Clint Eastwood’s new movie, “Sully,” dramatizes the short journey of US Air Flight 1549 under the command of Capt. Chesley “Sully” Sullenberg. The flight, from its take-off, through the bird strike, to ditching in the Hudson River, takes about six minutes.
Then comes the National Transportation Safety Board (NTSB) investigation.
According to New Yorker critic Richard Brody, the film is really “about a real-life action hero who is nearly destroyed by pencil-pushing bureaucrats lacking a scintilla of his experience—and about precisely the kind of knowledge and experience that Sully relies on to pull off the landing.”
There’s a whole ideology of safety concealed in that sentence. Its cardinal rule is “Good man; good result. ” That rule has a converse, “Good result, good man.”
Now and then, as with Sully, we encounter “Great result; great man.”
And implicit in this approach is the rule’s dark sibling: “Bad result; bad man.”
The NTSB’s vile sin in director Eastwood’s eyes was to have had the temerity to question the decision-making of the great man. (I mean, the passengers survived, and this is Tom Hanks, for God’s sake!)
Everything, in the end, comes down to a matter of character—a question of upbringing.
If you want to understand an accident, the only question you really have to ask is “Who?” Get that answer, and you can stop there.
To see this thinking in action in criminal justice consider the reaction to two pieces published last week by New York Times columnist Jim Dwyer.
Dwyer described separate examples—one in Brooklyn, one in Queens—of wrongful convictions in which the prosecution failed to turn over exculpatory evidence. These weren’t close cases. In Brooklyn, two reports that witnesses had identified another man vaporized. In Queens, no one turned over evidence of an entire narrative of a neighbor of the defendant’s who was arrested with guns on the night of a road rage shooting.
Dwyer made it plain that these were straightforward violations of the rule of Brady v. Maryland that requires that prosecutors provide the defense with evidence of innocence: very obvious misconduct.
But because it wasn’t exactly clear who on the Queens prosecution team had done what, Dwyer did not publish the name of the Queens trial prosecutor.
For this omission, Dwyer was treated to a storm of abusive tweets, righteous e-mails, and derisive blog posts, all ridiculing him for failing to answer “Who?”
Apparently handicapped by their own hyper-ventilation, Dwyer’s critics missed the fact that Dwyer had spent his time on a more productive question. Dwyer had pushed further than “Who?” and wondered about “Why?”
In effect, Dwyer did what the National Transportation Safety Board does. He sketched an event review, not a personnel department’s performance evaluation, or an ecclesiastical moral judgment.
Clint Eastwood notwithstanding, the NTSB report on Sully’s experience, far from being an ungrateful attack by jealous pygmies on a great man, is a careful examination of how to avoid replicating the same circumstances that Sully withstood when the next pilot—who might be a pretty good pilot, but maybe not a great man—has command of the plane.
One of the things the NTSB concluded was that there was a lot of luck involved in the survival of Flight 1549’s passengers. One piece of luck was having a very experienced crew in the cockpit. But there was other luck too. It was, for example, pure happenstance that Flight 1549 was one of a relative handful of US Airways jets equipped with front door slides for water evacuations.
And it became very clear that if nothing is changed before that next, pretty good, pilot faces a low altitude dual engine power loss that pilot will have been set up to fail.
There was no US Air checklist for low-altitude dual engine failures, and the elaborate checklist for high altitude failures (which Sully ended up ignoring) would have occupied a compliant low-altitude crew all the way into the ground.
A 2005 NASA study of voluntarily reported “near miss” events had revealed an 86 percent success rate in “textbook” emergencies where pilots had an adequate checklist, only a 7 percent success rate in “non-textbook” emergencies for which they did not. In other words looking at the “Whys?” illuminated something important that could be done.
Dwyer asked why the prosecutors zigged when they should have zagged. Would the same reasons lead the next prosecutor down the same path? He confronted the fact, as the headline of one of his columns put it, that “A False Conviction is Overturned, But the System That Produced It Remains.”
No system can survive without disciplining its conscious rule-breakers.
But simply whacking the lone “Who?” and stopping there doesn’t repair the situation. As the lawyer for Wayne Martin, the Brooklyn defendant, pointed out in the Daily News, the since-exorcised trial prosecutor in that case didn’t do it alone.
Wrongful convictions are system failures. They aren’t caused by lone wolves; they happen when small violations—no single one of them sufficient to cause the result alone— combine with each other and with latent system weaknesses.
Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream inability of the defenders to uncover the Brady violation, or to compensate for its impact, much remains to be explained about the prosecutors’ actions.
Were Dwyer’s two prosecutors uniquely sociopathic individuals? If so, how did the two DA’s offices go about identifying, recruiting and hiring them? Did they see themselves as renegades within their offices, or had they become convinced when they were young ADAs that this was normal, “how things are done?”
Why did they think that? Who trained them? How? About what? Who supervised them?
Is it conceivable that these were their first Brady violations? Why did their prior rule-breaking escape notice? Who sat by silently when that happened? And crucially, why did they sit by silently?
The potential contributing factors in the system that Dwyer surveyed included the content of the Brady rule itself, the inadequate funding of defense lawyers, the see-no-evil attitude of trial judges, and the lack of institutional accountability.
One of the reasons that aviation’s accident rate is so low is that the field has fully embraced the need for a “culture of safety:” For a world in which it is routine for NASA and the NTSB to investigate the “Whys?” of near misses and completed events.
At the core of these efforts, (now also at the core of medicine’s patient safety movement), is the conviction that by understanding “organizational accidents” and their many contributing causes we can develop a “forward-looking accountability” that doesn’t limit “accountability” to punishment of bad guys but extends it to the prevention of future disasters.
That is, to an accountability that makes sure the right checklist is in the pilots’ hands when the birds hit the turbines.
The National Institute of Justice has embarked on a scientifically scrupulous exploration of whether these ideas can be translated into criminal justice. Can some template be developed, tested and evaluated that local jurisdictions can then use in balancing attention to rule-breaking with the non-blaming, all-stakeholders analysis that improves future outcomes?
Other voices, such as the President’s Task Force on 21st Century Policing and the National Commission on Forensic Science have called for the systematic, forward-looking, evaluation of critical events.
But this new understanding of how things go wrong presents a continuing professional challenge to criminal justice journalists that deserves some concentrated attention.
Jim Dwyer’s approach to the two wrongful convictions he described breaks fertile ground because he pushes on the “Whys?” and doesn’t luxuriate in exposing the “Whos?” But Dwyer is a columnist who in that role enjoys considerable autonomy and a little time to think things over. He is no longer a reporter covering spot news, or an editor handing out assignments and reading copy under deadline pressure within a tightening news cycle.
Can criminal justice journalists find a way to make room in their coverage for “system-oriented” analysis? Can some future sober, NTSB-style report of a “sentinel event” in criminal justice be accepted and explained, or will it—like Dwyer’s columns—be attacked as a cover-up for failing to provide someone to hang?
Do we have to stop at scapegoats, or can we illuminate system weaknesses?
And—although here I am speculating—do criminal justice journalists have to weigh the possibility that the “Who to excoriate?” traditions actually degrade safety by gently driving reports of “near misses” and “good catches” in criminal justice underground?
The fact is that criminal justice journalists, if they decide to take on this challenge, are going to have to think it through under conditions of time pressure, resource scarcity, and cultural inertia: just like the people they are covering in criminal justice who are thinking about it too.
James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report. He welcomes comment from readers.