The bane of a lawyer's existence is the kind of witness like the one who levels his gaze at the jury, and in a calm, steady, confident, self-assured manner, relates that this defendant, wearing the orange jail uniform, seated next to the attorney at the counsel table, is the one who raped, robbed, or murdered..., yet the witness is wrong.
Students of miscarriages of justice put forth all sorts of reasons why the eye-witness made an incorrect identification.
The witness makes a mistake, the detective encourages a mistake, or feeds a fact to someone who then claims to have witnessed it to please the detective, and earn the reward...
The prosecutor, in the heat of battle, fails to correct a favorable misstatement by a witness.
So much of criminal law is decided inside the skulls of witness, detective, and prosecutor long before a jury is selected.
An example of applying the proverbial grain of salt is seen in this article about William Shakespeare and whether he had syphilis or not. It seems that his mentions of sexually transmitted disease are so graphic and telling that some medical experts are willing to say that he must have suffered from the disease himself.
This sounds plausible, correct?
No. It's not plausible at all.
Shakespeare happens to be the most graphic describer of anything known to the English language. He was close to a perfect describer. That was his genius. Shakespeare described kings, yet, as far as we know, he was not a king. He described Romeo and Juliet, yet he was not Juliet, etc.
The critic of the medical doctors notes that Shakespeare tends to be seen by individuals according to the temper of the times. This strikes me as similar to what is said of biographers of famous figures. You are apt to learn more about what the biographer, and his era, thinks important than what his subject did.
The power of suggestion is subtle and insidious.
David Brooks has a book review on the cover of today's (1/16/05) NYT Book Review on Malcolm Gladwell's new book called Blink (Little, Brown & Co), which is a collection of accounts of people who have been able in the blink of an eye to size up correctly some important or dangerous situation when other experts fail. Gladwell doesn't tell quite how they do this, however.
One of the accounts, however, concerns a group of black students taking a test. Half of the group was asked to list their race on the pre-test questionnaire, the other half not. Which half do you think did a lot better on the exam?
Maybe neither, for what difference could listing one's race possibly have on taking an exam?
Apparently it does have some effect, because the ones asked to list their race got about half the correct answers as the others.
Why?
There's a theory. Something about negative stereotypes.
Jeffrey Toobin has an article in The New Yorker (1/17/05) magazine's Annals of Law section called Killer Instincts. It's about a Tucson, Arizona prosecutor, Kenneth Peasley, who succeeded in putting ten percent of Arizona's Death Row inmates there. In his last big case, however, he was accused of allegedly knowingly offering perjured testimony to win a false conviction against at least two of three alleged murderers, and has been disbarred.
This leads to a discussion as to why someone would do something like that. Why execute the wrong guy who didn't kill anyone, and leave the real killer free to kill again?
This doesn't make sense, right? No sane prosecutor would do that.
According to Toobin's account (Toobin is a former federal prosecuting attorney) Mr. Peasley, who was twice Arizona's Prosecutor of the Year, "was convinced that the three were guilty, but he also believed that the evidence needed a push." That's a cute way of putting it.
Why does this happen? Toobin offers the theory of Rob Warden, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, whose staff members were in involved in eleven of the eighteen recent exonerations for more than a hundred and fifty convicted defendants. Eighteen miscarriages of justice out of 150 death convictions. Twelve (12%) percent. That's a lot of mistakes for a process that likes to kill people provided they deserve killin.'
Warden says of police and prosecutors:
"They just get wedded to a theory and then ignore the evidence that doesn't fit."
Toobin continues:
According to Barry Scheck, co-founder of the Innocence Project, which won exonerations for more than a hundred and fifty convicted defendants,
"After a while, some veteran prosecutors think that they can just trust their gut. Once you get to the point where you believe your instinct must be right, you quickly get to the point where you just deep-six inconvenient evidence."
There's more to it than that, I'm afraid.
Michael S. Gazzaniga is the David T. McLaughlin Distinguished Professor and Director of the Department of Cognitive Neuroscience at Dartmouth University. His book, The Mind's Eye (U.C. Press, 1998), relates how our minds have a feature, or function, that requires us to make up stories to explain the world around us. He calls it "the Interpreter." The odd thing about it is that it works to make up stories even when other parts of the brain are damaged, such as in "split-brain" patients, who only have the apparent use of one side of their brain due to lesion or accident.
Split-brain patients were shown two pictures, one exclusively to the left hemisphere, and the other to the right.
In one example, a picture of a chicken claw was flashed to the left hemisphere and a picture of a snow scene to the right hemisphere, along with an array of other pictures from which the patient was supposed to make some correlations. The chicken and the chicken claw were supposed to go together, and the picture of the snow scene goes with the shovel
One patient chose the picture of the shovel with his left hand and the chicken with his right. Asked why he thought they went together, the patient responded:
"Oh, that's simple. The chicken claw goes with the chicken and you need a shovel to clean out the chicken shed."
Gazzaniga explains that:
"the patient's left brain, observing the left hand's response, interpreted that response in a context consistent with its sphere of knowledge -- one that does not include information about the snow scene.... The left brain weaves its story in order to convince itself and you that it is in full control."
Yes, that does sound like something a prosecutor might feel and do.
"The interpreter influences other mental capacities, such as our ability to accurately recall past events. We are poor at doing that and it is the interpreter's fault. We know this because of neuropsychologist's research on the problem. ...Only the left brain has an interpreter, so the left hemisphere has a predilection to interpret events that affect the accuracy of memory." P. 25.
The left hemisphere [apparently] constructs theories to assimilate perceived information into a comprehensive whole. In doing so, however, the elaborative processing has a deleterious effect on the accuracy of reconstructing the past.
Gazzaniga explains that we have what amounts to our own built-in spin doctor in our left brain, whose function is to keep our personal story together. To do this we have to learn to lie to ourselves, (not that we would ever actually do that, of course.)
"The spin doctoring that goes on keeps us believing we are good people, that we are in control and mean to do good. It is probably the most amazing mechanism the human being possesses."
He goes on to say explain why he thinks our interpreter is reconstructing the automatic activities of our brain., and how we put a spin on our mistakes that makes it all seem like we are personally in charge.
Of particular interest to lawyers is the chapter entitled "Real Memories, Phony Memories," in light of the many accusations made by children and disturbed adults, often of a sexual nature, that have resulted in so many truly devastating horror stories in recent years. Gazzaniga describes the preparation of a child, for test purposes, to implant a false memory of something that didn't happen, but which the child will insist is true. "He was ready for the courtroom." says Gazzaniga. P. 148
"Nowhere is our automatic brain in more trouble than in recalling the past. The interpreter, working from noisy data, compounds the problem by embellishing on what it does recall. The story remembered on one day becomes part of the memory for the next time it is told. Soon begins a rich narrative about past events. The narrative most likely becomes less accurate and much more elaborate in its detail. The old adage that so and so just cant see it, can't see he has certain negative features on his personality, is true. He has weaved another tale about himself. My bet is it works even under horrendous conditions. I bet O.J. Simpson thinks he is a good person."
This may help explain why the detective who worked with the disbarred Tucson prosecutor, above, who was also forced to retire, apparently failed to recall a prior conversation with the ex-convict snitch who came forward to testify, in return for ignoring a 25-year to life sentence on a parole revocation on an alleged drug violation.
The snitch, on tape, made a reference to an earlier conversation with the detective about the case. The detective, according to the Toobin account, allegedly denied there was any prior conversation with the snitch.
This made it appear, at trial, as though the people named by the snitch as the murderers, was the result of something he witnessed, instead of something he testified to in court to please the detective and prosecutor, and thus obtain the benefit of a bargain that would keep him out of prison for a long time.
By failing to correct the record, i.e. allowing perjured testimony about there being no prior chats between snitch and detective whereby the detective may have spilled the beans about whom he was interested in, the detective and the prosecutor saw their careers come to a premature end when it appeared that they secured improper death penalties against at least two individuals.
***
Followup:
Richard Posner has a review of Malcolm Gladwell's Blink, here in which Gladwell's thinking is trashed.
