Mistakes Were Made - Carol Tavris [64]
With every innocent person freed from years in prison through DNA testing, the public can almost hear the mental machinations of prosecutors, police, and judges who are busy resolving dissonance. One strategy is to claim that most of those cases don’t reflect wrongful convictions but wrongful pardons: Just because a prisoner is exonerated doesn’t mean he or she is innocent. And if the person really is innocent, well, that’s a shame, but wrongful convictions are extremely rare, a reasonable price to pay for the superb system we already have in place. The real problem is that too many criminals get off on technicalities or escape justice because they are rich enough to buy a high-priced defense team. As Joshua Marquis, an Oregon district attorney and something of a professional defender of the criminal-justice system, put it, “Americans should be far more worried about the wrongfully freed than the wrongfully convicted.”7 When the nonpartisan Center for Public Integrity published its report of 2,012 cases of documented prosecutorial misconduct that had led to wrongful convictions, Marquis dismissed the numbers and report’s implication that the problem might be “epidemic.” “The truth is that such misconduct is better described as episodic,” he wrote, “those few cases being rare enough to merit considerable attention by both the courts and the media.”
When mistakes or misconduct occur, Marquis added, the system has many self-correcting procedures in place to fix them immediately. In fact, he worries, if we start tinkering with the system to make corrections designed to reduce the rate of wrongful convictions, we will end up freeing too many guilty people. This claim reflects the perverted logic of self-justification. When an innocent person is falsely convicted, the real guilty party remains on the streets. “Alone among the legal profession,” Marquis claims, “a prosecutor’s sole allegiance is to the truth—even if that means torpedoing the prosecutor’s own case.”8 That is an admirable, dissonance-reducing sentiment, one that reveals the underlying problem more than Marquis realizes. It is precisely because prosecutors believe they are pursuing the truth that they do not torpedo their own cases when they need to; because, thanks to self-justification, they rarely think they need to.
You do not have to be a scurrilous, corrupt DA to think this way. Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University’s law school, has observed dissonance at work among prosecutors whom he considers “fundamentally good” and honorable people who want to do the right thing. When one exoneration took place, Jack O’Malley, the prosecutor on the case, kept saying to Warden, “How could this be? How could this happen?” Warden said, “He didn’t get it. He didn’t understand. He really didn’t. And Jack O’Malley was a good man.” Yet prosecutors cannot get beyond seeing themselves and the cops as good guys, and defendants as bad guys. “You get in the system,” Warden says, “and you become very cynical. People are lying to you all over the place. Then you develop a theory of the crime, and it leads to what we call tunnel vision. Years later overwhelming evidence comes out that the guy was innocent. And you’re sitting there thinking, ‘Wait a minute. Either this overwhelming evidence is wrong or I was wrong—and I couldn’t have been wrong because I’m a good guy.’ That’s a psychological phenomenon I have seen over and over.” 9
That phenomenon is self-justification. Over and over, as the two of us read the research on wrongful convictions in American history, we saw how self-justification can escalate the likelihood of injustice at every step of the process from capture to conviction. The police and prosecutors use methods gleaned from a lifetime of experience to identify a suspect and build a case for conviction. Usually, they are right. Unfortunately, those same methods increase their risks of pursuing the wrong