How Small Errors Combine to Send Innocent People to Prison

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Sometimes 'Blind Justice' can produce tragic mistakes,. Photo by mira66 via Flickr

It all began with a mistaken eyewitness identification.

On the night of April 13, 2011, a woman walking with her nephew on a Northwest Philadelphia street was accosted by an armed man in a gray hooded sweatshirt. The man fired at point-blank range, killing her nephew and wounding her as she turned to flee.

In the aftermath, the woman told police she recognized the killer and, after being a shown a photo, she identified him as George Cortez, whom she knew as “Mal” and was an associate of her nephew’s.

She turned out to be wrong. But that didn’t stop Philadelphia’s justice machine from becoming locked into a cascading series of mistakes that started with the bad ID, and were compounded by flaws in the police investigation and subsequent trial.

In 2016, Cortez finally emerged from prison, where he was serving a sentence of life without parole for murder, after defense attorneys were granted a new trial with the agreement of the District Attorney’s office on the grounds of evidence suggesting his innocence.

In the interim, Cortez’ younger brother Owen confessed to the murder.

How and why did the Philadelphia justice system convict an innocent man?

In a groundbreaking initiative, the principal “stakeholders” in the case—the Philadelphia police, courts, public defenders, and prosecutors—conducted an in-depth review that aimed to identify the slip-ups, stumbles and oversights that contributed to Cortez’ wrongful conviction, and to recommend corrections.

Pilot Initiative

The so-called “Sentinel Events” review in Philadelphia was one of the pilot initiatives sponsored by the Office of Justice Programs at the Department of Justice to extend an approach to analyzing mistakes long used in the medical and aviation communities to the justice system.

The approach is premised on the idea that a series of small and often-overlooked errors often combine to produce grave miscarriages of justice, whether a wrongful conviction or a police shooting of an unarmed civilian.  Advocates of the strategy say it represents a “paradigm” shift in how we identify and correct mistakes—from blaming a single individual or individuals, to trying to find ways to prevent them from happening again by making appropriate changes in the system.

The report of the Philadelphia Event Review Team (PERT) on the Cortez case, organized by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, was released this week to acclaim from all corners of the city’s justice bureaucracy.

(An earlier Sentinel Event Review was conducted on another wrongful conviction case in Baltimore.)

“Adapting this method of investigation to determine what went wrong in a criminal prosecution creates an exciting new tool for analyzing errors,” said Judge Carolyn Temin, first assistant to Philadelphia District Attorney Larry Krasner.

Keir Bradford-Grey, Chief Defender of the Defender Association of Philadelphia, said the PERT process effectively set a new template for how the justice system can learn from mistakes.

“True criminal justice reform isn’t just about policy,” she said. “It’s about changing our practices and developing shared understanding.”

Philadelphia Police Commissioner Richard Ross added that PERT offered an opportunity for everyone involved in the system to “pursue better outcomes and the common goal of true justice for all persons.”

“Typically,” he admitted, “Police and prosecutors maintain an adversarial relationship with defense counsel.”

The 36-page PERT report, issued by the Quattrone Center, provided a poignant list of system defaults that produced Cortez’ wrongful convictions, after diving into every aspect of the case, from the initial police investigation to the pretrial phase and the jury trial itself.

“Our goal was not to punish or find blame with any individual or agency, but solely to understand how our system could ultimately convict George Cortez and then conclude that the conviction was in error, based on the specifics of this case and its subsequent appeal,” the Center said.

The PERT team produced dozens of specific recommendations for change.

They included:

  • Revamping the protocols of witness identification that allow police to be open to the possibility of error. (There were several points where the woman’s positive ID of Cortez remained open to doubt, but police did not pursue them.)
  • Equip Philadelphia courtrooms with the ability to display digital information to the jury and all parties in the case. (Relevant data on Cortez’ cellphone suggesting his innocence were withheld from view because prosecutors maintained it was impossible to adequately show them.)
  • Philadelphia courts should adopt a standing “open discovery” protocol that would require prosecutors to provide potentially exculpatory material early in the pre-trial phase.

The team also agreed that changes in establishing the expertise of forensic witnesses were needed. In one instance, an “expert’s” assertion that Cortez’ cellphone had been altered to support his alibi was found to be incorrect, after defense attorneys discovered later that it was impossible to alter that model of phone without detection.

The team also noted that a crowded court docket made prosecutors and judges too eager to overlook potential errors in the interest of time and efficiency.

Systemic Errors

Many of these systemic errors have been recognized in other jurisdictions following the increase in exoneration proceedings and the growing number of Conviction Integrity Units in prosecutors’ offices around the country.

See also: The Price of Wrongful Convictions: 1,639 Years Behind Bars

But the Sentinel Event Review process provides an effective framework for components of the justice system that are normally at odds, as they find themselves increasingly under attack from community leaders and the press when justice goes wrong, advocates say.

“It’s really exciting that so many criminal justice stakeholders have come together in partnership to see what we can learn from cases where things don’t turn out the way they should, and how we can use those learnings to make Philadelphia’s criminal justice system more reliable and more just,” said John Hollway, director of the Quattrone Center, and Associate Dean at Penn Law.

The Philadelphia case is expected to set the standard for similar initiatives underway around the country. The Quattrone Center received a $1.6 million grant from Justice to provide technical assistance to other jurisdictions interested in conducting stakeholder reviews.

On April 17, the Office of Justice Programs will host a webinar open to everyone involved in justice around the country, including community stakeholders, to provide further information about the project, answer questions, and take recommendations.

Anyone interested can register here for the Webinar .

The complete PERT report is available here.

This summary was prepared by TCR Executive Editor Stephen Handelman. Readers’ comments are welcome.

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