The Death of Innocence

In the aftermath of the “shocking” DNA exoneration of convicted rapist Steven Avery in 2003,  the Wisconsin Criminal Justice Study Commission was formed.  It’s purpose, to put “a diverse body of experts and leading practitioners” in the same room and arrive at reform proposals to prevent this from happening.  Yesterday, Michael O’Hear, one of four lawprofs on the commission, posted at PrawfsBlawg of its demise.  No one was saved.

O’Hear conducts a fascinating post-mortem (I told you O’Hear was good) on this well-intended effort to improve a system which ultimately ran out of steam before accomplishing anything.  Some of the reasons he points to are basic and institutional, such as the size (two or three dozen people from diverse backgrounds) and changing fiscal priorities.  These are lessons that never seem to be learned when grand plans are made.

Another difficulty is that Wisconsin (like just about every other state right now) is experiencing great fiscal pressure, and all of our agencies are fighting tooth and nail to hold onto their budgets.In truth, our prosecutors are underpaid, and I can understand their resistance to any reform (e.g., increasing Wisconsin’s worst-in-the-nation compensation rate for court-appointed counsel) that would require a commitment of the state’s dwindling tax resources.

But the primary failure of the Wisconsin Commission is also the most basic.  The two groups needed to reach consensus, prosecutors and defense lawyers, don’t agree.

Those on the prosecution side genuinely wished to avoid wrongful convictions and listened patiently to the information and arguments presented in support of proposed reforms.I heard no accusations that either side was intentionally seeking to subvert justice or otherwise advancing a hidden agenda.Rather, each side was convinced that the other suffered from a fatal cognitive blind spot.

On the defense side, the view was that police and prosecutors did not appreciate their own subconscious tendencies to ignore or downplay the significance of exculpatory evidence (or to exaggerate the significance of dubious inculpatory evidence) once they had settled on the identity of a perpetrator. 

On the prosecution side, the view was that the defense lawyers and professors were making too much of a few high-profile DNA-based exonerations that were not truly representative of the operation of the criminal justice system.Police and prosecutors felt that defense-side concerns were speculative.In the absence of hard evidence of systemic failure, they saw no reason not to continue to rely on largely unconstrained police and prosecutor discretion to screen out innocent suspects.

This not only sums up the daily battle in the trenches, but makes one of the more painful points about the existing system.  The system has developed to the point where it facilitates conviction.  If you’re a defense lawyer, the thumb on the prosecution side is the problem that produces the conviction of the innocent.  If you’re a prosecutor, you believe that everyone you convict is guilty and, aside from the minuscule oddball case, the system is working pretty darn well, thank you very much. 

O’Hear attributes the inherent conflict to cognitive bias, each side viewing the same set of facts from its own perspective and absolutely positive that the other side just didn’t get it.  As the genesis of the reform movement was DNA exonerations, which defense lawyers view as only a fraction of the problem, prosecutors were unmoved that these cases reflected a systemic failure (on their part and the part of law enforcement, naturally) rather isolated instances.  Were these “ice cubes or the tip of the iceberg?” 

My problem is that this fight will go on forever without a winner.  If we were capable of ascertaining a real statistical basis for assessing how many people were wrongly, or overly, convicted, we would similarly be capable of preventing it.  DNA exonerations are indeed the oddball, since DNA plays a role in only a fraction of criminal cases.  But it has proven what defense lawyers have been saying forever: the system is substantially less than perfect, far less so than the public realizes. 

This raises the question of how many innocent people the public is willing to sacrifice on the alter of law and order.  Since the general public suffers from cognitive bias as well, believing as it must that the system generally functions satisfactorily and that cops, even in light of the multitude of videos now available and coming out daily proving that some fall far short of credible, are still more trustworthy than not.  As defense lawyers know all too well, the message doesn’t strike home until it affects you or someone you love.  Only then does the injustice of it all seem to matter.

The failure of the Wisconsin Commission reflects the governmental inertia and ambivalence toward reform.  Despite the well-intended desire to “reform”, when one side at the table takes the position that there is nothing to reform, there is little to talk about.  Hopes rise every time a new commission is formed, or as legislatures “finally” consider making significant changes to the processes that have encouraged and allowed the perpetuation of the problems.  But when they end in a whimper, without any significant reform, or at best “camel” proposals that achieve nothing, few people seem to notice.  We are left with essentially the same system, for better or worse.  The status quo wins.

And people wonder why I am less than supportive every time I hear about a new “reform” commission.  Did anyone notice the huge groundswell of anger and frustration from the people of Wisconsin at the failure of their commission to fulfill its mission?  I didn’t.

3 thoughts on “The Death of Innocence

  1. John R.

    Well we now have a permanent “commission” here in NY to study wrongful convictions.

    I love the Innocence Project, but when they deal with this subject they tend to stick to the more acceptable problem areas, like unreliable eyewitness testimony and failures of defense counsel. They mention police and prosecutor misconduct, but that’s like the elephant in the room if you ask me.

    At the most general, macro level, I think the real problem is that people bow first to power; things like truth and justice come in a distant second, and often never get a hearing at all.

    On a more micro level, one reform that might really make a difference is if jury instructions gave some guidance on how to weigh evidence. At present there is no guidance at all.

    In criminal cases, juries should be instructed, for example, that police are generally experienced witnesses that give a favorable impression even when they are lying, and that defendants are generally inexperienced witnesses, very much at a disadvantage, and tend to give a poor impression even when they are telling the truth.

    Something like that.

  2. SHG

    I agree, John.  The “institutional” voices tend to focus on a few “reforms” that are high on their priority list, and ignore some of the far more difficult, and far more troubling, problems,  Changing eyewitness ID procedures and recording statements may be improvements, but they still leave a great many problems on the table.  The institutional voices say “one step at a time,” leaving an awful lot of blood on the floor in their wake.

    Of course, that’s my cognitive bias.

  3. Sojourner

    As someone with deep Wisconsin roots, this story makes me so sad.

    People in Wisconsin actually expect a lot more integrity from their ‘justice’ system than do people in Texas, where I live now. This is why a DNA exoneration in the state was seen as ‘shocking.’

    I agree that we can’t expect many reforms to come when prosecutors and police are involved. In many ways, Wisconsinites’ high expectations mean they assume the best intentions, a fatal mistake.

    It’s any wolves’ dream hen house.

    Thank you for your thoughtful, far-reaching post.

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