we believe but cannot know.

A couple of months ago, in a different death penalty context, I wrote this:
I'd suggest a quick reminder of what Oliver Cromwell said to the General Assembly of the Church of Scotland, what the great lawyer Irving Younger, in the first issue of the Georgetown Journal of Legal Ethics, described as "the best guide to thinking about anything":
I beseech you, in the bowels of Christ, think it possible you may be mistaken.
Good advice then. Good advice now.

Like I say, I don't know whether Willingham is factually guilty. I know that there's no good evidence of his guilt. But Judge Jackson, in his righteous certainty, still blows smoke and airbrushes warts.

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