Best-selling novelist John Grisham, a long-time member of the board of the Innocence Project, has dedicated extraordinary efforts to the problem of wrongful convictions.
The media gives Grisham a hearing, and Grisham uses the opportunities.
In a recent Los Angeles Times op ed piece, for example, he set out eight of the reasons for miscarriages of justice that social science surveys of exonerations have uncovered. He pointed to poor police work, jailhouse snitches, prosecutorial misconduct, ineffective defense lawyering, junk science, false confessions, eyewitness error, and sleeping judges.
But as he struggles to nourish public support for reforms with evidence-based lists, Grisham also accepts Princeton psychologist Daniel Kahneman’s observation that “No one ever made a decision because of a number. They need a story.”
And Grisham has provided the stories.
Grisham’s most recent novel, “The Guardians,” mobilizes a character loosely based on Centurion Ministries founder Jim McCloskey to spin the tale of an innocent man wrongly convicted. It offers a hero, and it offers villains. The hero, like McCloskey, is a clergyman who has turned to innocence work, and he is menaced by a corrupt sheriff and a malignant drug cartel. Angels wrestle with demons: the plot zips along.
But Grisham also understands the power of a different kind of narrative, and he has used his prominence in the world of courthouse thrillers to boost true-crime writers who follow the same approach.
His Los Angeles Times essay is in fact adapted from a foreword he contributed to “The Cadaver King and the Country Dentist,” by Radley Balko and Tucker Carrington.
The Safety Narrative
That book is a detailed non-fiction account of the cases of Kennedy Brewer and Levon Brooks, both Mississippi African-American men wrongly convicted in the murders of two three-year old girls. The girls had been, in fact, killed by a a man who had a prior conviction for a sex offense.
There is no lack of drama in the Brewer and Brooks stories. The writing is taut. Balko is an experienced journalist. Carrington is an innocence lawyer, but one with a literary background.
Balko and Carrington muster a colorful cast. The two title characters—Dr. Steven Hayne (The Cadaver King), a Mississippi pathologist who conducted up to 1,500 autopsies a year, and Dr. Michael West (The Country Dentist), a self-proclaimed expert in the pseudo-science of bite-mark comparison—contributed to the disasters. Depicting either would have kept Dostoyevsky busy for a year.
The ensemble of supporting players in the roles of judges, politicians, lawyers, sex offenders, and cops employs just about the entire Gothic Dixie Repertory Company familiar from the works of Faulkner, Carson McCullers, Harper Lee, and Harry Crews.
But the distinctive feature of the book is embodied in the decision by Balko and Carrington to give the last word to Kennedy Brewer, one of the exonerated men.
Brewer isn’t mad at any of his tormenters. As Brewer sees it, it was nothing personal: “The system’s gonna do what the system’s gonna do.”
I could be wrong—Balko and Carrington are not explicit about this—but I think readers who luxuriate in their sense of moral superiority over the title characters are missing the authors’ point. You don’t need the conscious plans of an evil drug cartel to achieve a wrongful conviction; you just need a “normal accident.”
The title seems to promise two cartoonish villains, but the book delivers a careful anatomy of events.
The depressing fact is that no one involved in these cases cared enough about their victims to wrongly target and harm either Brewer or Brooks.
Near the root of each tragedy was, as Diane Vaughan said of the fatal Challenger launch decision, “A mistake embedded in the banality of organizational life.”
Despite its vivid character sketches and exotic atmosphere “The Cadaver King and the Country Dentist” is not a morality play. It is essentially a subtle and many-layered analysis of a safety disaster in a complex socio-technical system.
Along the way, the narrative implicates virtually every one of the eight sources of wrongful conviction that Grisham listed in his Foreword.
The police are poster boys for premature commitment and tunnel vision. The forensic science is faulty in substance (West’s bitemark assertions) and in execution (Hayne’s wholesale autopsy practices).
The defense in one case is incoherent. The judges are spineless.
But the book’s most important contribution is its recognition that no one of these “causes,” and no one of the drama’s players, would have been independently sufficient to convict Brooks or Brewer and leave the actual murderer free.
You can’t see the danger in this system in any one of its components any more than you can see “wetness” in any single molecule of H2O.
The Cadaver King and the Country Dentist are opportunistic bad guys, but they didn’t do it on their own.
The system’s features had to combine with each other and with latent system weaknesses. Then there was a tragedy.
Like experts in safety analysis, Balko and Carrington resist the temptation simply to go “down and in” to find the isolated “eureka part” or “bad apple” that explains the disaster, they also go “up and out.” To the question “Who is responsible?” they answer: “Everyone involved, to one degree or another, if not by making a mistake, then by failing to intercept someone else’s.”
And in Balko’s and Carrington’s telling “everyone” includes many actors far from the scene of the convictions.
Not Dead, Not Past
William Faulkner famously said that the past isn’t dead; it isn’t even past. One of the virtues of the Balko-Carrington narrative is that it accounts for the influence not only of actors who are distant in space, but also of those who are distant in time.
The characters in the story’s foreground are shown trying to make sense of the environment they confront. That environment—not some fixed determination to do evil—is what tempts them to zig when we know in hindsight that they should have zagged.
The Mississippi criminal justice environment was radically warped by an aggressive Jim Crow system of racial oppression.
The death investigation capacity of the system, designed to insulate white perpetrators from prosecution for the murders of African-American victims, is so under-resourced that it amounts to a vacuum. That is the vacuum that the Cadaver King and the Country Dentist contrived to fill.
Starved of resources, the whole justice system (and everyone in it) is under constant pressure, and, reacting to that pressure, the system’s players devise short-cuts, workarounds, and informal work rules.
“Practical drift” sets in, and today’s “good enough” autopsy or investigation becomes the new departure point for tomorrow’s further minor departure from “best practices.”
The Cadaver King and the Country Dentist are no paragons, but they are the heirs to this process as much as they are its creators.
The problem on display here is not the absence of “best practices” or even general ignorance of them; the book makes it clear that a vocal minority of scientists, police officials, and lawyers were screaming about them the whole time.
The problem the story illuminates is that too often no one involved feels that following the best practice is “locally rational.”
Paradoxically, the only thing permanent about best practices in a system under pressure is the drift away from them.
Accounting for Harms
Approaching wrongful convictions by a building a list of potential sources of error isn’t a bad thing.
Approaching wrongful convictions by sketching a poster that encourages us to smite the evildoers isn’t necessarily a bad thing either. There really are individuals who intentionally perjure themselves or hide exculpatory material. They have to be held accountable.
But neither of these responses gives us a good place to stop.
Safety writers remind us that an “account” is a debt to be paid, but it is also a story to be told.
That seems to be John Grisham’s opinion too, and the Balko and Carrington book that he championed vindicates his conclusion.
The stories of the Brooks and Brewer wrongful convictions disclose hundreds of moments when dozens of individuals who would now be horrified by the outcomes could have done something differently.
(Anyone who thinks the kind of ongoing forensic shambles that convicted Brooks and Brewer is purely a Mississippi phenomenon should take a look at the Massachusetts drug labs scandals and their aftermaths.)
Legislators (like Grisham himself, who served in the Mississippi Legislature and accepts this responsibility) could have funded the medical examiner and indigent defense systems; cops could have restrained their leap at the first suspect available; judges could have shed their see-no-evil reflex when presented with prosecution offers of bogus science.
The two stories show—as only stories could—that what we need is not more rules and harsher penalties for rule violations, but a cultural shift toward an environment in which each actor strongly feels his or her individual role in producing a just collective outcome.
Wrongful convictions can’t be depicted in mechanical drawings. They can’t be adequately captured by linear, sequential, analyses as if they were mechanical failures in an engine. Wrongful convictions involve too many humans.
The factors that have to be identified are influences that bend the probabilities, not simple “causes” with inevitable “effects.” The telling of wrongful conviction stories requires an understanding of science and technique, but also of character, contingency, history, and emotion.
Grisham’s approach shows one way to get the stakeholders to do something differently next time: involve all the stakeholders in telling the story—that is, in telling their own stories and to each other.
That, at least, is the possibility now being explored through the Sentinel Events Initiative demonstration sites now being supported by the National Institute of Justice and the Bureau of Justice Assistance.
When your local system uncovers a mistake, don’t wait for Balko and Carrington to arrive and explain it to you. Bring everyone to the table and collaborate in carefully piecing together the story of how it happened and why.
Give everyone a chance to speak up—to do their best to put themselves in position to make a better choice when they are next forced to choose.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.