Blind Injustice

A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions

UNIVERSITY OF CALIFORNIA PRESS

Contents

Eye Opener

My client Ricky Jackson was sentenced, as he says it, to "death by electrocution." He narrowly escaped the chair in the 1970s before spending nearly forty years in prison for a murder he didn't commit — a national record that no one sets out to break. On a chilly Cleveland morning in November 2014, I walked with him as he left prison at age fifty-seven and entered a world that barely resembled the one he knew in 1975 as a kid who had just turned eighteen — Ricky's age when the state of Ohio first sought to kill him.

And I sat in court with Raymond Towler, who spent twenty-nine years in prison for a rape he didn't commit. Raymond is a peaceful and philosophical man, and an incredible artist and musician. A renaissance man. I was there when the judge banged her gavel and said to Raymond, after he had suffered through decades in prison, "You are free to go." After that, the judge left her bench, embraced Raymond, and, with tears in her eyes, recited the Irish blessing:

May the road rise up to meet you.
May the wind be always at your back.
May the sun shine warm upon your face;
the rains fall soft upon your fields,
and until we meet again,
may God hold you in the palm of His hand.

So far in my career as an innocence lawyer my Ohio Innocence Project represented and helped free twenty-five people like Ricky and Raymond who together were sent to prison for a combined 470 years for crimes they didn't commit. Some of them, like my client Nancy Smith, were ripped away from the arms of their children, and were able to hold them again in freedom only after they had become adults. Others, like Ricky Jackson, returned to a world that contained no remaining family members or friends with whom they had any sort of intimate connections.

* * *

I got to know my late friend Lois Rosenthal because she was naturally drawn to the problem of wrongful convictions. Lois was not a lawyer. Rather, she was a philanthropist and social justice activist of the best kind. She and her husband, Dick, have transformed my hometown of Cincinnati with their generosity and philanthropic spirit. For this reason, the Contemporary Arts Center, as well and many other things in town, bear their name. Lois was instrumental in establishing and building the Ohio Innocence Project, the organization that I cofounded in 2003 and still run today. The primary mission of the Ohio Innocence Project is to free innocent people from prison, like Ricky, Raymond, and Nancy.

Through the years, whenever I described a new case to Lois — in other words, when I told her about a prisoner whose case we had recently investigated and for whom we had discovered new evidence proving innocence — she would ask, "How could this happen?" Over and over again through the years she has asked me: "How could this person have possibly been convicted in the first place?"

And a few months later, when I would inevitably tell her that despite the strong evidence of innocence we had amassed the prosecutors were fighting back hard and were refusing to admit a mistake, she would ask: "Why? Why do they do that? Why can't they admit their mistakes? How can they let an innocent person stay in prison? How can this be?" Lois could never understand why the system fights back the way it does. The way it twists the law and facts to keep these injustices from seeing the light of day. And the way it resists reform. The way it makes heart-wrenching mistakes and then stubbornly refuses to change and improve.

Lois is not alone. Anyone who has been introduced to the problem of wrongful convictions in this country has asked these same questions. Indeed, I frequently speak on the topic of wrongful convictions, and the first questions I'm always asked as soon as I finish a speech are: "Why does this happen?" "Why do the prosecutors make it so hard to obtain justice for these poor people?" "Why isn't the system changing to reduce these problems?"

I receive these questions over and over again. I wrote this book to try to answer them. I decided to write it because my unusual career has given me a unique perspective that has allowed me to answer these questions in a way that most others can't. As an innocence lawyer and activist, I have routinely witnessed the unjust behavior of police, prosecutors, judges, and defense attorneys, and how this behavior has caused untold pain to thousands of innocent people suffering at the hands of the system. In other words, I have witnessed the things that puzzled Lois and others.

Before becoming an innocence activist, however, I served for many years as a hardnosed prosecutor. As a result of this unique juxtaposition, I now look back on my years as prosecutor and see that I engaged in this same type of conduct and had the same mindset that I now know causes tragic injustices. As did others around me. So this book is a kind of confessional and memoir, which, because of my personal journey, provides a behind-the-scenes look at the psychological and political factors that cause wrongful convictions in a way that no book previously has. It is also the story of one person's evolution, a story of my enlightenment and discovery.

In this book I explain how flaws in the human psyche, and political pressures, cause actors in the criminal justice — police officers, prosecutors, judges, and defense lawyers — to behave in bizarre and incredibly unjust ways without being aware that they are doing so. I talk about how, individually and as a society, we are by and large blind to these problems. We are in denial. Indeed, ours is a system of blind injustice.

And finally, I explain the steps we must take to improve — to become aware of the problems, and to open our hearts and minds — in order to create a more just and accurate system.

* * *

Earlier in my career, I served for many years as a federal prosecutor in New York City, where I prosecuted high-level felonies that frequently made the local news and sometimes even the national news. Organized crime cases. Hijacking cases. Terrorism cases. Major fraud cases. And cases involving corrupt high-level politicians. I won local law enforcement awards for "aggressively fighting crime," and a national award from U.S. Attorney General Janet Reno for "superior performance" that only a small number of prosecutors nationwide obtain. I was a prosecutor's prosecutor.

In 2001, I went back to my hometown of Cincinnati to serve as a criminal law professor at the Chase Law School, part of Northern Kentucky University near Cincinnati. Chase Law School had an organization called the Kentucky Innocence Project. It was part of a national network of organizations, typically based at law schools, which use law students to try to free the wrongfully convicted from prison. The professor who supervised the Kentucky Innocence Project was on sabbatical my first year of teaching, so I, as the new criminal law professor on the block, was asked to fill in and help supervise the students that year. But as a former prosecutor, I was skeptical. I didn't believe that innocent people were sent to prison in this country. I didn't really want to do it. But as a new professor, wanting to please my new bosses, I couldn't really say no. So I grudgingly agreed.

At my first meeting with the law students in the Kentucky Innocence Project, two students reported on their meeting with an inmate named Herman May, who was in prison for rape. They had just returned from visiting him in prison. With great emotion and passion, they talked about how they "looked into his eyes" and could see his sincerity, could feel his pain, and came to "know" he was innocent. I sat there and listened to their description and internally rolled my eyes. "How naïve," I thought. "What a bunch of gullible, bleeding-heart law students."

I asked the students about the evidence that convicted May in the first place. It turned out that May had become a suspect because he was caught pawning a guitar that had been stolen from a car in the same neighborhood and on the same night of the rape. Acting on a hunch derived from this coincidence, the police put May's picture in a photo spread and showed it to the rape victim. The victim identified May, and then testified at trial that May was the man who had raped her.

Semen from the perpetrator had been collected by a hospital from the victim's body at the time of the rape. The victim had testified at trial that she was not sexually active then, and therefore the semen belonged to the rapist. But DNA testing of the semen was not possible at the time of May's trial. So May was convicted and sent to prison.

Based on the certainty of the victim's eyewitness testimony, I believed May was guilty. In fact, I knew it. The students were hopeless romantics, I thought, if they actually believed that this guy might be innocent given how confident the victim was in her identification.

But the Kentucky Innocence Project moved the court for DNA testing of the semen using new scientific techniques. The DNA test results came back and confirmed that the DNA profile in the semen from the rape did not match the DNA profile of Herman May. May was released from prison after serving thirteen years for a crime it appeared he had not committed.

This was, needless to say, an eye-opening experience for me, the prosecutor's prosecutor. I was shocked. Suddenly the stories told by the students as to how May, as a teenager, had been taken in tears from his high school social studies class by the police and whisked to the police station, only to have pubic hairs plucked from his groin for forensic analysis, had new meaning. And it made me feel a little sick that I had scoffed at those stories just months before, thinking he had deserved it. I was confused as to how this could have happened.

Shortly thereafter, I attended the national Innocence Network conference. There, I met many men and women from around the country who had served ten, fifteen, or even twenty-five years in prison for crimes they did not commit. I attended lectures from scholars and lawyers about new knowledge that had come to light about weaknesses in our criminal justice system. This was the first time that I truly experienced the innocence movement. It caused me to slowly, but surely, start to see things in a new light. I began to understand that there was more going on than I had previously seen, and that there were problems in the system that I, as a prosecutor, should have seen, but about which I had simply been in denial.

The next year I got a job at the University of Cincinnati College of Law. At the time, Ohio was the one of the largest states in the country that did not have an innocence organization. With John Cranley (at the time of this writing, the mayor of Cincinnati), and others, I founded the Ohio Innocence Project at my new law school in 2003. By that time, I was a believer.

Since that time, my project has investigated thousands of cases of Ohio inmates claiming innocence. While our investigations have confirmed the guilt of many, as mentioned earlier we have freed twenty-five men and women on grounds of innocence.

Nationally, more than two thousand people have been identified as victims of wrongful conviction since 1989. The number continues to grow weekly. The details of these cases are maintained on the National Registry of Exonerations website, run by a collaboration of several prominent universities and law schools. But I now know that this number is just the tip of the iceberg, because DNA and other new evidence is available in only a small percentage of cases. Many more inmates, with no evidence to work with, simply have no way of proving their innocence.

But the mere fact that innocent people in our system are occasionally wrongfully convicted is not what prompted me to write this book. Indeed, the revelation that innocent people in this country too often go to prison, while once earth-shattering, is by now old news.

Rather, I was impelled by my personal experience. From my perch as a prosecutor turned innocence advocate, I have witnessed bizarre human behavior that has left me both fascinated and shaken. I have seen how witnesses get it wrong but adamantly believe they are right. How witnesses have their stories twisted and rearranged by the police and prosecutors, without even realizing they have been manipulated and without the police and prosecutors realizing they have altered witnesses' statements to fit their theory of the case. How prosecutors, police, judges, and defense attorneys develop tunnel vision and make irrational case-decisions because theyrefuse — no matter the evidence — to question their initial instincts. How politics and internal pressures have caused people in the system to act unjustly and unfairly, all the while in denial about their true motivations. How they have become stubborn and arrogant about their ability to divine the truth, while they are in denial about their human limitations. And I have seen how these human flaws have resulted in tragic, gut-wrenching injustices.

In the end, the most lasting and important result of the innocence movement will not be the innocents who have been freed. Rather, I believe that it will be the new understandings in psychology that it has spawned, and the way that new understanding will reform the criminal justice system. The innocence movement led social scientists to study human perception, memory, and error with renewed vigor, resulting in a better understanding of the human mind. Psychologists began asking, "How could ten witnesses have taken the stand and said they were all positive that this man was the perpetrator, while DNA testing proves that it wasn't him?" "How could a regular person, with above-average intelligence, have confessed to murder, and even become convinced that he did it, when we now know from DNA testing that someone else did it?" "How could a supposedly neutral CSI forensic scientist take the stand and say that the defendant's fingerprint matches the fingerprint on the bloody knife, when we now know that isn't true?"

The answers are startling. And they not only help explain the many wrongful convictions but they call into question many of the basic premises of our criminal justice system, and even how we come to perceive "the truth" in our daily lives.

I have been fortunate to be deeply involved in these developments both from an academic perspective — researching and teaching the clinical developments in psychology — and as an innocence lawyer/former prosecutor, which has given me a front-row seat to how these psychological principles play out in the real world. This book is therefore designed to illustrate these principles from both an academic and a real-world perspective. Each chapter explores a distinct psychological human weakness inherent in the criminal justice system, such as confirmation bias, memory malleability, eyewitness misperception, tunnel vision, credibility-determining errors, administrative evil, bureaucratic denial, dehumanization, and the system's internal political pressures. I discuss what we have learned about these issues from academic and clinical studies in psychology, but also describe cases from my own career as a prosecutor and innocence lawyer and show where these principles distorted the truth or resulted in grave injustices. Because they are also relevant outside of the criminal justice system, I attempt to show how these psychological problems can cause us to lose sight of the truth in our everyday lives as well, both at work and at home.

As I'll explain, the psychological flaws behind wrongful convictions are a triple-whammy. They not only contribute to the wrongful convictions in the first instance, but they make us unable to see or comprehend the errors as they are happening. In other words, they blind us to their impact. Then the same psychological problems cause us to deny the mistakes after-the-fact when a wrongful conviction is claimed twenty, thirty, or even forty years later. In other words, the psychological issues at work create the problem, blind us to the problem as it's unfolding, and then insulate the problem from introspection and discovery after-the-fact. As a result, we as a society are in collective denial about our biases, misperceptions, and memory problems. Prosecutors, judges, police officers, jurors, witnesses, defense attorneys, media reporters — everyone — have bought into the myths of the system and confidently go about their business unaware of the thin ice they are walking on. Though new breakthroughs in science and psychology are quickly eroding the myths of the past, players in the system by and large ignore them, resist the "new," and confidently assert their opinions in ignorance of their flimsy foundations.