The death this week of Janet Reno, the country’s first female Attorney General, was followed within days by presidential election results that cast a glaring light on questions about the uncertain future of the Department of Justice that Reno once led.
The media have covered the death of Janet Reno respectfully.
The big events of her two terms’ service at the Department of Justice have been dutifully catalogued: the Branch Davidian fiasco in Waco, the Elian Gonzales repatriation, the Clinton special prosecutor controversies, have all been rehashed.
Reno’s flinty honesty during these tempests has been acknowledged.
Most of the obituary writers describe this aspect of Reno’s character in tones of wonder, as if they had discovered an exotic native of a distant planet.
But so far no one has shared a lesser-known Reno episode with larger consequences: a low-temperature story about how Reno’s focus on simple justice worked a paradigm shift in how we approach things in America today.
In February 2003, the Washington Post reported on the exoneration by DNA technology (then brand-new) of a Maryland marine, Kirk Bloodsworth. Bloodsworth had been sentenced to death for the rape and murder of a young girl on the basis of the testimony of five eyewitnesses.
The Baltimore County District Attorney, in announcing that Bloodsworth would be released, was not able to bring herself to say that Bloodsworth was innocent. “I’m saying there is not enough evidence to convict him,” was as far as she would go. (More recently, further DNA testing has identified the actual murderer.)
Janet Reno had been a DA herself. She read the Post’s Bloodsworth story, but she reacted differently.
At a meeting later that morning, Assistant Attorney General Walter Dellinger mentioned the article and suggested that maybe something could be learned from the wrongful convictions of Bloodsworth and the 15 others whom the Post listed. As Dellinger knew, the typical criminal justice system reaction to this suggestion would be, “Hey, we’ll just learn that weird stuff happens sometimes.”
The truth is no one was going to require anything more than a pious expression of regret from DOJ as a response.
But Reno agreed with Dellinger.
“Let’s see what we can do,” she said.
The project was assigned to the National Institute of Justice (NIJ), the research arm of the DOJ and its Director, Jeremy Travis. NIJ produced a slender pamphlet that assessed the 28 known cases in which DNA testing had authoritatively shown that an innocent man had been convicted.
Ernest Hemingway once famously wrote that “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”
It is not too much to say that all modern American criminal justice reform can be traced to the pamphlet, entitled Convicted by Juries: Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.
The news that the volume brought about wrongful convictions spread like wildfire through field. The justice system’s myth of infallibility had become impossible to sustain. Everyone compressed the mouthful of a title to “The Green Book” (after the color of its cover) and it was talked about everywhere.
The Green Book summoned to the forefront an observation that the adversarial traditions of American criminal justice tend to obscure. It showed that everyone in the contentious world of criminal justice shared at least one thing: no one wants to see an innocent man in prison while a guilty man goes free to find more victims.
People got to work on the weaknesses in the system that the Green Book’s cases had revealed: the unreliability of eyewitness memory, the frequency of forensic science errors, false confessions, and other flaws. The list of cases set an agenda for reform.
But the Green Book provided more than a list of problems to triage for repairs; it also provided a method.
Reno and Travis complemented the accounts of the 28 individual cases with commentary from all points in the criminal justice system compass. Rockne Harmon wrote from the prosecutor’s vantage point. Walter Rowe wrote about the forensic scientists’ challenges. Barry Scheck and Peter Neufeld, the co-directors of the fledgling Innocence Project, contributed an essay in which they argued that the Green Book’s cases represented the tip of an iceberg, and that the system should seize on the learning opportunities that the list of cases provided as the NTSB examines an air crash to prevent others.
The Green Book’s core characteristics: its recognition that all criminal stakeholders had a contribution to make—and its determined “forward-looking” orientation, aimed not at blame and punishment of the participants in the miscarriages of justice but at preventing recurrences— were at that point startling innovations in our approach to criminal justice problems.
But this new focus on collaborative prevention and healing were abiding personal characteristics of the Attorney General who had set the whole thing in motion, Janet Reno.
That became more obvious as things progressed.
Eyewitness errors had infected the highest proportion of cases on the Green Book list. Reno had Travis and NIJ convene a Technical Working Group to develop a best practice Guide for Law Enforcement. Reno insisted that everyone be represented: cops, prosecutors, defenders were all included. She required that the practitioners confront and mobilize the findings of psychological researchers, and brought the scientists to the criminal justice table.
The document that emerged did not fully satisfy anyone. No psychologist would have called its recommendations cutting edge.
But Reno had succeeded in laying out a template. Learn. Try to fix things. Bring together a diverse group of practitioners and relevant experts. Put them to work together to address the shared horror of an innocent person convicted. NIJ repeated this process with other subjects:
Guides on crime scene investigations, death investigations, and other areas of concern were published.
Soon states and local jurisdictions began to follow suit. In Boston, District Attorney Daniel Conley almost immediately convened an eclectic task force on eyewitness evidence that produced a new gold standard set of practices.
The process continues today.
Once—before Reno—it was amazing if the criminal system’s warring elements could be persuaded to sit in the same room. Today, it would be shocking if anyone attempted to address a criminal justice problem in any way other than by mobilizing the research in an all-stakeholders effort to get things right. Every problem identified in the Green Book cases has been addressed and mitigated by dedicated use of this process, and new task forces, working groups, and study committees using it are convened every day.
Reno changed the criminal justice world.
I met her a few times. Once when I was writing a book on the eyewitness reforms, she was nice enough to have lunch and submit to an interview. She was just as tall as portrayed by Will Ferrell on Saturday Night Live, but in an odd, unassuming way, somehow prettier than expected. She was frank, and she was also quite funny: she had a real talent for caricature, and she gave it a workout in discussing some of the personalities involved.
There was one point she wanted to be sure that I got. (She knew I was an indigent defense lawyer.) Her father had been the police beat reporter for the Miami Herald, and throughout her childhood their house had been filled with working cops on weekends. She thought they were great people.
“When you’re talking about criminal justice reform,” she said, “You have to remember that you’re talking to people who’ve worked their whole lives for long hours at low pay trying to do the right thing.”
This abiding recognition that criminal justice is an enterprise that entangles hard-working people is something I’d hate to see forgotten about her. It informed everything she did. It led her to give unprecedented attention (and to devote unprecedented resources) to the plight of crime survivors and to exonerees alike.
A few days ago, a friend relayed the observation of a former Reno colleague at the DOJ. At every critical meeting in Reno’s office, no matter how hysterical the media or how strong the political pressures, the only question was “What’s the right thing to do?”
For Janet Reno that was the question in big things and small. Our nation’s next Attorney General should keep that question in mind.
James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report. He welcomes comment from readers.