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Viewpoints

When Justice Stumbles, It’s a Teachable Moment

June 3, 2014 02:10:00 am

By James M. Doyle

A pilot and co-pilot operating on three hours’ sleep start taking a wrong turn— right into the path of another aircraft .  Quick work by an air traffic controller averts disaster over Washington state’s largest population center.  Aviation safety people call this a “near miss.”  (Although George Carlin thought “near hit” would be a better term.)  

A nurse realizes that she received the wrong dosage of a medication from the pharmacy; a medical student stops an unnecessary procedure that the attending physician thought he had cancelled in a new electronic ordering system.  Hospitals call these “good catches.”  

A New York man named Jason Jones and his brother, Corey, are  arrested and detained for murder.  His defense lawyer retrieves Jones’  Metrocard from the jail, has it analyzed by the MBTA,  and proves that the defendant was five miles from the scene of the crime when the murder was committed.  Months after the arrest the case is dropped by federal prosecutors.  

Aviation and medicine use different names for these episodes, but they share a common determination to document them and learn from them. 

In aviation, NASA administers an Aviation Safety Reporting Program that encourages the reporting of “near miss” events and provides confidentiality—even limited immunity—protections for reporters.  Events are analyzed, root causes are identified, and a publicly available data base is maintained.  

Many hospitals now go further, and offer special rewards and recognition to staff members who document a good catch,  which is defined as “an event or circumstance that has the potential to cause an incident or critical incident but that did not actually occur due to corrective action and/or timely intervention.”

But in criminal justice, disclosure of an air-tight alibi in mid-prosecution or the return of exculpatory crime scene DNA from the lab on the eve of trial  generally generates nothing more than sighs  of relief.

Everyone feels the exhilaration of having been shot at and missed; life goes on.  

That may be changing. 

Momentum is gathering behind the recognition  that criminal justice errors are system-based, and that every error can be a source of lessons that will cut the risk of future errors by identifying the latent system weaknesses that led to the original incident. 

The National Institute of Justice (NIJ), for example, has launched a Sentinel Events Initiative  designed to test whether a non-blaming, all-stakeholders review of criminal justice incidents, including near misses, modeled on the experiences of aviation and medicine  can change ongoing criminal practice by making the safety of the criminal investigative and adjudication processes a continuous  focus.

But much of the energy behind the effort to learn from error in criminal justice has been generated by the horror felt by all criminal practitioners at big, spectacular failures such as wrongful convictions. 

Innocent men finally released after 30 or 40 years in prison—or after erroneous death sentences—tend to overshadow the teaching potential of the  tragedies that are prevented from taking their full effect.

Although there have been efforts to call attention to near misses and a few social science investigations of their importance,   they remain in the background. 

Still, as National Transportation Safety Board Vice-Chair  Christopher Hart pointed out at the recent Quattrone Center for the Fair Administration of Justice Symposium, there are important advantages to looking at high frequency, (relatively) low impact events.

To begin with, there are a lot more of them. 

Exonerations may sometimes seem to be reported almost daily in the national media, but within a given jurisdiction, an exoneration is still a rare event. 

An examination of a near miss or a good catch is also timelier than an exoneration after a wrongful conviction.  The documents and the people will be more readily available; the procedures and practices being examined will be current and worth changing; the whole enterprise will be more like quality control, less like archeology. 

Not only are there more “good catches” than there are exonerations; if we put finding them on our agenda we are more likely to hear (and to hear more) about them.  They aren’t automatically publicized, but, at the same time, there is little reason to keep them secret.   

For someone in the system, after all, the “good catch” is a success story.  For the people upstream from the “catch” who put the outcome in jeopardy shame, guilt, trauma and fears of discipline or financial liability are muted by the fact that the worst that could happen didn’t happen this time.

Safety experts argue that Murphy’s Law is wrong:  that everything that could go wrong usually doesn’t, but then we draw the mistaken conclusion.

For safety people, the absence of past accidents doesn’t mean that things are safe.

In the Jason Jones  Metrocard example of a  “good catch” in New York, something eventually went right.  But why did things go wrong up until that point?  Can those things happen again?  When things did finally go right, why did they go right?  Was this just luck? 

Does it indicate a safe system we can depend on, or an unusually alert defense lawyer?  Could the system build a checklist based on this lesson to share with the others?  Train all of its defense lawyers on it?  How was the evidentiary integrity of the Metrocard maintained?  (After all, if everyone gets to trade Metrocards in the lockup, the Metrocard wouldn’t tell you much.) 

Was this systematic?  Will it happen the next time?  Do we have a procedure for preserving digital evidence—cell phones, Metrocards, computer logins—in these situations? 

An important feature of the criminal justice near miss is that it dilutes the impact of hindsight bias. That is, against the belief that a big tragedy must have had a big cause, a particularly evil villain, or a particularly grotesque episode of incompetence. 

The fact is, criminal justice errors are rarely single-cause events. They are typically “organizational accidents” in which many small errors combine with each other and with hidden system weaknesses, and everyone involved bears some measure of responsibility, if not for making a mistake, then for failing to catch someone else’s. 

Pretty much the same is true of a near miss or a “good catch.” 

It took a good lawyer to get Jason Jones released, but it also took an assigned counsel program that didn’t drown the good lawyer in a caseload of 300 open felonies.  It took a good property clerk to keep the evidence, a good investigator to protect its integrity, and a prosecutor’s office that was willing to listen. 

The next time one of these cases comes along, all of these players will have an interest in freeing the wrongly detained and concentrating on chasing the real perpetrator.  Not only that:  all of them have an interest in doing that fast, before the arrestee loses his job or his house and the perp covers his tracks, or finds new victims.

If, through vehicles such as NIJ’s Sentinel Event Initiative, we can find a way to collect, analyze and share the lessons of “near misses” and “good catches,” we might have a double win. 

Suppose we had a non-blaming, all-stakeholders’ analysis of the Jason Jones case instead of just a newspaper article?  We would be alerted to poor choices and weaknesses in the New York system that led to the mistaken arrest and that might be present in our own local system.  We would see resiliencies present in the New York system that led to the “catch” that our own local system lacks. 

There’s a lot to be learned from each of these episodes.  The more of them we learn from the better.

 

 James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

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