Don’t Look Back: Why the Innocent Sometimes Stay in Jail
Twenty-five years ago, psychologist James Reason proposed that the image of aligned slices of Swiss cheese could be a good way to visualize system failures such as jet engine explosions, plane crashes, and crashes. of ships.
According to Reason’s metaphor, hazards are prevented from causing loss in any complex system by a series of barriers. Every barrier has unintended weaknesses, or holes – there’s the similarity to Swiss cheese.
Raison amended his argument repeatedly, and there’s plenty of evidence that his “Diagram of Swiss cheeseis understood differently by different people. But Reason’s image provides the common language – or, at least, the starting point – for many discussions of tragedies in industry, aviation and medicine.
The openings of the screens move. The holes in the protective “slices” open and close unpredictably. Some represent the active errors and violations of humans; others represent latent weaknesses in the design or construction of the system.
When there is a hole in each screen and all the holes are aligned, but only when each shield has a hole and all the holes are aligned, danger passes through this defense-in-depth arrangement and reaches the patient, or passenger, and causes harm.
Reason’s model has been strongly critical by the contemporary authors of Safety, but it has the advantage of drawing attention to the system as a system and moving away from individual “bad apples”.
It focuses on chance rather than deliberate action in the genesis of errors.
Do not look back
What does the Swiss cheese diagram look like when the “risk” involved is the wrongful conviction of an innocent person? One who destroys the life of an accused, leaves the real perpetrator free to find other victims and deceives the victim of the crime from the justice he deserves?
A folkloric version of the Swiss cheese diagram dominates thinking in criminal justice. The danger – a wrongful conviction, for example – must pass through a police screen, a forensic screen, a prosecution screen, a grand jury screen, a defense screen, a jury screen and, ultimately, screens court of appeal and collateral review, before it takes final effect.
Two excellent recent publications provide opportunities to engage Reason’s model by examining the incidence of wrongful convictions and efforts to correct them.
Professor of Law at Northeastern University Daniel Medweddelivers a remarkably clear and readable analysis in his new book Rod: Why the Innocent Can’t Get Out of Jail. Medwed compiles a complete catalog of components and presents the diagram.
Investigative journalist Radley Balkowho was fired by the Washington Post (perhaps for sharing too many uncomfortable truths over the years) settled down at Substack. In this new place, he carefully exposes the story effort to prove the innocence of Charlie Vaughan, an illiterate Arkansas prisoner serving a life sentence for a murder to which another man – who said he did not even know Vaughan – confessed.
Indeed, Medwed sets up the chessboard and explains the rules; Balko plays through a game with very specific details.
The case of Charlie Vaughan and the many cases that Medwed uses to illustrate his investigation of procedural design all show (as I have been arguing for a while) that a wrongful conviction is an error in the system.
Both authors unroll a legion of bad cops, misguided eyewitnesses, coercive prosecutors, sleepy defenders, judges who see no evil, bad medical examiners and other weaknesses – many gaping holes in many installments. cheese.
But they also make it clear that no single incompetent or dishonest practitioner or faulty technique is ever independently sufficient to bring about disaster – that every wrongful conviction is an “organizational accident”.
Take any case that Medwed or Balko sums up and lay it on Reason’s diagram and you’ll see why a “bad apple” hunt for a single key or some other faulty component – for what security researchers derisively call “the eureka part” – will always leave you far from understanding how it happened and how it can happen again.
The holes in the investigation slice widen the holes in the litigation slice. But the perceived demands of the litigation installment are themselves a source of holes in the survey product.
Everyone’s job affects everyone’s job, and all workers are under pressure from resource shortages, caseload gluts, media and political demands, and this looming list of cases that they know will inevitably arrive tomorrow.
All cheese, no holes
But Medwed and Balko also provide an opportunity to use the Swiss cheese diagram to assess the performance of the criminal justice system in unraveling a wrongful conviction once it has occurred.
They show that the danger that the architects and supporters of the system in the courts and legislatures really fear is an embarrassing one. exonerationwith the control that implies.
Medwed provides a full account of the rococo range of devices designed to prevent this terrifying possibility from becoming a reality.
It outlines the barriers – contemporary objection rules, waiver rules, statutes of limitations, traditions of deference, burdens of proof, inadequate provision of attorneys, lack of medico-legal resources, etc. – who stand between a claim of innocence and freedom.
And Medwed makes it clear that this succession of formidable defenses, stretching from here to the horizon, blocks meritorious claims of innocence as surely as it would block false ones.
Radley Balko, for his part, invites the reader into the maddening experience of trying to navigate a course that leads Charlie Vaughan’s case through the holes in the barriers.
Balko shows that the barriers between wrongful conviction and exoneration are, in fact, all cheese, no hole – that there are always multiple barriers, and all that is needed is a strong procedural barrier (or an opening slightly misaligned) to keep an innocent man in prison.
Yet Medwed and Balko’s valuable catalogs of procedural barriers should not obscure a deeper reality.
There is a fatal mismatch between the mechanism for reviewing legal error and the basic etiology (mode of causation) of wrongful convictions in a complex system.
The legal architecture expresses the belief of its builders that a big mistake needs a big cause, a “eureka part” – that it needs a substantial domino that inevitably falls and topples the next domino. It requires defendants to present evidence of material error in a linear, sequential, Newtonian world of cause and effect.
In fact, wrongful convictions do not emerge from within the components, but rather from the interactions between the components; not grand causes with automatic effects, but rather conditions and influences that do not dictate outcomes, but bend probabilities.
Structurally, the judiciary is blind to this reality.
Fragility as a goal
Yet the procedural thickets that Medwed and Balko anatomize shed light on something just as crucial.
If you’re operating a high-impact system where potential failures are catastrophic, what you fear more than anything else is “brittleness,” a state in which every slippage or error automatically and inevitably results in disaster.
If you hope to run a secure system, you want the opposite of fragility: you want resilience—“graceful stretch“- the ability to absorb slip-ups and surprises, the ability to adapt when the unexpected pushes your system to its limits.
Medwed and Balko show that our criminal system, far from abhorring fragility, avidly seeks, even under the label of “finality”, fetishism.
A mistake is made – a cop forces a confession, a defender doesn’t object, a jury misinterprets a story to convict, a filing deadline is missed, an innocent is convicted – the mistake must stay made.
Over the years, new court decisions and new laws, such as the Anti-Terrorism and Effectiveness of the Death Penalty Act 1996with his evisceration of habeas corpus, not only tolerated frailty; they increased it
Why? Because the operators of the system consciously desire wrongful convictions? I do not think so.
Typically, the people who run the criminal justice system are just trying to get through their days in a system under pressure, and the security they care about during those days is theirs. Barriers against exemption protect the comfort and false prestige of the operators of the system, not the public.
No ordinary citizen believes that an innocent person should spend life in jail because their attorney missed the filing deadline.
“We don’t want to know”
More than 25 years ago, Peter Neufeld and Barry Scheck declared that the wrongful convictions we are experiencing could only be the tip of a gigantic submerged iceberg. Medwed and Balko both confirm this fear.
Realizing the truth of this, the system replied, “Don’t look at that iceberg.
Beyond the individual human dramas multiplied by this self-protective obsession with “finality”, there is a stubborn refusal to learn.
We should want more exonerations, not fewer, not just because wrongful convictions are tragedies, but because each one that is uncovered offers a treasure trove of learning about how to avoid future disasters if we choose to watch.
(from Baltimore review of sentinel events Malcolm Bryant’s wrongful conviction is just one prime example of the power of this forward-looking accountability.)
James Reason believed that error is part of the human condition and he recognized that we cannot change the human condition.
But that doesn’t mean we should Deny the human condition by deploying tricks like “finality”.
We can change the conditions in which humans work.
We can show everyone in the criminal justice their individual responsibility for a just collective outcome and how to achieve it.
But only if we have the courage to face the facts.
James M. Doyle is a Boston defense attorney and author, and a regular columnist for The Crime Report. He welcomes comments from readers.