It has been said many times in public scandals that “it's not the crime, it's the cover-up.” Our communities understand that humans make mistakes. What they cannot abide is a lack of transparency and accountability from our elected officials.
Many of the current headlines in criminal justice reveal this frustration, but the immediate emotional urge for “heads to roll” often has the opposite effect. It encourages politicians and agency heads to take a “deny and defend” posture when mistakes happen—rather than to admit the error, learn from it, and implement changes to prevent its recurrence.
As difficult as it can be to admit when a mistake has occurred, doing so is necessary to improving the reputation of our criminal justice agencies, and it is essential to the design and implementation of useful reforms.
We can't improve it if we don't study it, and we can't study it unless we acknowledge it.
As an example of what can be accomplished, the Quattrone Center for the Fair Administration of Justice at Penn Law and the Montgomery County (PA) District Attorney's Office recently performed a “Just Culture Event Review” to understand and learn from a highly public prosecution that suffered from a significant but unintentional error.
Last January, the DA's Office filed charges of rape against the head of Montgomery County's Republican Party, based in part on a toxicology report that, according to the Assistant District Attorney (ADA) running the case, showed traces of Ambien®. Unfortunately, the ADA and the investigator managing the case had misread the tox report, which actually stated that the amount of Ambien detected was below the threshold detection limits of the assay. Put simply, there was no proof of Ambien.
It was at this point that the DA of Montgomery County, Risa Vetri Ferman, decided not to pursue the “deny and defend” strategy. Instead, she called a press conference to announce the error, dismissed the rape charges and referred the case to the Pennsylvania Attorney General. (The accused individual ultimately pleaded no contest to a charge of sexual assault and was classified as a sexually violent predator.)
Her next call was to the Quattrone Center.
The Quattrone Center advocates for a “systems approach” to criminal justice reform that borrows from healthcare, aviation and other complex human systems, bringing their principles and practices for identifying and understanding errors and implementing improvements to the criminal justice arena. At DA Ferman's request, the Quattrone Center mobilized an integrated team of experts that included individuals familiar with criminal procedure as well as experts in root-cause analysis—a non-disciplinary event-review process designed to identify the direct, indirect, environmental, supervisory, and other factors that permitted a mistake to occur so that preventative measures can be implemented.
The process was seamless, inexpensive and efficient. The DA and her team were surprised at how quickly the Center's non-criminal justice process experts identified communication and information transfer issues in the criminal justice context that contributed to the error and how effectively they proposed structural and procedural changes to the office that would prevent its recurrence.
The challenge, it turned out, was organizational, rather than legal: a case of a layperson ADA and a layperson police officer quickly reviewing scientific information from an ambiguously worded lab report sent by an unfamiliar lab via the victim herself, and received through the filter of the victim's observations. And while not every recommendation made by the non-legal experts was feasible in the setting of a DA's Office, there was no question that the principles of error reduction could be successfully applied in this setting.
With the facts of the case understood, the process went further, delving into why and how an experienced, well-intentioned ADA and investigator could make a mistake in a high-profile case with substantial public scrutiny. Our center worked with the DA and her senior teams to design process improvements to ensure that such mistakes in the future are detected before charges are filed.
We also discussed the question of whether and how to assess accountability and punishment for the individuals involved, and how to implement any necessary changes to the office in ways that would be embraced by all personnel.
The reviewers stressed the need for the DA's Office to embrace a “just culture” of professional responsibility, one that recognizes that even the best prosecutors and investigators will sometimes make missteps, while enforcing baseline standards of professional responsibility and accountability.
Based on our review, the DA decided that her team's error was not intentional, nor was it reckless; as a result, in this case she issued no official punishment of the individual involved. Instead, based on the recommendations from the team, she restructured her office, creating an “ombudsman” role to provide independent review of cases throughout the investigation and prosecution phases, and to help identify areas of risk or lack of knowledge that could lead to undesired outcomes.
She also decided to seek accreditation for the investigator bureau, and to reorganize the bureau's caseload. And she agreed to conduct a presentation with the ADA involved in the case for the rest of the office, a presentation that explained the error and how and why it occurred. The role of the management of the DA's Office in creating an environment where such an error could occur would also be explored, in order to foster a culture of self-improvement that would cause others to identify other mistakes and allow the office to learn from their review.
The DA's Office and the Quattrone Center are currently implementing and evaluating the impact of these changes and will make further modifications as necessary.
With this case, the Quattrone Center and the Montgomery County DA's Office have taken a step towards proving that the Sentinel Events Reviews articulated by the National Institute of Justice, envisioned as unbiased, apolitical “just culture” event reviews, may lead to improved outcomes, identify otherwise undetected areas for process improvement, and lead to the more open acceptance and implementation of reforms.
If criminal justice can learn from its mistakes the way that aviation has, it will enhance community safety for us all.
John Hollway is executive director of the Quattrone Center for the Fair Administration of Justice, based at the University of Pennsylvania Law School. He welcomes readers' comments. Follow the Quattrone Center on Twitter, @QuattroneCenter.