Everyone expects the National Academy of Sciences’ report on the state of the forensic sciences to mark a watershed in criminal justice, but since the report itself has not been released, the front page preview of the report in the New York Times relied on accounts from various sources that had seen early drafts.
The article presents a succinct example of how despite getting lots of small pieces exactly right you can get the big story completely wrong. The DNA exoneration cases have thrown a harsh light on tragedies in which the analyses of bite marks, hair and fiber evidence, fingerprints and firearm identification have been “handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.”
With disturbing frequency that slovenly process has resulted in the arrest, conviction, and imprisonment of the wrong man.
But what the Times didn’t mention is that every time the wrong man goes to prison, the right man escapes as a result, and is free to find more victims. The perverse effect of this omission is to focus the entire conversation on an illusory Manichean conflict between implacable enemies: the Champions of Innocence in the defense bar and the National Academy on one side, and a conviction-obsessed “law enforcement” monolith on the other.
This conflict is potentially no less destructive for being imaginary. The fact is, no one became a prosecutor, joined the police force, or studied forensic science in order to convict the innocent so that the guilty could go free. Most of the people who actually practice in the criminal justice system recognize a shared interest in good forensic science. Where reforms in investigative procedures have been implemented in the wake of the DNA exonerations—for example, in the area of eyewitness lineup practices—it has been because of the cooperative presence on Innocence Commissions or Technical Working Groups of representatives of all of the criminal justice system’s practitioners: cops, prosecutors, defenders and scientists.
Productive discussion of the NAS report is threatened by another favorite theme that haunts the Times piece: the hunt for the “bad apple.” Since we know there have been tragic wrongful convictions based on bad science—according to this view—there must have been bad scientists. The trick is to find them. The Times leaves the impression that the hunt for—and discipline of—these bad apples is what the NAS Report is (and should be) all about.
Well, there are bad scientists. But no bad scientist on his or her own was enough to cause a wrongful conviction. It took bad hiring, bad funding, bad training, uninformed prosecutors and defenders, and lax legal criteria, to send the wrong man to prison. A wrongful conviction is an “organizational accident” made up of many active mistakes interacting with existing latent conditions.
Aviation and—increasingly—medicine have grasped this point. As Dr. Lucien Leape put it in his classic essay, Error In Medicine: “While the proximal error leading to an accident is in fact, usually a “human error,” the causes of that error are often well beyond the individual’s control. All humans err frequently. Systems that rely on error-free performance are doomed to fail.”
The NAS report will catalogue vivid, horrifying tragedies, but it will also try to confront close and complex questions about the nature of science and of the systems that we rely on to mobilize science in the cause of justice, not a slugging match between good and evil. We ought to read the report before we write about it, and we ought to try and read it with the seriousness the issues deserve.
Posted by Tina Trent
Tuesday, April 07, 2009 12:06
Actually, why bother? The media has proven itself to be completely unwilling to look beyond the Innocence Project’s in-house, manufactured statistics when reporting on the prevalence of, or causes for, the handful of wrongful convictions that have occurred over the past thirty years. Why blindly take their word for it when they report that X or Y incidents were “caused by” only certain factors they have selected out from the totality of circumstances surrounding the crime and its prosecution? You can’t tell me that journalists even bother to look at original trial records — you know they do not. For just one example of the subjective nature of the Project’s chosen “factors,” consider this: they don’t count “prior record for a similar crime” as a factor in wrongful prosecutions, but prior records certainly contribute to men being brought to the attention of police and prosecutors in the first place. Instead, the charge of “wrongful identification” is simply dumped on the victim’s head, as if any victim maliciously pulls such men out of the hat. They don’t. The only intentional misidentifications that exist in the Innocence Project’s records are intentional misidentification by a guilty sibling or criminal co-conspirator. You wouldn’t know this by reading any of the hundreds of articles about acquittals published by a willfully gullible press.
Nor do journalists and their academic counterparts even bother to observe in passing that these “wrongful conviction statistics” are not contextualized within data on rightful convictions or rates of crime. Reporting on this subject is a hopeless echo-chamber of half-truths, with the burden of these journalistic decisions landing heavily, and unfairly, on victims of crime.