To improve our system of justice, two things need to change. First, we need to recognize that the criminal justice system is not a self-automated machine that has been calibrated through the decades to achieve perfect justice. Rather, it is comprised of human beings, and is deeply infused with the psychological flaws that humans bring to it. We need to embrace our humanity and not be afraid to acknowledge and mitigate human error. In other words, we need humility and the ability to accept our human limitations.
In episode 9 of Making a Murderer, Steven Avery’s defense attorney Dean Strang says, “Most of what ails our criminal justice system lie[s] in an unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they are getting it right, that they are simply right. Just a tragic lack of humility of everyone who participates in our criminal justice system.” Later, in an interview that was reported by the New York Times, Strang was asked, “How do we change that culture?” He answered, “I think it starts with humility, [with] recognizing that every one of these institutions that together compose the criminal justice system is itself made up of human beings, all of us flawed, all of us broken. . . . I think we need to have the humility to recognize that and correct serious mistakes.”1
Those words could have come right out of my own mouth. In fact, I came to this realization myself—by accident. I left my prosecutor’s office arrogant and with my eyes closed to the imperfections in the system. Only through a process of education brought about by being, in essence, forced to help supervise the Kentucky Innocence Project as a fledgling academic did I eventually recognize the need for change.
Second, we need to implement structural and procedural changes in the criminal justice system to compensate for our psychological flaws. From mistaken eyewitness identifications to false confessions to bad forensics, there are clear and obvious steps we can take to limit or remove the human influences that lead to unjust results.
These two types of change—attitudinal and procedural—go hand in hand. The more we understand that the system is infused with human flaws, the more likely we are to embrace procedural changes designed to minimize the human problems.
The procedural changes that must be implemented have been set forth throughout this book. Each could be the topic of a book in and of itself. Indeed, entire books have been written on the steps necessary to improve specific types of evidence, such as confession evidence, eyewitness identification evidence, and snitch and forensic testimony.2
In summary, the following procedural changes are needed:
• Eyewitness identification. A police officer administering a photo line-up should employ the double-blind, sequential method. Instructions to witnesses should be standardized, and witness confidence statement should be taken immediately after an identification is made. All identification procedures should be videotaped.
• Interrogations. Interrogations in cases of all serious crimes must be videotaped from beginning to end without interruption. Police departments should explore new interrogation techniques that are more productive and less likely to elicit false confessions than the Reid technique, such as the HIG or PEACE method.
• Incentivized witnesses (snitches). The use of such witnesses must be tightly controlled, with procedures implemented to improve reliability, such as those previously implemented in LA County and some parts of Canada.
• Forensics. “Blinding” procedures recommended by the 2009 NAS report and leading scholars must be implemented, which would remove confirmation bias from forensic analysis.3 For example, forensic agencies should be removed from the control of law enforcement,4 and experts should be given limited information about a case before performing their analysis so that they don’t know the “right” answer before they start. A “blinded” supervisor should confirm the results of the first analysis. Procedures like this have been implemented already in Scotland.5 In addition, accreditation and validation standards of forensic disciplines must be devised and enforced to ensure compliance with basic safeguards of reliability.
• Defense attorneys. We must work to level the playing field between the prosecution and defense, with adequate resources provided to defense counsel for investigative and forensic pursuits.6
• Police and prosecutors. Police officers and prosecutors should receive formalized training on the dangers of tunnel vision and how to combat it, and the dangers of the other psychological pitfalls outlined in this book.7 Training of this nature has already been implemented in some jurisdictions in Canada.8
• Elections of judges and prosecutors. We must work to modify how judges and prosecutors are chosen, immunizing them from political pressure, and move from an election model to appointment by bipartisan commissions, similar to what already occurs in the federal system and some states, like Arizona.9
The structural changes that our system needs are easy to identify and articulate, and have been fully outlined in many different publications. The website of the Innocence Project, for example, delineates all of these procedural reforms on a single webpage, with links supplying detailed information on each topic.10 Some of these reforms would be expensive to implement, like increased resources for defense investigations, and thus may take years to achieve. Others are relatively inexpensive and easy to implement, like eyewitness identification reforms and procedures in forensic labs to reduce human bias.
The problem, therefore, is not identifying which reforms are necessary, but rather getting system buy-in on their implementation. Implementation requires opening the eyes of those in the system so that we can shift from arrogance and resistance to openness and vigilance, always looking for ways we can improve and provide greater justice. But so far that’s proven to be easier said than done, even for reforms that are inexpensive and would take little effort to carry out.
• • •
When an airplane disaster occurs, the National Traffic Safety Board and the Federal Aviation Administration swoop in and create a diversified task force to investigate the causes of the crash and propose reforms to reduce the chances of a similar crash happening in the future.11 Where appropriate, changes are mandated, from modifications in air-traffic control procedures to improvements in airplane manufacturing.
In the private sector, if an executive working for a chain of restaurants on the East Coast decides that the company should expand into the Southwest, the decision will usually be challenged internally. Supervisors in the company will typically play devil’s advocate and demand that, before substantial company assets are earmarked, the idea must be thoroughly tested against any and all competing views. External focus groups will often be created to determine if the executive’s hypothesis is accurate. Is there a taste for our brand of food in the Southwest? What competitors are already located in that region?
Anheuser-Busch, IBM, Royal Dutch Petroleum, and 3M, for example, are major corporations that have implemented formalized “devil’s advocates” in their decision-making processes, but most companies inherently engage in this process regardless of whether or not it’s formalized and labeled.12 My next-door neighbor is an engineer at Proctor and Gamble. His job is to analyze the manufacture of Proctor and Gamble products, and to question whether existing processes for production are energy-efficient. His sole job is to play devil’s advocate and challenge the status quo—to find a way to save energy at every step of the process. He is paid specifically not to accept the way it’s always been done, but rather to aggressively challenge it.
The international bestseller In Search of Excellence: Lessons from America’s Best-Run Companies champions the necessity of devil’s advocacy in the private sector.13 And business journals are full of articles extolling the necessity of fighting tunnel vision in business, replete with scary examples of companies that went bankrupt because they allowed tunnel vision and “groupthink” to go unchecked.14
The discovery of hundreds if not thousands of wrongful convictions in the past twenty-five years should be viewed by the criminal justice system as indicative of a disaster. A mass disaster. Innocent people walking out of prison on a weekly basis after spending twenty, thirty, or forty years in prison for crimes they didn’t commit would be, in the aviation field, the equivalent of planes crashing left and right. In the restaurant business, it would be the equivalent of a company repeatedly opening up new branches that immediately go under, causing great financial loss and eventual bankruptcy. In the private sector, such results wouldn’t be tolerated for long. Yet, the criminal justice system consistently resists introspection and change. When a police officer or prosecutor gets hot on a case and becomes singularly focused on a suspect, a race ensues to confirm the hypothesis. Unbridled tunnel vision sets in. The entire police department or prosecutor’s office might join in to help turn the hypothesis into a conviction. And when an inmate who has been in prison for twenty years asserts that he was wrongfully convicted, and brings forth new evidence to support his claim, it’s met with a knee-jerk denial from those in the criminal justice system. Rarely is there an objective inquiry. There is no built-in devil’s advocacy here.
So why is the criminal justice system in a silo, seemingly immune from introspection and reform? Simply put, largely because actors in the system don’t have to respond to market demands. In the private sector, if an airplane crashes, or a product is defective and causes injuries, or a hasty business decision costs the company millions of dollars, market pressures require the company to take steps to ensure that such risks are minimized in the future. To do so, they institutionalize checks and balances and require that all hypotheses or business intuitions be challenged and tested to some degree before they are put into practice.
But actors in the criminal justice system—police officers, prosecutors, judges, and so on—don’t have to respond to a market in the same way. They operate in a stilted environment, where those injured by their actions—the wrongfully convicted—are not consumers of their product. They don’t need to fix or tweak anything to induce those they’ve injured—the innocents—to come back and buy again. It simply doesn’t work that way. And with the qualified immunity that the U.S. Supreme Court has generously supplied to prosecutors and police in recent decades, which protects these actors from civil liability for their misconduct, they’re rarely held accountable through their pocketbooks or in any other way. If a wrongfully convicted person is somehow able to pierce the shield of qualified immunity and obtain a monetary verdict against a police department or prosecutor’s office, insurance companies usually foot the bill. Actors in the criminal justice system are almost never held accountable for their actions as are players in other facets of the professional world.
And given the “tough on crime” political environment in which those in the criminal justice system operate, the public is happiest when their public officials flex their law enforcement muscles and convince them that the occasional wrongful conviction is a great aberration that could never happen to John Q. Public. That’s what the public wants to hear, and they believe it. Until it happens to them. I can’t count the number of times I have answered a call from a mother or wife who wants to tell me about her son’s or husband’s wrongful conviction, and the first thing she wants to tell me is how unfair the trial was, and how overzealous the prosecutors acted, and how she never thought a witch hunt like that could happen in America. She invariably tells me stories with great passion, as if she thinks I’m hearing something new and her stories will be a great revelation to me. I say, “Yeah, you were in the fog like everyone else—oblivious. Welcome to my world. Now you know how our system really works, unfortunately. Sorry you have to be one of the enlightened ones.”
• • •
I said at the beginning of this book that this was not a doomsday book. And it’s true. The good news is that, despite the silo in which the criminal justice system operates, change is beginning to happen. Change has taken place surely but slowly, because the innocence movement has continued to gain momentum and the public has gradually taken notice of the problem of wrongful convictions. So far, fourteen states have adopted eyewitness identification reforms,15 and twenty-three states have policies requiring the recording of interrogations.16 Twenty years ago, no jurisdictions were taking steps to curb wrongful convictions. The number of local jurisdictions adopting these “best practices”—either voluntarily or through legislative or court action—continues to grow each year. In 2017, one of the major national companies that trains police departments in interrogation methods announced that it was abandoning the Reid interrogation technique because of its tendency to produce to false confessions.17 That was a major blow to the fortress of Reid, which was once thought impregnable.
In 2015, the FBI announced that more than two thousand convictions that involved microscopic hair comparisons required reexamination because of the flaws with this forensic discipline.18 That review is under way, and exonerations have already begun to occur as a result.19 In 2013, the Department of Justice created the National Commission on Forensic Science, whose mission is to “enhance the practice and improve the reliability of forensic science.”20 Sadly, the Trump administration killed this commission when it took the reins in 2017, but hopefully that action will merely be a temporary blip in a radar field that otherwise appears to be trending slowly but surely in the right direction.21
In 2003, when the Ohio Innocence Project was founded, I began talking to legislators in Ohio about the need for eyewitness identification and interrogation reform. I was met with blank stares and little patience. But I kept talking to them about these pressing needs. And each year the reception I received improved a little. By 2010, a reform bill my office drafted—which included eyewitness identification reform, interrogation recording policies, expanded access to postconviction DNA testing, and a DNA preservation law (so that law enforcement must save the DNA from a case until the inmate is released from prison)—was passed by both state houses and signed into law by the governor. It made Ohio a “national model” for innocence reform and was called by a sponsor “one of the most important pieces of criminal justice legislation in this state in a century.”22
I learned a valuable lesson through this process: change happens very gradually. Activists must understand that if they at first encounter resistance, sometimes people must hear about a problem many times, over a course of many years, before the message sinks in and they start to take notice. The “effective frequency” theory in the field of marketing, for example, holds that when a person hears a new idea for the first time she often instinctively throws it to the wayside. But each time she hears it thereafter, the idea sounds less strange. Eventually, the idea sounds within the range of “normal” and can be openly considered and debated.23
I found this to be true with innocence reform. Activists sometimes get frustrated and give up when results are not immediate. But change—particularly change of this magnitude across a vast criminal justice system—will happen slowly but surely when we are resolute and keep “screamin’ and hollerin’,” as my friend and exoneree Dean Gillispie always says, until the truth wins out.
This is true with any civil rights movement. When I was in high school in the early 1980s, a fellow student in speech class gave a speech on the evils of homosexuality, and no one in the class batted an eye—not even the teacher. Thirty years later, such a speech would be received in an entirely different way. Indeed, I have seen tremendous shifts in societal views in my lifetime, on issues ranging from gay rights to marijuana legalization. And so it will be with innocence reform. I believe that if we keep pressing and educating, we will see massive transformation in our criminal justice that will make it more accurate, fair, and just.
With the forces that bring procedural changes comes humility—attitudinal change. For example, in recent years, more than twenty-five prosecutors’ offices across the country have opened what are known as conviction integrity units (CIUs), which delve into postconviction claims of innocence in an attempt to free the wrongfully convicted. The Conviction Review Unit in Brooklyn District Attorney’s office, for example, exonerated twenty inmates in the first two years of its operation. The DA who created it, Ken Thompson, who late in 2016 sadly passed away at age fifty, called it a “national model”—and he was right. His office freed more innocent people between 2014 and 2016 than my Ohio Innocence Project and probably any other innocence organization in the world.24 Except, that is, for the CIU in the prosecutor’s office in Houston, Texas. Prosecutors there freed forty-two inmates on grounds of innocence in 2015 alone.25 No law school innocence organization, including my own, can come close to matching those numbers.
The CIUs in Brooklyn and Houston are, of course, a welcome and much-needed addition to the innocence movement. Combined with independent innocence organizations like my Ohio Innocence Project, they provide a blueprint for how we can eventually conquer the problem of wrongful convictions. But the failings of CIUs in other jurisdictions show that success in this area is hard to attain. Many of the other CIUs thus far appear to pay little more than lip service to the problem of wrongful convictions, because the prosecutors in charge seem understandably unable to move past their own psychological barriers to adequately reexamine old cases with a fresh eye. A 2016 report issued by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania School of Law recognized this problem, issuing a series of recommendations to make CIUs more effective, like the ones in Brooklyn and Houston. Included in the report was a recommendation that CIUs employ criminal defense attorneys and others from outside the prosecutor’s office to combat the inevitable confirmation bias and tunnel vision to which any human being may succumb when reviewing his or her own work, or the work of a close colleague.26
But in 2015, 58 of the 149 exonerations in this country came from prosecutors’ offices—from CIUs. Those 58 exonerations came from the small group of CIUs that have proven to be effective, ones that have seemingly been able to get past the psychological roadblocks. This small group of effective CIUs exonerated nearly as many innocent people in 2015 as did all the law school and freestanding innocence organizations combined. One can only imagine that if every major city in the United States had a CIU as effective as the ones in Brooklyn and Houston, it would be a complete game changer. The number of annual exonerations nationally would be staggering. Such is the hope for the future.
• • •
Our Ohio Innocence Project client Ricky Jackson was exonerated in November of 2014 after serving thirty-nine years in prison. Ricky spent more than two years of that time on death row, coming within a few months of his execution date and escaping death only because of a lucky paperwork error that had occurred at his sentencing. Ricky’s thirty-nine years gave him a dubious distinction at the time, making him the longest-serving exoneree in U.S. history. Ricky and his two best childhood friends had been convicted in 1975 based on the testimony of a twelve-year-old boy, Ed Vernon, who said he saw Ricky and his friends commit the murder. We were able to exonerate them nearly four decades later because Ed Vernon, by then a man in his fifties, recanted. He explained that he’d lied at trial because of intense police pressure and manipulation. That lie, he later said on the stand at our hearing in Cleveland, had ruined his life.
Going into our court hearing to exonerate Ricky, I felt the odds were stacked against us. It is very difficult to win a case like Ricky’s without ironclad evidence of innocence, like DNA test results. I knew from my experience that prosecutors and judges will virtually never agree that a recantation like Vernon’s is valid—they will claim in a knee-jerk manner that someone pressured or paid the witness to recant. Simply put, they are usually unable, because they are human, to reexamine such a case with an open mind, and thus they typically fight back with ferocity.
Prior to the court hearing, the prosecutors in Cleveland asked if they could meet with Ed Vernon alone, in advance of the hearing, to get a sense of whether or not he was telling the truth. Earlier in this book, I told the story of a similar request from a prosecutor’s office in a different case. When our witness in that case arrived to meet with the prosecutors, they didn’t bother to interview him, but rather had him arrested for a series of unpaid traffic tickets in an effort to intimidate him from testifying. The requested interview was nothing more than a sham.
But in Ricky’s case, we agreed to let Vernon meet with the prosecutors in advance of the hearing. We agreed because we had sensed, from our frequent dealings with the prosecutors in Cleveland, that their attitude toward innocence had evolved in recent years. When we first started bringing cases to their attention, shortly after the OIP opened in 2003, we were often met with the same type of close-minded resistance described throughout this book. But that attitude seemed to have changed a bit over the years. Not in every case, and not with every prosecutor in that office, but there were several prosecutors in the Cleveland office who we felt had listened to the message of the innocence movement, and who were doing their best to achieve justice on a case-by-case basis in an open-minded manner. And one of those prosecutors, Mary McGrath, had been assigned to defend the Ricky Jackson conviction.
When Mary met with Ed Vernon, she didn’t try to have him arrested or otherwise try to intimidate him. Rather, she listened to him. Carefully.
The hearing commenced in November 2014 with the testimony of Ed Vernon. Ed explained how he had lied as a child. He told how he had informed the police back in 1975 that he was lying, but how they screamed at him and threatened him to make him go forward with his testimony. And how he had lived with the burden of that lie for nearly forty years. Mary and her colleagues cross-examined Ed and questioned his story. But Ed held firm. Then Ricky Jackson testified. He said he was innocent and described his decades behind bars for a crime he didn’t commit. I felt that Ed’s and Ricky’s testimonies were both extremely compelling. In fact, their stories were so moving that they brought several spectators in the courtroom to tears. But I had no idea how the prosecutors or the judge viewed them.
After the testimony of the witnesses ended, the judge said that he would hear closing arguments after a lunch break. During the break, OIP staff attorney Brian Howe, who was in charge of the case, prepared for his closing argument, and we were all sick with anxiety over Ricky’s fate. We agonized over the judge’s facial expressions during the hearing, trying to guess how he had received the evidence that would determine how Ricky would spend his remaining years on earth—in prison, or as a free man.
When we returned to the courtroom at the predetermined time, the prosecutors and judge were nowhere to be seen. After thirty more minutes passed, there was still no sign of the prosecutors or the judge. We sat in the courtroom and waited, confused and exceedingly nervous.
After about forty-five minutes of waiting, the courtroom doors swung open and Mary and her team of prosecutors entered the courtroom. With them was the elected prosecutor—the head of the office. They entered the courtroom at the same time that the judge entered through his private door behind the bench, as if their entrances had been orchestrated. The prosecutors walked straight up to the bench and said something to the effect of, “We agree that Ricky Jackson is innocent and that a terrible injustice has occurred in this case. We are dismissing all the charges and agreeing that he may be set free.”
In all my years of doing postconviction innocence work, I have never been so shocked. Ricky looked up at the heavens and then began to cry, as did all of us on his team. The prosecutors and the judge continued to talk about mundane matters, such as the paperwork that would have to be done to complete the exoneration and how quickly Ricky could be released from custody. But none of us heard what they were saying. We just cried and hugged one another in stunned disbelief.
A few days later, Mary and her team agreed to financial compensation for Ricky, filing papers that once again declared that Ricky Jackson was innocent and that he deserved full compensation for the pain he had suffered at the hands of the State of Ohio.
I am still to this day in awe of what Mary and her team were able to do in Ricky Jackson’s case. I know from years of experience in this type of case that because of confirmation bias, tunnel vision, cognitive dissonance, dehumanization, and the bureaucratic prosecutorial mindset, it is hard for any prosecutor to evaluate postconviction innocence evidence objectively. That is true even when the evidence of innocence is rock-solid, as with DNA test results. The fact that they were able to make themselves step out of that role, to step away from all of the psychological pressures to confirm their office’s preconceived belief in Ricky’s guilt, and to look at Ricky’s case objectively and fairly without ironclad evidence of innocence, is a truly impressive human accomplishment. I don’t know that I could have done it when I was a prosecutor. I doubt it.
Immediately after Ricky was released, he said he had a very important thing to do. He asked Brian Howe for the phone number of Ed Vernon’s pastor, as the pastor was the person who had first notified us of Vernon’s agony and his desire to correct the tragic injustice he had helped perpetuate as a young boy. Brian gave Ricky the pastor’s phone number. Later, Ricky told us that he had called the pastor and asked him to arrange a meeting between Ricky and Ed Vernon at the pastor’s church. The pastor set it up. On the day of the meeting, Ricky saw Vernon enter the chapel in the same way he had appeared during his courtroom testimony a few days earlier—a broken, bent-over, and dispirited man, worn and weary from living with a lie that had sent Ricky and two other innocent men to death row nearly forty years earlier. On the stand at Ricky’s hearing, Vernon had called it “the lie from the pits of hell.”
When Vernon entered the chapel that day, Ricky walked up to him, hugged him, and whispered in his ear, “I forgive you. I want you to live a good life.” Ricky then continued to hold him while Vernon sobbed in his arms. Ricky later told me that as Vernon sobbed, he became lighter in Ricky’s arms, and Vernon gradually began to stand more upright. A physical transformation occurred before Ricky’s eyes, as Vernon’s burden began to dissipate.
Ricky later explained to me that he had lived those thirty-nine years in prison hating Ed Vernon. He had put the “enemy image” on Vernon (though he didn’t use that term), and imagined him living a life of freedom, blessed with a wife, children, a good job, and all the things that Ricky had been so painfully deprived of.
But Ricky had also studied the great philosophers and all the major religions in prison, and in the process he had internalized their lessons of open-mindedness and open-heartedness. He had come to understand that there are always two sides to every story, and to recognize that every human being, no matter what they have done, is worthy of being treated with decency and respect, and to be forgiven. With that attitude, Ricky challenged himself to overcome his greatest bias. A bias greater than most of us have ever faced in our lifetimes. Ricky challenged himself to see the world—to see Ed Vernon—in a way that questioned his decades of hardened hatred. His decades of close-minded certainty. Ricky wanted to do this not only for Ed Vernon, but for himself. He wanted to see if he could instantly impart true justice to Ed Vernon in a way that our criminal justice system had been unable to impart to Ricky Jackson for thirty-nine long years.
The criminal justice system is beginning to change for the better, to correct some of its flaws. Prosecutor Mary McGrath’s act of freeing Ricky Jackson with an open mind and open heart is a testament to the power of this change. But we must continue to speak, write, share, educate, and inform. As exoneree Dean Gillispie would say, we must keep “screamin’ and hollerin’.” And we must encourage others to join the cause to create a groundswell—a critical mass that will cause a shift in societal thinking such as we have seen with other social justice movements in recent decades. It is starting now. The shift is still in its embryonic form. But if we are not vigilant and steadfast going forward, then change will die on the vine.