Proofiness - Charles Seife [83]
A truly just court system would treat as sacred any evidence that can show, with extremely high probability, that an accused person is innocent. Ours is not that system. In 2009, for example, the Supreme Court ruled, five to four, that William Osborne, a rape convict, had no right to get a high-quality DNA test on evidence that might acquit him. As the dissenting justices put it, “The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.” Nevertheless, his claim was denied.
Even when a condemned man’s life hangs in the balance, the courts are willing to shut their ears to evidence that shows his innocence. In 1993, the Supreme Court ruled that Leonel Herrera, who had been convicted of killing two police officers, was not entitled to a new trial; he was barred from presenting new and fairly compelling testimony—including a note from the lawyer of the person who probably killed the officers—that might demonstrate his innocence. Herrera was executed by lethal injection four months later.
Unfortunately, there’s no place where proofiness is more apparent than death penalty cases. The machinery of death is oiled with falsehoods.
In the fall of 1986, just four months after his appointment to the Supreme Court, Antonin Scalia was faced with a tricky numerical problem. Scalia, a firm believer in capital punishment, was presented with some disturbing evidence that the way the death penalty is administered in the United States—or at least in Georgia—was unconstitutional.
The evidence was at the center of a case that had worked its way up to the Supreme Court, McCleskey v. Kemp. The petitioner, Warren McCleskey, had been convicted of shooting a police officer in the face with a .38 pistol, killing him, during the robbery of a furniture store. McCleskey had been sentenced to death.
McCleskey’s case had nothing to do with innocence. He was certainly guilty of participating in the armed robbery; he admitted as much, though he denied that he was the triggerman who murdered the policeman. It was more subtle than that. McCleskey argued that he shouldn’t get the death penalty because in Georgia, where he was convicted, the application of the death penalty was racist. And he had the numbers to prove it, thanks to University of Iowa professor David Baldus, who analyzed nearly twenty-five hundred murder cases in Georgia looking for patterns.
He found them. Baldus used regression analysis in an attempt to figure out what factors were responsible for a Georgia criminal’s getting the death penalty. It was a massive endeavor—looking at such elements as whether the convict had resisted arrest, whether the victim was stabbed multiple times, whether the convict had raped the victim—all sorts of circumstances that might influence a prosecutor to seek the death penalty or a judge and jury to impose it. Like all regression analyses (especially ones with large numbers of variables), it was far from perfect. However, when Baldus crunched the numbers, one factor stuck out as an obvious issue: race.
Prosecutors were much more likely to seek the death penalty if the victim of the crime was white than if the victim was black. Quite naturally, this meant that anyone convicted of killing a white person had a higher probability—about four times as great—of getting the electric chair than someone who killed a black person. It was stunning evidence of racial bias in the courtrooms. There was other evidence too: black convicts were more likely to get the death penalty than white convicts, especially when it came to black-on-white crime. (However, the data supporting this were a little murkier, especially since the statistics for convictions before a key death penalty court decision in 1972 were rather different from those for convictions after the decision.) Though Baldus’s study had some flaws, it was extremely disturbing evidence