This pretty incredible two-part post from the appellatesquawk blog demonstrates how even good policies like videotaping interrogations can be undermined by bad expert witnesses and indifferent judges.
In 2008, the Troy Police Department videotaped the whole interrogation of Adrian Thomas. The tape shows Adrian with cops in his face for 9 hours, not including a 15-hour intermission in a secure mental health facility where they took him because he was so depressed.
And no wonder. Adrian and his wife had awakened that morning to find their 4-month old son barely breathing. They immediately called 911 and the baby was rushed to the hospital. Although he showed no signs of abuse or neglect, Child Protective Services swooped down on the Thomas household a few hours later and hauled away their six other children. Adrian was invited to the police station for questioning. He ended up charged with murder.
The post then goes into the details of Adrian Thomas’s interrogation, including some intense psychological manipulation of a grieving father. It’s too long to excerpt here, but it’s well worth reading. This part is key:
There’s one little problem: there was no head trauma. No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.
Yet somehow, the police were able to get Adrian Thomas to admit first that he may have accidentally bumped the child, then to admit that he must have blacked out memories of something more intentional, then, finally, to demonstrate with a binder how he violently threw the child to the ground. The confession is all they had. The confession and all the psychological manipulation that went into it was videotaped. But Thomas was still convicted. Here’s how:
The judge saw the whole videotape and thought the interrogation was A-ok. He wouln’t let the defense call Dr. Richard Ofshe to testify about police interrogation techniques and false confessions. False confession research is all anecdotal, he sneered. Besides, the jury could see the videotape for itself.
The jury thought it was rather bad of the police to lie, but the sight of Adrian throwing a binder to the floor was enough to make them ignore the medical evidence.
In the second post, appellatesquawk discusses the expert witness the judge did allow to testify: Utah law professor, former judge, and former prosecutor Paul Cassell. Cassell is at the forefront of the “victim’s rights” movement, an occasional contributor at the Volokh Conspiracy, and one of the loudest voices on the law-and-order right. Here’s what Cassell said at Adrian Thomas’ trial:
Unencumbered by training in the behavioral sciences, Cassell asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.
The Einstein of Utah didn’t stop with a single experiment. He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.
Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings. Needless to say, there should be no expert testimony on the non-existent phenomenon of false confessions.
The trial judge swallowed this whole.
This is reminiscent of Justice Antonin Scalia’s back-of-the-envelope calculations in Kansas v. Marsh about the frequency of wrongful convictions. And by reminiscent I mean, “also utter bullshit.” Which is appropriate, I guess, given that Cassell once clerked for Scalia.
And yet Thomas’ conviction was still recently upheld by a New York appeals court.
There was some good discussion on the MSNBC show Up with Chris Hayes this morning on the innocence movement. Innocence Project co-founder Barry Scheck was talking about the impressive legislative and policy victories the organization is collecting on issues such as improving how lineups are conducted for eyewitnesses, and recording policing interrogations. The Nation’s Liliana Segura asked Scheck a good question, which I don’t think he really answered. These policy changes are important and shouldn’t be understated, but Segura asked how we change the more fundamental problem, which is that the law enforcement side of the criminal justice system is and has long been strongly incentivized to convict and imprison. And it is prosecutors, not defense attorneys, who inevitably go on to become judges—and who then too often bring that mentality to the bench.
I don’t really blame Scheck for avoiding the question, because it’s a really difficult question to answer. A thorough answer would also involve some harsh words for the bar associations, prosecutors, and the policymakers Scheck is now working with to implement reforms. This isn’t a criticism of Scheck. It’s just realpolitik.
But the answer to that question gets to the heart of the single biggest barrier to meaningful criminal justice reform. The Thomas case illustrates it as well as any. So long as people like Paul Cassell are willing to spout nonsense on the witness stand, and so long as there are judges who will let him (and who will prevent people who have some actual expertise from testifying), even good policies like mandatory videotaping of police interrogations can fall short, even when a coerced, videotaped confession is the meat of a murder charge, even when it isn’t supported by any medical evidence.
So what is the answer to Segura’s question? I don’t think there is one that is satisfactory—or at least one that’s as simple as a new law or a new policy. To change the incentive to convict and imprison, you have to effect a sea change in how the public perceives the roles of law enforcement, especially prosecutors.
There are of course plenty of prosecutors in America who everyday choose not to pursue charges against someone because there isn’t enough evidence, or even when there is enough evidence, because a criminal charge wouldn’t be in the interests of justice. But this is key: Even these conscientious prosecutors don’t tend to publicize those decisions. They don’t put out press releases boasting about their sense of fairness in these cases the way put out releases boasting about their toughness when they’ve charged someone with felonies. That’s because they know that the public doesn’t attach much value to these decisions. They don’t respect a prosecutor who puts a premium on fairness and justice the way they value one who puts a premium on putting the bad guys away. These values aren’t mutually exclusive, of course. But they’re commonly perceived to be.
Look at a guy like Dallas DA Craig Watkins. For several years now Watkins has been bathed in positive press for his role in seeking out and freeing the wrongly convicted. He has been profiled, interviewed, and praised all over the country for his efforts. Elected officials around the country yearn for the kind of press he’s received, and most would ride it to an easy reelection. Yet when Watkins was up for reelection in 2010, he just barely squeezed out another term in office. This is a county with a history of reelecting law-and-order DAs—the DAs whose wrongful convictions Watkins is undoing—by wide margins.
Part of the answer to changing the incentive structure is of course to pressure bar associations to sanction prosecutorial misconduct, particularly willful misconduct. Part of it is waging public campaigns to oust from office prosecutors who make egregious errors. Part of it is to push for serious penalties, even criminal charges for prosecutors who engage in willful misconduct. Part of it is dialing back absolute immunity. As a Reason commenter once put it, convicting an innocent person of a serious crime ought to be akin to a physician amputating the wrong limb. It could well be an honest error, but at the very least, it’s a mistake with an order of magnitude that ought to have you looking for another line of work. That a guy like Forrest Allgood is still coasting to reelection despite two exonerations and five overturned murder convictions (that I know of) shows just how far we are from the ideal.
But public shaming, sanctions, and fighting the reelection of bad prosecutors is just the stick. The carrot is even tougher. We need to start praising prosecutors who make the tough decision not to press charges, particularly in high-profile cases. Actually, it’s even more difficult than that. The prevailing sentiment in this country is that a prosecutor’s job is to bring the most serious charge they possibly can, to stack charges so they have maximum leverage in plea bargaining, and to always charge when they have even the least bit of evidence—and let a jury sort it out. If you’ve read this site for a number of years, you can probably recall a number of cases where a prosecutor publicly said that his or her job was to win a conviction on the most serious charge possible. That, of course, is not their job at all. The George Zimmerman indictment is only the most recent high-profile example of this mentality. But it was disappointing to see how many otherwise smart, reform-minded people were perfectly find with that indictment, which most criminal attorneys I’ve read and spoken to found aggressive and unprofessional nearly to the point of malpractice.
The good prosecutors, the conscientious ones, obviously make the correct calls because it’s the right thing to do. But incentives do matter. I’ve sometimes wondered whether it’s smart to publicly praise prosecutors who make good calls on tough cases, because I wonder if drawing attention to them may actually hurt them. We need to get to the point where a prosecutor is just as likely to put our a news release or call a press conference to announce he’s not pressing charges as he is to seek attention when he is.
I don’t know exactly how we get there. I do think public opinion is, very slowly, moving in the right direction, though. To speed it up, maybe bar associations or a group like the Innocence Project could start giving out awards to courageous prosecutors who show (appropriate) restraint and caution when the public is baying for blood. Maybe such public honors would help generate discussion of these issues.
Somehow, the public needs to begin to grasp that a well-honed sense of fairness and propriety isn’t the same thing as appeasement. And that it’s just as important an attribute as aptitude at winning convictions.
(Via Scott Greenfield, who has more commentary.)