Preventing Wrongful Convictions

In today's Guardian, author Scott Turow describes his transformation from a death penalty "agnostic" to opponent:

For most Americans, the death penalty debate goes no further than asking whether they "believe" in capital punishment. Many death penalty opponents who root their position in religious or spiritual convictions treat those who favour death sentences as barbarians or wanton sinners. Supporters of capital punishment frequently characterise those on the other side as bleeding hearts and hypocrites who would not feel the same way were it their loved ones who had been murdered. Almost no one feels detached about capital punishment.

But when people asked me, I referred to myself as a death penalty agnostic. Every time I thought I was prepared to stake out a position, something would drive me back in the other direction. I still hung in a sort of ethical equilibrium, afraid to come down on either side of the question of whether capital punishment was actually right or wise, when in 1991 I was asked to take on the pro bono appeal of Alejandro Hernandez. By then I was in private practice as a partner in the Chicago office of Sonnenschein Nath and Rosenthal, a large national firm.

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When Hernandez's trial lawyers approached me, they made a straightforward pitch. Their client was innocent. I didn't believe it. I knew how the system worked. Convict an innocent man once? Not likely, but possible. Twice? Never. And even if it were true, I couldn't envision convincing an appeals court to overturn the conviction a second time. Illinois elects its state court judges, and this was an infamous child murder.

He then describes how he helped establish that Hernandez was innocent, overcoming an incredible institutional resistance to that possibility. He concluded from his experience that "If law enforcement professionals respond in this fashion to the emotion alism of grave crimes, it is foolhardy to expect anything better from the lay people who sit on juries", and

The case demonstrated to me the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes. The notion of a 10-year-old girl being overpowered by an intruder and dragged from her home, sexually tortured, and then beaten to death is so revolting that I used to explain Alex's and Rolando's convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant's seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt.

Turow is, unquestionably, a very bright and accomplished man. As a law student at Harvard and as an Assistant United States Attorney, he certainly would have had opportunity to think about the death penalty, and I think his admitted former agnosticism is a reflection of a long-term struggle over competing arguments for and against execution.

I respect his willingness to now speak out about the lessons he learned both as a prosecutor and since he left that position, and how new information and experiences have changed his perspectives. In addition to his reexamination of the death penalty, he recently described his surprise at his discovery that eyewitness testimony, which he accepted with few reservations while serving as a prosecutor, is notoriously unreliable. He provides an example:

False confessions are one thing. False eyewitness testimony is another. As soon as you say false testimony, it sounds like people are perjuring themselves. Anything but. The experience of witnessing a crime is so extraordinary that our perceptions basically fail and the memory then fills in on the back end. People are highly suggestible and they then end up with highly concrete memories of what happened.

My favorite example is that on the day of September 11th, I happened to have taken off from Boston, and my editor, who knew that, was looking around fairly desperately for me. He tracked me down in Chicago and then said: "This is terrible. I was sitting there and I saw the second plane hit the second tower. You know, it was a little two-engine private plane." And he'd been so busy trying to find his friends and make sure everybody was okay that he hadn't listened to the news reports. And I was like: "John, that's not right." "Oh no," he said, "I saw it." And that indeed was his memory.

Where do you learn that lesson? "You'll learn it in the public defender's office, hopefully in the prosecutor's office. You will not learn about it in most law schools." There should not be a "hopefully" in that statement - prosecutors should learn about the type of institutional problems which lead to miscarriages of justice, and they should learn of the vagaries of eyewitness testimony. We are sometimes too quick to shrug our shoulders at miscarriages of justice - "mistakes happen" - without any effort to learn the very valuable lessons which can come from examining how and why those mistakes occurred. I hope that some prosecutors are reading Turow's latest works.

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