Looking Beyond the ‘White Bears’ in Criminal Justice

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In a famous experiment, subjects were instructed not to think of a white bear for five minutes but to ring a bell if they did happen to think of a white bear. The subjects rang their bells on an average once every minute.

To see an example of this phenomenon in action consider the New York Times’ sustained coverage of wrongful conviction scandals in Brooklyn.

The star of this long-running series is retired New York Police Department detective Louis Scarcella. Fifty of Scarcella’s old cases are under review; at least ten have been overturned.

In the TimesScarcella has the status of a white bear.

Wherever a Brooklyn exoneration story starts, it will bend back toward Scarcella before it ends.

There’s nothing unnatural about this. Readers and editors love a monster. So, a Scarcella story will get some space; another might not.

Still, this augments a feature of American criminal justice commentary that seems very strange to people who take the word “safety” in “public safety” seriously: Our enduring conviction that safety can be pursued by asking “Who?” after a disaster, and skipping the “Why?” and the “How?”

The gravitational pull towards “Who” exerted by white bears like Scarcella is on display in the Times’ skeptical article describing the response of Eric Gonzales, the Acting Brooklyn District Attorney, to the allegations against the detective.

The Brooklyn prosecutors, according to the Times, “made a curious acknowledgment.” According to the article, “ even though they had agreed in recent years to dismiss seven murder convictions that Mr. Scarcella helped obtain, he had done nothing wrong.”

The Gonzales version of this conclusion quoted in the article strives to add a nuance:   “We just never found any allegations of specific misconduct — there’s not been a smoking gun.”

That didn’t satisfy Times reporter Alan Feuer. As Feuer wrote, “By stating on the record that it has no evidence that Mr. Scarcella committed any crimes, the district attorney’s office has relieved itself of a handful of unpleasant consequences.”

Maybe. But the Acting District Attorney, by clearing Scarcella, has intensified the need to find out what actually happened in the Scarcella cases.

If your system generates ten wrongful convictions (and leaves ten actual perps running free) when everyone is acting properly, then examining the weaknesses of your system is an emergency.

Your system constitutes a tragedy waiting to happen.

Interested in preventing future wrongful convictions? Then you have to move past the Times’ approach (“It’s Scarcella, hang him”) and the Acting District Attorney’s (“Scarcella cleared, nothing to see, move along”) and account for the many other factors that, safety experts would warn us, contribute to criminal justice errors and, if adjusted, could contribute to preventing them.

A wrongful conviction is an “organizational accident.”  Many small failures, no one of them independently sufficient to cause the event, combine and cascade, and only then produce a tragedy.

Even if you stick with the “Who” questions, you have to recognize that—as none other than Louis Scarcella himself once pointed out—he didn’t do it alone.

Somebody hired, promoted and assigned Scarcella. Someone was supposed to supervise him. The crime scene and forensics people were supposed to investigate the cases too.

Someone designed, and someone was supposed to maintain, an elaborate scaffolding of rules and procedures organized to deal with the reality that now and then a “Louis” may show up. The prosecutors, the defenders, the judges, the jurors and the appellate courts are all supposed to intercept his mistakes. Someone organized the responsibilities and training and set the budgets for this legion.

The answer to “Who is responsible?”  is  “Everyone involved, to one degree or another.”  We failed together.

How?  To answer that riddle you have to ask more questions. The answer “These are bad people,” just doesn’t suffice.

Even a Scarcella’s decisions—the incompetent or immoral ones included—were “locally rational.”  He made his choices; he had his reasons. Something in his environment provided incentives; something erased disincentives.

Ethical violations break moral rules, but whether people choose to break or follow the rules has a behavioral dimension; it isn’t purely a question of upbringing or intrinsic character. Fixable features of the everyday work culture that surrounds people can undermine or encourage compliance.

The seductive features we leave lying around can induce the next detective who comes along to zig when he should zag.

The same is true for all of the other fallible players: the other cops, the Assistant District Attorneys, the defenders, and the judges implicated in the exoneration nightmares.

Safety expert James Reason once argued  that although we can’t change the human condition, we could change the conditions under which humans work.

But we can only do that if we resist the temptation to move along without accepting the risks of turning over some rocks to analyze what those working conditions are.

It isn’t hard to see why the Brooklyn District Attorney’s office hesitates before undertaking the sort of non-blaming, all-stakeholders review of the circumstances and culture that surrounded Scarcella and that shaped his conduct which aviation, the military, and medicine would mobilize (and which the National Institute of Justice is exploring in criminal justice with its Sentinel Events Initiative).

To the Brooklyn prosecutors, any demand for that sort of comprehensive review inevitably looks like a vindication of the maxim that no good deed (e.g., creating an active Conviction Integrity Unit) goes unpunished. The Acting DA is afraid that any search for “Why” and “How” will inevitably turn up more than one “Who” —in fact, lots of “Whos,” and lots of them within the DA’s office.

After all, any review that assesses the choices not only of a Scarcella but of the whole system and includes the prosecutors involved in his cases will expose people who are not swashbuckling Scarcella types, but are the innocent authors of omissions, slips, oversights, dangerous “work-arounds,” and other simple human errors.

Why risk making “white bears” of those staff members for the foreseeable future—vulnerable to the arbitrary (and persistent) attentions of the Times and others?

But as uncomfortable as it is to say it, exonerating the innocent, waving off Scarcella, and then moving on really isn’t enough if prevention of future tragedies is something you care about.

In fact, it doesn’t begin to be enough.

Calling endlessly for the discipline or prosecution of Scarcella isn’t enough either.

It may be that Louis Scarcella is every inch the creep that many contend he is, but we have to be careful about seeing this White Bear as a White Whale. Scarcella didn’t, like Moby Dick, act from “inscrutable malice.”

The white whale is a powerful literary device, but tolerating the illusion that the only thing wrong in Brooklyn criminal justice is that a white whale comes along now and then and requires harpooning isn’t simply incomplete; it is false.

The fact is, the Times’ approach and the Acting District Attorney’s reinforce each other.

We all need to look past the One Big Villain explanation.

James Doyle

Interventions—small changes in the practice of any one of an array of other people—could have changed the catastrophic outcomes in the wrongful convictions cases.

Those people don’t want to convict the innocent and leave the guilty free. They will change their practices if we can help them figure out how. We should enlist them in working to improve the safety consciousness of their everyday frontline work.

They present a much more hopeful path to future safety than the punishment (or not) of Louis Scarcella.

James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.

3 thoughts on “Looking Beyond the ‘White Bears’ in Criminal Justice

  1. Hi James. I really enjoyed your article. As someone who researches cases and advocates for the wrongfully convicted, I 100% agree with you. We can’t blame a single entity for the wrongful convictions. Many are responsible.

    I wrote a recent article in which an ADA faced a disciplinary hearing for withholding evidence. It turned out that police assisted her, as did her supervisor and the judge. Any one of them could have made a different choice and the trial outcome would have been different, but it didn’t happen.

    https://stopwrongfulconvictions.wordpress.com/2017/03/23/disciplinary-outcome-of-former-wake-county-prosecutor-highlights-severe-flaws-in-our-justice-system/

    Moving forward, what will change? It seems nothing will change. The ADA did not even lose her law license. There were no reported consequences for the others involved, so it will continue happening.

    Thank you for drawing attention to this complex problem in our justice system.

  2. Hi James, and Thank You. It was a great article. As I too advocate for an innocent man, this odyssey of seeking justice has exposed so much corruption ? Corruption is that correct word? Because it is a cumulative process. Broken and almost chaotic in this desire to blame and win. The means to do so matter little. The entire criminal justice corporation is not geared to find truth- its set up to accuse, arrest, convict, and punish. It alone satisfies the public and the media. The minor factors of possible innocence or proper investigation are trivial . To blame just one is very cowardly, but as it’s easier than shaking up an established norm, it’s going to continue. One dirty cop couldn’t get a conviction, to believe that is naive. But until incarceration hits ones front door almost anything printed in a reputable paper is believable. Hind sight does not apply in criminal justice . Please keep diligent with these shedding light on these wrongs.

    • I just came home from a 16 month stay in jail accused by a disabled man that I had worked with of rape..totalling five charges…i came so close to signing bad deals…and suddenly the accuser recanted giving a new discovery…the Judge and DA dismissed all charges and a trial that was about to start within a week…now I am home…sold my vehicle to try saving my home…in foreclosure, no job, and here in Riverside County CA they do not give general relief to people like me..but I did get some food stamps..wow. I am told there is no way I can get compensated for my life being ruined. The Detective totally lied at my pre-lim. Everyone was corrupt. Do you know how I can get help with compensation for being falsely arrested?

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