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By Root 1191 0

often find themselves in the real-world equivalent of a justification-of-effort experiment. They have selected this case out of many because they are convinced the suspect is guilty and that they have the evidence to convict. They often have invested many months on a case. They have worked intensely with police, witnesses, and the victim’s shattered, often vengeful family. In the case of crimes that have roused public emotions, they are under enormous pressure to get a conviction quickly. Any doubts they might have are drowned in the satisfaction of feeling that they are representing the forces of good against a vile criminal. And so, with a clear conscience, prosecutors end up saying to a jury: “This defendant is subhuman, a monster. Do the right thing. Convict.” Occasionally they have so thoroughly convinced themselves that they have a monster that they, like the police, go too far: coaching witnesses, offering deals to jailhouse informants, or failing to give the defense all the information they are legally obliged to hand over.

How, then, will most prosecutors react when, years later, the convicted rapist or murderer, still maintaining innocence (as, let’s keep in mind, plenty of guilty felons do), demands a DNA test? Or claims that his or her confession was coerced? Or produces evidence suggesting that the eyewitness testimony that led to conviction was wrong? What if the defendant might not be a monster, after all that hard work to convince themselves and everyone else that he is? The response of prosecutors in Florida is typical. After more than 130 prisoners had been freed by DNA testing in the space of fifteen years, prosecutors decided they would respond by mounting a vigorous challenge to similar new cases. Wilton Dedge had to sue the state to have the evidence in his case retested, over the fierce objections of prosecutors who said that the state’s interest in finality and the victim’s feelings should supersede concerns about Dedge’s possible innocence. 36 Dedge was finally exonerated and released.

That finality and the victim’s feelings should preclude justice seems an appalling argument by those we entrust to provide justice, but that’s the power of self-justification. (Besides, wouldn’t the victims feel better if the real murderer of their loved one had been caught and punished?) Across the country, as DNA testing has freed hundreds of prisoners, news accounts often include a quote or two from the prosecutors who originally tried them. For example, in Philadelphia, District Attorney Bruce L. Castor Jr. was asked by reporters what scientific basis he had for rejecting a DNA test that exonerated a man who had been in prison for 20 years. He replied, “I have no scientific basis. I know because I trust my detective and my tape-recorded confession.”37

How do we know that this casual dismissal of DNA testing, which is persuasive to just about everyone else on the planet, is a sign of self-justification and not simply an honest assessment of the evidence? It’s like the horse-race study we described in chapter 1: Once we have placed our bets, we don’t want to entertain any information that casts doubt on that decision. That is why prosecutors will interpret the same evidence in two ways, depending on when it is discovered. Early in an investigation, the police use DNA to confirm a suspect’s guilt or rule the person out. But when DNA tests are conducted after a defendant has been indicted and convicted, the prosecutors typically dismiss it as being irrelevant, not important enough to reopen the case. Texas prosecutor Michael McDougal said that the fact that the DNA found in a young rape-murder victim did not match that of Roy Criner, the man convicted of the crime, did not mean Criner was innocent. “It means that the sperm found in her was not his,” he said. “It doesn’t mean he didn’t rape her, doesn’t mean he didn’t kill her.”38

Technically, of course, McDougal is right; Criner could have raped the woman in Texas and ejaculated somewhere else—Arkansas, perhaps. But DNA evidence should be used the same way whenever