Linda Green­house

The New York Review of Books - - Contents - Linda Green­house

Anatomy of In­no­cence: Tes­ti­monies of the Wrong­fully Con­victed edited by Laura Cald­well and Les­lie S. Klinger and three other books about wrong­ful con­vic­tions

Anatomy of In­no­cence: Tes­ti­monies of the

Wrong­fully Con­victed edited by Laura Cald­well and Les­lie S. Klinger, with an in­tro­duc­tion by Scott Turow and Barry Scheck. Liveright, 260 pp., $26.95

Blind In­jus­tice:

A For­mer Pros­e­cu­tor Ex­poses the Psy­chol­ogy and Pol­i­tics of Wrong­ful Con­vic­tions by Mark God­sey.

Univer­sity of Cal­i­for­nia Press, 254 pp., $29.95

The Ca­daver King and the Coun­try Den­tist:

A True Story of In­jus­tice in the Amer­i­can South by Radley Balko and

Tucker Car­ring­ton, with a fore­word by John Gr­isham. PublicAf­fairs, 391 pp., $28.00

He Calls Me by Light­ning:

The Life of Caliph Wash­ing­ton and the For­got­ten Saga of Jim Crow, South­ern Jus­tice, and the Death Penalty by S. Jonathan Bass.

Liveright, 413 pp., $26.95

Week af­ter week, the story un­folds be­fore our eyes: “Wrong­fully Im­pris­oned, Groundskeeper Re­turns” (The New York Times, March 28, 2018); “$10 Mil­lion for Man Wrongly Con­victed of Mur­der­ing Par­ents” (The New York Times, April 21, 2018); “Philadel­phia Man Freed Af­ter Serving 11 Years for Mur­der He Did Not Com­mit” (The New York Times, May 16, 2018). Since 1989, when what’s known to­day as the in­no­cence move­ment started gain­ing mo­men­tum, over 2,200 con­victed peo­ple have been ex­on­er­ated in the United States, ac­cord­ing to the Na­tional Reg­istry of Ex­on­er­a­tions.

That sug­gests, of course, that a wor­ri­some num­ber of guilty peo­ple may never have been caught (although about half of DNA ex­on­er­a­tions ac­tu­ally re­sult in the con­vic­tion of the true per­pe­tra­tor). Es­ti­mates of wrong­ful con­vic­tions range be­tween 2 and 5 per­cent, mean­ing that as many as 100,000 in­no­cent peo­ple may be sit­ting in the coun­try’s vast prison net­work. Death row ex­on­er­a­tions have, at last count, reached 162. The im­age of these ex­onerees (an awk­ward word that en­tered the dic­tionary only in 2002) blink­ing in the sun­light af­ter years or decades in prison is touch­ing, trou­bling, and in­fu­ri­at­ing. By now we know all this. The ques­tion is how and why wrong­ful con­vic­tions oc­cur. The four books un­der re­view are among the lat­est to tackle as­pects of the sub­ject, through anec­dote, per­sonal tes­ti­mony, and metic­u­lous his­tor­i­cal re­con­struc­tion. In dif­fer­ent ways, each of the four con­trib­utes to a deeper un­der­stand­ing of the prob­lem in its sev­eral di­men­sions: poor po­lice work, un­re­li­able wit­nesses, pros­e­cu­to­rial mis­con­duct, ju­ror gulli­bil­ity, de­fense inad­e­quacy, bad foren­sics pass­ing for sci­ence, racism, and more. Among the four books, the most pow­er­ful nar­ra­tive, S. Jonathan Bass’s He Calls Me by Light­ning, is not about an ex­on­er­a­tion and lacks a happy end­ing. It re­counts the four­teen years a young, barely lit­er­ate black man, Caliph Wash­ing­ton, spent im­pris­oned in Alabama, most of the time on death row, for killing a white po­lice of­fi­cer in what was al­most surely not an act of in­ten­tional homi­cide. Re­leased in 1971 by a writ of habeas cor­pus from a state court, Wash­ing­ton spent the re­main­ing thirty years of his life rein­dicted and un­der threat of an­other mur­der trial; hav­ing mis­laid cru­cial ev­i­dence, pros­e­cu­tors couldn’t move for­ward, but nei­ther would they give up as long as Wash­ing­ton walked the earth a free man. In this con­vo­luted but well-told tale, the most pro­found anal­y­sis may have come from Wash­ing­ton him­self be­fore he died in 2001: “My prob­lem be­gan when I was born.”

Any ef­fort to tackle the sub­ject of wrong­ful con­vic­tions faces the high bar set by two books pub­lished ear­lier this decade. One is Bryan Steven­son’s best­selling Just Mercy: A Story of Jus­tice and Re­demp­tion (2014), a first-per­son ac­count by a vi­sion­ary death-penalty de­fense lawyer of his ef­forts, not all of them suc­cess­ful, on be­half of a se­ries of hope­less and de­spised clients. Steven­son, a MacArthur Fel­low and the founder of the Equal Jus­tice Ini­tia­tive, cen­ters the book around his rep­re­sen­ta­tion of Wal­ter McMil­lian, a black man who had the temer­ity to be­come sex­u­ally in­volved with a white woman in Mon­roeville, Alabama, and soon found him­self framed and con­demned to death for the mur­der of the eigh­teenyear-old daugh­ter of a prom­i­nent lo­cal fam­ily. Steven­son saved his client and de­scribed how, years later, he spoke at McMil­lian’s funeral:

I ex­plained that we all owed Wal­ter some­thing be­cause he had been threat­ened and ter­ror­ized, wrongly ac­cused and wrongly con­demned, but he never gave up .... He had stood strong in the face of in­jus­tice, and his ex­on­er­ated wit­ness might just make the rest of us a lit­tle safer, slightly more pro­tected from the abuse of power and the false ac­cu­sa­tions that had al­most killed him.

The 1986 mur­der of Ronda Mor­ri­son re­mains un­solved.

The other ear­lier book, Dan Si­mon’s In Doubt: The Psy­chol­ogy of the Crim­i­nal Jus­tice Process (2012), is much less well known but in its way just as valu­able. Si­mon, who holds a joint ap­point­ment in law and psy­chol­ogy at the Univer­sity of South­ern Cal­i­for­nia, ap­plied the tools of ex­per­i­men­tal psy­chol­ogy to un­der­stand how the two dis­tinct but in­ter­lock­ing halves of the crim­i­nal jus­tice process—the in­ves­ti­ga­tion and the trial—break down. A cen­tral in­sight of the book is that be­cause the trial it­self is un­likely to re­pair any flaws in the ev­i­dence-gath­er­ing process, it is im­por­tant to make that process as trans­par­ent as pos­si­ble. Record­ing all in­ter­ac­tions with wit­nesses in real time, for ex­am­ple, will guard against the fail­ings of mem­ory:

Over the nat­u­ral course of the process, tes­ti­mony of­ten changes, as pre­vi­ously un­re­ported de­tails come to be in­cluded in wit­nesses’ state­ments, nar­ra­tives are crys­tal­lized, gaps get filled, am­bi­gu­ity fades away, and ten­ta­tive­ness is re­placed by cer­ti­tude.

Of course, the great ma­jor­ity of crim­i­nal pros­e­cu­tions to­day are re­solved by plea bar­gains, not tri­als. More ac­cu­rate and trans­par­ent ev­i­dence, Si­mon main­tains, will make plea bar­gains “fairer and bet­ter cal­i­brated with the de­fen­dant’s ac­tual guilt.” On any shelf of re­cent books about crim­i­nal jus­tice, these two would serve as book­ends, one pas­sion­ate and anec­do­tal, the other aca­demic and an­a­lyt­i­cal. Where do the more re­cent four fit in? The ed­i­tors of Anatomy of In­no­cence in­vited well-known writ­ers of mys­ter­ies and po­lice fic­tion, in­clud­ing Sara Paret­sky, Lee Child, and Brad Parks, to write about wrong­fully con­victed peo­ple. Each chap­ter con­cludes with an ed­i­tors’ note pro­vid­ing back­ground for the flaw in the crim­i­nal jus­tice sys­tem that each story re­vealed: with­hold­ing ev­i­dence to which the de­fense was legally en­ti­tled, as in the case of Al­ton Lo­gan, con­victed of a mur­der he didn’t com­mit based on faulty iden­ti­fi­ca­tion by a wit­ness; in­ad­e­quate de­fense rep­re­sen­ta­tion, as in the case of An­tione Day, wrongly con­victed of mur­der af­ter his lawyer failed to in­ter­view al­ibi wit­nesses.

The idea for this book sur­passed its ex­e­cu­tion: cram­ming four­teen sto­ries into 260 pages means that the in­di­vid­ual ac­counts are so trun­cated as to make it hard to discern what ac­tu­ally caused the prison gates to open. The story of Ginny Le­fever, wrongly con­victed of mur­der­ing her es­tranged hus­band, who had ac­tu­ally com­mit­ted sui­cide, of­fers an ex­am­ple. The twelvepage ac­count in­cludes many para­graphs about Le­fever’s ef­fort to lose weight in prison (“Ginny sweated. She wad­dled. She grunted and groaned”) while leav­ing the reader to guess how she man­aged to per­suade a judge to grant the pe­ti­tion for habeas cor­pus that re­leased her from prison af­ter twenty years.

The

Ca­daver King and the Coun­try Den­tist is sim­i­larly frus­trat­ing. The ti­tle refers to Steven Hayne, a Mis­sis­sippi county coro­ner, and Michael West, a den­tist who spe­cial­ized in foren­sic odon­tol­ogy—bite-mark anal­y­sis. Of­ten work­ing in tan­dem, the two were ex­pert wit­nesses for the pros­e­cu­tion in Mis­sis­sippi death penalty cases for twenty years. The book tells the sto­ries of two pros­e­cu­tions gone wrong in their hands. In dizzy­ing fash­ion, it tog­gles be­tween these cases, oc­ca­sional oth­ers, and re­flec­tions on the qual­ity of Mis­sis­sippi jus­tice:

To fully un­der­stand the story of Kennedy Brewer, Levon Brooks, and many other sim­i­lar cases, it’s im­por­tant to ap­pre­ci­ate the pli­a­bil­ity of Mis­sis­sippi’s medi­cole­gal sys­tem—how sher­iffs, po­lice chiefs, and pros­e­cu­tors have ma­nip­u­lated it to achieve a par­tic­u­lar end. The sys­tem was de­signed this way. Some­times it solved crimes, but that wasn’t nec­es­sar­ily its chief pur­pose. In­stead, its pur­pose has al­ways been to fa­cil­i­tate law en­force­ment’s de­sires as re­flected by the pre­vail­ing sta­tus quo.

The book has two coau­thors, Radley Balko, a writer for The Wash­ing­ton Post, and Tucker Car­ring­ton, di­rec­tor of the In­no­cence Project at the Univer­sity of Mis­sis­sippi School of Law, and it may be that they were un­able to achieve the seam­less col­lab­o­ra­tion nec­es­sary to sus­tain a co­her­ent nar­ra­tive. In any

event, its value lies in show­ing how vul­ner­a­ble the crim­i­nal jus­tice sys­tem is to ma­nip­u­la­tion through junk sci­ence. The bite-mark anal­y­sis that was Michael West’s spe­cialty has long been re­pu­di­ated by ac­tual ex­perts, and was highly ques­tion­able even when he was mak­ing his liv­ing from it in the 1990s. In one of the book’s main cases, the wrong­ful con­vic­tion of Levon Brooks for the mur­der of a three-year-old girl, Court­ney Smith, Dr. West claimed that his bite anal­y­sis had ruled out a dozen other sus­pects, and he tes­ti­fied at the trial that “I have no doubt that the teeth of Levon Brooks did and in­deed leave the bite mark on the wrist of Court­ney Smith.”

In fact, the other sus­pects had al­ready been ruled out by the pros­e­cu­tion, and the wounds on the girl’s body, which had been un­der­wa­ter for thir­tysix hours, were not bite marks at all. Brooks, con­victed and sen­tenced to life in prison, was ex­on­er­ated af­ter six­teen years when an­other man, iden­ti­fied by DNA ev­i­dence as the per­pe­tra­tor of an­other mur­der at about the same time, con­fessed to the crime. How could some­thing have gone so wrong? To the au­thors, the ex­pla­na­tion lies deep in Mis­sis­sippi’s his­tory:

The com­mon de­nom­i­na­tor in these cases is the fa­cil­i­ta­tion of those in power, whether in cov­er­ing up a lynch­ing, fi­nally bring­ing to trial a civil rights–era mur­der case, or merely con­vict­ing the man po­lice and pros­e­cu­tors were con­vinced com­mit­ted the crime. In this sense, Mis­sis­sippi’s death in­ves­ti­ga­tion sys­tem rarely failed. In­stead it tended to per­form ex­actly as in­tended.

Mark

God­sey, the au­thor of Blind In­jus­tice, is a for­mer fed­eral pros­e­cu­tor who is now a law pro­fes­sor and co­founder of the Ohio In­no­cence Project. The sub­ti­tle of his book is “A For­mer Pros­e­cu­tor Ex­poses the Psy­chol­ogy and Pol­i­tics of Wrong­ful Con­vic­tions,” and God­sey ex­plains the ori­gin of his book as fol­lows:

From my perch as a pros­e­cu­tor turned in­no­cence ad­vo­cate, I have wit­nessed bizarre hu­man be­hav­ior that has left me both fas­ci­nated and shaken. I have seen how wit­nesses get it wrong but adamantly be­lieve they are right. How wit­nesses have their sto­ries twisted and re­ar­ranged by the po­lice and pros­e­cu­tors, with­out even re­al­iz­ing they have been ma­nip­u­lated and with­out the po­lice and pros­e­cu­tors re­al­iz­ing they have al­tered wit­nesses’ state­ments to fit their the­ory of the case. How pros­e­cu­tors, po­lice, judges, and de­fense at­tor­neys de­velop tun­nel vi­sion and make ir­ra­tional case-de­ci­sions be­cause they refuse—no mat­ter the ev­i­dence—to ques­tion their ini­tial in­stincts. How pol­i­tics and in­ter­nal pres­sures have caused peo­ple in the sys­tem to act un­justly and un­fairly, all the while in de­nial about their true mo­ti­va­tions. How they have be­come stub­born and ar­ro­gant about their abil­ity to di­vine the truth, while they are in de­nial about their hu­man lim­i­ta­tions. And I have seen how these hu­man flaws have re­sulted in tragic, gutwrench­ing in­jus­tices.

God­sey cites Dan Si­mon’s In Doubt and is clearly in­formed by that book in his dis­cus­sion of how con­fir­ma­tion bias—the ten­dency to be­lieve what one wants to hear—in­fects the crim­i­nal jus­tice sys­tem:

For ex­am­ple, detectives tend to be­lieve wit­nesses who tell them sto­ries that con­firm their own be­liefs about a case. Wit­nesses who give con­tra­dic­tory in­for­ma­tion are seen as ly­ing or mis­taken and are of­ten pushed to the way­side.

God­sey’s chap­ters de­scribe the psy­cho­log­i­cal and sys­temic el­e­ments that re­in­force each other and all too eas­ily de­feat the goals of jus­tice: “Blind De­nial,” “Blind Am­bi­tion,” “Blind Bias,” “Blind Mem­ory,” “Blind In­tu­ition,” “Blind Tun­nel Vi­sion.” In ad­di­tion to the con­fir­ma­tion bias that leads in­ves­ti­ga­tors to see what they want to see, there are the tricks that mem­ory plays, the sug­gestibil­ity of eye­wit­nesses, the bu­reau­cratic al­lergy to ad­mit­ting er­ror, and just plain “ad­min­is­tra­tive evil.” His fi­nal chap­ter, “See­ing and Ac­cept­ing Hu­man Lim­i­ta­tions,” ar­gues that in or­der to re­form a sys­tem that “con­sis­tently re­sists in­tro­spec­tion and change,” it’s nec­es­sary to com­pen­sate for hu­man na­ture rather than fight it—by tak­ing much more care with eye­wit­ness iden­ti­fi­ca­tion and mak­ing sure that in­ter­ro­ga­tions are video­taped from be­gin­ning to end, for ex­am­ple. The flood of wrong­ful con­vic­tions is “in­dica­tive of a dis­as­ter. A mass dis­as­ter.” No one read­ing any of these books is likely to dis­agree.

In his open­ing pages, God­sey tells us that he will avoid dis­cussing the “com­pli­cated and per­va­sive” prob­lem of “sys­temic racism” be­cause it is ex­ten­sively treated else­where and he wants to fo­cus on ad­di­tional, less ap­pre­ci­ated causes for wrong­ful con­vic­tions. There is, how­ever, am­ple ev­i­dence that racism is a strong risk fac­tor, with black peo­ple sub­stan­tially more likely to be wrongly con­victed than whites.

S.

Jonathan Bass took the ti­tle of He Calls Me by Light­ning from a Ne­gro spir­i­tual: “My Lord, He calls me. He calls me by light­ning. He calls me by thun­der. The trum­pet sounds within my soul.” Caliph Wash­ing­ton, to­ward the end of his blighted life, be­came a min­is­ter. Bass’s par­ents grew up in Besse­mer, Alabama, a small min­ing and steel­mak­ing city on the out­skirts of Birm­ing­ham, as did Wash­ing­ton. Like Wash­ing­ton, the Bass fam­ily was poor, but priv­i­leged due to its race. Bass skill­fully in­ter­weaves the story of the city with the life of one of its most hum­ble res­i­dents, who in a saga last­ing close to fifty years never re­ceived any­thing re­sem­bling jus­tice. In 1970, at the last of Wash­ing­ton’s three tri­als, one of his lawyers cross-ex­am­ined the po­lice de­tec­tive who had con­ducted the ini­tial in­ter­ro­ga­tion af­ter Wash­ing­ton’s ar­rest thir­teen years ear­lier. Had the de­tec­tive ad­vised the sus­pect of his right to re­main silent or to con­sult a lawyer? “I didn’t tell him noth­ing,” the de­tec­tive an­swered.

The Supreme Court’s Mi­randa de­ci­sion, handed down in 1966, came too late for Wash­ing­ton. The Supreme Court, in fact, is barely men­tioned in any of the four books, although Bryan Steven­son, who ap­pears fre­quently be­fore the Supreme Court in death penalty cases, dis­cusses its cur­rent ju­rispru­dence ex­ten­sively in Just Mercy. Be­gin­ning in the 1970s and at an ac­cel­er­at­ing pace since then, the jus­tices have made it ever more dif­fi­cult for in­mates con­victed in state courts to get be­fore a fed­eral judge to chal­lenge the va­lid­ity of a con­vic­tion or con­sti­tu­tion­al­ity of a sen­tence. The Supreme Court’s mo­ti­va­tion de­rives in large mea­sure from its view of the nar­rowly re­stricted re­spon­si­bil­ity of the fed­eral courts in su­per­vis­ing the qual­ity of jus­tice meted out by the states.

In ad­di­tion, a ma­jor­ity of to­day’s Court seems to agree with a state­ment Jus­tice San­dra Day O’Con­nor made in a con­cur­ring opin­ion twenty-five years ago in Her­rera v. Collins (1993), ex­plain­ing why the court was cor­rect in re­fus­ing to in­ter­vene in a Texas death penalty case on be­half of an in­mate who claimed he was ac­tu­ally in­no­cent:

Our so­ci­ety has a high de­gree of con­fi­dence in its crim­i­nal tri­als, in no small part be­cause the Con­sti­tu­tion of­fers un­par­al­leled pro­tec­tions against con­vict­ing the in­no­cent.

Back then, the state­ment seemed dis­cor­dant. Now it sounds will­fully naive.

Caliph Wash­ing­ton ar­riv­ing at the Jef­fer­son County Jail in Besse­mer, Alabama, es­corted by Deputy Sher­iff Clyde Mor­ris and Po­lice Chief Ge­orge Bar­ron, 1957

Caliph Wash­ing­ton leav­ing jail for the first time in thir­teen years, with his lawyer Orzell Billings­ley, a week be­fore his third trial, April 1970

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