Conviction Integrity: How to Get There

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Correcting the last wrongful conviction and preventing the next one are not the same project.

Hoping that a prosecutor’s “Conviction Integrity Unit” can simultaneously correct a past wrongful conviction and cut the danger of future mistakes is asking too much of a good idea.

Identifying and releasing the wrongfully convicted is an emergency. Do that first.

An active Conviction Integrity Unit can play an important role is evaluating whether an injustice has been done. But, then, everyone should come to the table to analyze known errors— not by exonerating one innocent person, or by searching for a single cause or by blaming a lone bad apple; but by appreciating and describing an event’s complexity.

We are about to see the distinction illustrated in Brooklyn, NY, where newly elected District Attorney Kenneth Thompson has inherited over fifty questionable homicide convictions involving retired Detective Louis Scarcella.

Scarcella, as depicted in media accounts, could be the poster boy for the “bad apple” vision of the cause of wrongful convictions. (He denies all misconduct.)

But wrongful convictions don’t happen because of one warped practitioner. As Scarcella himself pointed out to the New York Times, “I have to be a pretty smart guy to lock someone up, get it through the D.A.’s office, get it through a trial and jury, and convict . . . I’m not that smart. It’s not a Louie Scarcella show.”

Even when a case does involve a renegade investigator, there’s plenty of responsibility to go around.

A wrongful conviction, like the launch of a doomed space shuttle or an operation on the wrong patient is an “organizational accident.”

Small mistakes, none of them independently sufficient to cause the event, combine with each other and with latent system weaknesses to bring on a tragedy. Standing to the left of a Scarcella are the people who hired him, supervised him, promoted him.

Standing to the right are the prosecutors, defenders, and judges who are assigned to prevent his misconduct taking effect. The real answer to the question “Who is responsible for this wrongful conviction?” is always “Everyone involved, to one degree or another”— either by making a mistake or by failing to catch someone else’s.

In a wrongful conviction “everyone” includes not only the sharp-end practitioners who zigged when they should have zagged, but other actors far from the scene of the event who set the practitioners’ budgets, determined their caseloads, designed their incentives, and constructed their work environments.

Exorcising a rogue detective is the wrong place to stop. Simple mistakes surrounding Scarcella have to be analyzed and understood too, or the same mistaken decisions that looked like good ideas to the last practitioners will still look like good ideas to the next ones.

The criminal justice system owes an answer to the question asked by Alvena Jennette, who was one of a half-dozen people convicted on the basis of the “eyewitness” testimony of a crack cocaine addict, Teresa Gomes, who Scarcella magically produced whenever needed: “How was it possible that this woman testified in this many murder cases without nobody saying nothing?”

How did this get by the prosecutors? And for years? The defenders? Were there tacit incentives to keep your head down? To look the other way?

Did people evade discovery rules? Or were the rules too weak? Did judges fail to enforce them? Were clearance rate, political, or media pressures important? Did extreme caseloads cripple defense oversight?

Or did all of these factors combine and interact to let the train of events that Scarcella set in motion come to its tragic conclusion: an innocent man in prison; a guilty man still on the streets? Was this a system error, not the work of a lone villain?

Have we fixed the system? Or have its latent problems outlived Scarcella?

What we need here is an analysis of an event, not the investigation of a person.

No district attorney can undertake this inquiry on his or her own. A wrongful conviction like Jennette’s has to be treated, as a hospital would treat a “wrong patient” surgery: as a “sentinel event.”

It requires an all-stakeholders examination of why every entry on the long, long, list of mistakes that contributed to the outcome seemed rational to the operators at the sharp end of the system at the time.

In hindsight we know the outcomes of these choices. But congratulating ourselves on seeing that people made mistakes doesn’t do much to prevent a repeat unless we collaborate on trying to understand how the system as a whole shaped their options.

People zig instead of zag for a reason.

If they had known the outcome of their acts when they made their choices, they would have made a different choice. Many of them are traumatized when they discover that they had a role in a wrongful conviction.

This model of understanding how things go wrong, derived from aviation and medicine, which the National Institute of Justice is currently exploring in its “Sentinel Events Initiative,” is due for an audition in Brooklyn.

The problems a case like Jennette’s illuminates aren’t the DA Thompson’s or Police Commissioner Bratton’s or the Legal Aid Society’s alone.

Everyone in criminal justice has some individual responsibility for the collective outcome. The goal has to be not laying blame, but understanding and limiting the risks of repetition.

Editors Note: For a closer look at Conviction Integrity Units, see the March 27, 2014 TCR story by Hella Winston, “Wrongful Convictions: Can Prosecutors Reform Themselves?”

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

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