Keeping the Wrong Secrets: The ‘Cone of Silence’ Around Exonerations

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Photo by photographymontreal via Flickr

In Illinois, Cook County and the village of Park Forest recently settled a wrongful conviction case for $14 million.

Christopher Abernathy spent 29 years in prison for the rape and murder of a 15-year-old girl. Abernathy, who suffered from learning disabilities, alleged that detectives pressured him into confessing during a 36 hour-interrogation.

Eventually, DNA recovered at the scene implicated two unknown males and exonerated Abernathy. The Cook County State’s Attorney agreed that he should be released.

Abernathy was sexually assaulted and infected with HIV while in prison.

A fascinating aspect of the case is that although the government defendants settled, they insisted that the settlement contain no admission of wrongdoing and that the facts of the wrongful conviction and prosecution would be concealed behind a confidentiality agreement.

This isn’t uncommon.  In fact, it is normal.

In every criminal justice bureaucracy, there are layers of mid-level people who have been taught that their role is to help their department (or office, or agency, or court) keep its head down.  The rote demands for confidentiality orders and the refusal to admit wrongdoing in the Abernathy case were predictable, reflexive, part of a routine.

But why?

If the information quarantine is designed to protect an image of infallible cops, prosecutors, defenders, and courts, then the effort is futile. That picture no longer exists, even on TV.

The DNA results in Abernathy’s case—and a steady flow of other cases that are shared in the media—have already let the public in on the secret (if it was ever a secret) that people in criminal justice make mistakes. By 2016, the rate of exonerations had already doubled over the previous five years to an average three a week, according to figures compiled by the National Registry of Exonerations.

The aura of perfection is gone, and it isn’t coming back.

Trying to preserve this illusion can cripple our efforts to repair the damage we’ve done.

Paying the Debt, Telling the Story

When we talk about “accountability” in criminal justice we are really talking about two distinct ideas.

An “account” is something to be settled: a debt to be paid.

But an “account” is also a story to be told: a narrative that could bear witness to the suffering of the victims, explain what happened, accept responsibility, and fuel the learning that prevents recurrence.

We need to address both senses of the word “account.” But when we try to answer “calls to account” without keeping their distinctiveness in mind, the odds are that we will fail to answer either requirement successfully.

In medicine there are people like patient safety pioneer Dr. Lucien Leape who remind “circle-the-wagons” administrators that the mission of a hospital is not to avoid lawsuits; it is to care for patients.

The mission of a criminal justice system is not to avoid lawsuits either; it is to do—and, just as importantly, to be seen to do—justice.

Arguments about accountability usually focus on account-as-debt. There are two kinds of debt at issue: the personal debt of the cop who extorted the false confession or the defender who didn’t investigate, but also the system debt owed for the awful consequence that the justice system as a whole produced without intending to, or even realizing what it was doing.

Prosecution, discipline, or discharge are the currencies for settling the individual wrongdoer’s account.

No system can tolerate conscious rule-breakers or reckless loose cannons, and public trust in the law depends to a significant degree on punishment of insider offenders.

But by its nature, any punitive path requires elaborate due-process protections for the individual, and seems to dictate a tight focus on that one individual’s actions.

We can’t live without that tool and we shouldn’t hesitate to use it. But an assessment of a rule-breaker’s personal debt—whether we decide to exonerate him or to hang him—is a bad place to stop.

The system-as-system has made an effort to meet its obligations to Christopher Abernathy personally. Thirty-four states now have statutes allowing for payment to exonerated prisoners. One way or another, the payments come from public funds.

Research conducted by Prof. Joanna Schwartz of the UCLA School of Law makes clear that in the related area of police misconduct 99.98 percent of payments, settlements, and verdicts come from public funds too. There is plenty of evidence that the broad, tax-paying public approves of compensation to individuals for harm done in its name.

The public wants to pay.

Telling the Story: Accountable for Healing

But to write the check, and then to stonewall the story of how and why the tragedy happened—and, therefore, whether it can happen again—is wrong-headed.  The settlement looks more like hush money than contrition.

Building a cone of silence around the event makes it seem that justice system leaders are telling the public “Nothing to see here, move along.” They are paying off one individual, but only because they have too.

They don’t much care if the same thing happens again to someone else.

(Jim Dwyer’s recent reporting in the New York Times on the alienation caused by the absence of a clear accounting for the Eric Garner police chokehold death presents a good example of where this leads.)

Medicine’s experience with “disclosure and apology” after medical error taught us that when someone is harmed, “We’re sorry this happened to you” is not as good as “We’re sorry we did this to you.”

The expression of sympathy has to include an acceptance of responsibility. Where medicine has taken this road, both the number of lawsuits and the amount of the total paid out has gone down.

In criminal justice, the “we” in the disclosure statement has to include everyone involved. Wrongful convictions are system errors. Yes, the cops got the wrong guy to confess, but someone trained the cops and set their resources; the prosecutors failed to screen the case; the defense didn’t intercept the mistake, the courts waved it along.

At some distance away, someone equipped these players, set their incentives, and limited their options. Even when there are culpable actors there is a range of others who also contributed: who zigged when they should have zagged, for reasons that made sense to them at the time and are revealed as dangerous only by hindsight.

What conditions motivated them? Do those conditions still exist? They are part of the story we have to learn.

The “you” addressed in the apology has to include not only the wrongfully convicted, but those affected by the radiating circles of harm caused by the error: the original crime victims or their survivors, the further victims that the real killer may have found later, and even the professional participants who were traumatized by learning of their roles in an outcome they never intended.

Keeping the Wrong Secrets From Ourselves

Anxiety about disclosure—the sense that it can only hurt—haunts even stakeholders who strongly believe that it is crucial to learn from slips and errors.

But this calculation ignores an up-side to transparency. For example, treating the Abernathy exoneration as if it were a pile of dangerous secrets obscures the fact that the prosecutors’ Conviction Integrity Unit played an important role in a “good catch.”

Why isn’t that prosecutorial acceptance of fallibility and commitment to accuracy a source of pride? True, the “good catch” happened 30 years too late, but even that fact has a positive element. It shows that the system’s leaders believe that no mistake is so ancient that it can be swept under the rug: that while perfect accuracy hasn’t been realized in practice, seeking it is still seen as a moral imperative.

Besides, ultimately the best way to avoid payouts is to avoid doing the harms in the first place. Making a fetish of secrecy in order to avoid tactical disadvantages in civil litigation effectively augments a situation in which we have a justice system that—like NASA on the eve of the fateful Challenger space shuttle launch—is keeping secrets from itself.

As Prof. Schwartz has shown, additional litigation can actually drive learning if we listen to the process: it asks questions that wouldn’t be asked; uncovers causal influences that we didn’t recognize.

And outside the litigation context the launching of the complementary “all-stakeholders, non-blaming, forward-looking” approach supported by the Bureau of Justice Assistance “Sentinel Events Demonstration Project” can mobilize persons harmed in the collaborative work of preventing repeated tragedies. Medicine’s experience shows that injured patients and survivor families welcome the sense that their suffering will help forestall calamity falling on someone else.

The Legacy of Secrecy

So if secrecy actually promotes public distrust and obscures necessary system repairs, why do we pursue it?

Simple inertia plays a part; so does fear.

The situation we find ourselves in didn’t arrive yesterday, and won’t end tomorrow.

Among their other legacies, decades of determined hide-the-ball have convinced the media that the discovery of any contributing factor or fumbling worker in the background of an event presents a delectable opportunity for “blaming and shaming.” That journalistic reflex, in turn, nourishes the arguments for secrecy, and a cycle sets in.

But determined leadership can change this.

The simple, explicit announcement that after every adverse event our department (or agency, or court) will do everything it can—with everyone who can help—to learn what went wrong, and tell the story will constitute a giant leap in the right direction.

james doyle

James Doyle

The work of taking responsibility for learning how things go wrong in our justice system, after tragedies like wrongful convictions and unnecessary police shootings, is an indispensable element of healing and restoration.

But before that work will happen, the leaders of our justice system have to make it part of the job. They should pledge that we will hold ourselves “accountable for learning.”

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