Two posts from the practical blawgosphere over the weekend craft an important paradigm for understanding what criminal defendants (not to mention their lawyers) are up against.  From the Texas Tornado, Houston criminal defense lawyer Mark Bennett, at Defending People, comes the story of "RR" (name withheld so that an innocent man isn't perpetually associated with this crime), cleared of a sexual assault on a child by a DNA kit that sat untouched since 2002.

On the left coast, philanthropist and Fresno criminal defense lawyer Rick Horowitz at Probable Cause posts about institutionalized group think, and its impact on the ability of any individual prosecutor to break away from mold when an individualized review of evidence in a particular case warrants.  As Rick says, a prosecutor's duty is to do justice, but the institutionalized practice is to convict.

As much as these two posts address very different circumstances, they are both part of a whole that exists throughout the criminal justice system.  Some lawyers, like Bennett and Horowitz fight it.  Others just play along, as though opposition is futile.  The ones who have either failed to recognize the problem, or have simply given up, are as much a part of the problem as anyone.

Bennett's post notes that the impact of confirmation bias, propounding Bennett's Third Rule of Investigation:

Enough investigation will tend to support your theory.

Bennett credits Murphy for the rule.  I credit Bennett, because he is too self-effacing and needs to learn to take credit for the things he creates.  The police investigate to prove their perp guilty.  Once that's done, they stop investigating.  Any more and they could spoil a good thing.  In the "RR" case, it strikes one as amazing that a DNA sample could sit untouched for 6 years while a man was convicted for such a heinous crime.  Somebody decided that DNA was one step too far.

But then, there was a defense lawyer involved on "RR"s behalf as well.  What happened there?  It appears that "RR" had a significant facial disfiguration that went unmentioned in the description of the perpetrator.  Perhaps this led the defense to believe that it had a way to beat the case, and prevented further digging that might have unearthed the untested DNA. 

From the Houston Chronicle, the question was posed how the DNA could go untested:

"That is a really good question," Assistant District Attorney Roe Wilson said. "It should have been tested. The defense attorney also could have requested testing."

Rachell's trial attorney, Ron Hayes, and his current attorney, Deborah Summers, both have said they were unaware of physical evidence that could have been tested years ago.

It's possible, if not likely, that no one disclosed the existence of this evidence prior to trial, begging the question of how the defense lawyer could request testing when he was unaware that there was anything to be tested.  The prosecution's response, if that's the case, is disingenuous.  But then, there remains the question of whether the defense passively accepted the absence of information or whether he tried to investigate. 

This is where Rick's group-think, acceptance of the routine, lack of individualized consideration, comes into play.  The same group-think that impairs individualized review, investigation and consideration by prosecutors frequently does the same thing with defense lawyers.  Failure to recognize, or admit, that this happens is no less dangerous or wrong.  As the prosecutor in the "RR" case noted, the defense lawyer could have done something about it as well.

Bennett clearly recognized that the same problems that hamper the legitimacy of police investigations can similarly apply to the defense.

We all have preconceptions and prejudices formed by our life experiences. Any of us might unknowingly suffer from confirmation bias that helps us maintain these preconceptions, even if they’re wrong. A prosecutor might rightfully assume that a person accused of a crime committed that crime because — let’s face it — the cops usually get things right, and in the small percentage of cases in which the wrong guy is arrested there’s a defense lawyer who will fight zealously to prevent an injustice.

But, no matter how jaded, a defense lawyer can’t assume that the cops got it right because — let’s face it — the cops often don’t get things right, and in those cases the defense lawyer had better not be prevented, by confirmation bias or anything else, from seeking out the evidence that might save the accused from prison or death.

We are right to point out, as Rick does so well, the injustice that comes from prosecutorial group-think.  But we should never forget Bennett's admonition that it is an affliction that both sides suffer.  The defense can be guilty as well.