In Steaming to Bamboola, his account of life aboard a tramp freighter, Christopher Buckley describes a crew bringing their ship to dock in a crowded harbor. The first mate is on the bow with a walkie-talkie, relaying the closing distances to the helmsman on the bridge.
The ship rams a Coast Guard cutter amidships.
The mate is thrown to the deck. He scrambles to his feet, retrieves his radio, and shouts an urgent message into the handset.
“Don’t tell anyone!”
That reflex is also characteristic of criminal justice system officials in the aftermath of catastrophes.
To see it in action, consider Massachusetts Inspector General Glenn Cunha’s huffy response to questions from Middlesex County District Attorney Marian Ryan, reported in the Boston Globe.
Cunha led a $6.2 million investigation into the work of two rogue forensic chemists, Annie Dookan and Sonja Farak, whose mishandling of drug evidence resulted in the dismissal of 61,000 drug charges in 35,000 cases. (Yes, you read those numbers right.)
Dookan’s depredations centered on the Hinton Crime Lab; Faraj’s on a state laboratory in Amherst. But Farak had also worked for a period at the Hinton lab, and the District Attorney wanted to know whether it was true that Farak had not botched any Hinton tests.
If so, Ryan asked the Inspector General’s office to explain “how the scope and methodology of its investigation allows it to reach that conclusion.”
A number of judges have raised similar questions.
Inspector General Cunha sternly replied that he was confident that no chemist other than Dookan had committed misconduct in the Hinton lab, and he pointedly left it at that. DA Ryan and the public know everything he thinks they need to know. (In fairness to Cuhna he had prepared an earlier report criticizing lab management’s performance in failing to intercept Dookan’s errors over a lengthy period.)
“Bad Apples” and the System
Calls for “accountability” in criminal justice after a lab scandal or a police shooting or a wrongful conviction focus on accountability-as-punishment.
There’s no question that Dookan and Faraj were “bad apples” and their prosecutions were absolutely necessary.
No system can survive without sanctioning its rule-breakers, and public trust in the criminal justice system depends in part on the punishment of insider misconduct.
But the two chemists’ convictions are also a bad place to stop.
The government’s traditional response after “bad apples” have been charged (or not) often amounts to “nothing to see here, move along.”
But “accountability” in criminal justice requires more than “performance reviews” of individual sharp-end actors. We need “forward-looking accountability” that recognizes that Dookan and Faraj didn’t create this shambles on their own.
The lab scandals were system failures. If we ask “Who is responsible for the drug lab scandals?” the only real answer is “Everyone involved, to one degree or another.”
“Everyone” includes people distant from the labs who created the lab’s environment, its incentives, and its guardrails
How and why were these two hired? Trained? Supervised? What “production pressures” buffeted the labs? Why? Who funded them? At what level? Why? Why did these two choose to zig when they were supposed zag?
Why did prosecutors, defenders, and courts fail to provide some resiliency? Was it funding issue? A training issue? A caseload problem?
The worlds Dookan and Faraj inhabited await the next chemists who come along.
They may not be “bad apples” in the Dookan-Faraj range, but they may not be exemplary apples either. Have we changed their incentives?
The Lure of Infallibility
Why can’t the Inspector General just answer the DA’s questions?
The officials’ impulse to hold information close to the vest is usually attributed to their fears of liability, and we usually greet that explanation with a “That’s just how the world works” shrug.
But take a step back, and we might notice that there’s a logic worthy of the Marx Brothers at the root of that defensive clench.
The fact is, the agencies’ fears come down to worry that the public—in its civil jury incarnations—will award heavy damages if it learns about mishaps and violations. So, agencies keep information out of sight because ultimately that keeps it away from the public-as-jury.
But as UCLA law professor Joanna Schwartz has shown, 99.98 percent of judgments in police misconduct cases are actually paid from the public’s (not the practitioners’) funds.
So, locking down information amounts to keeping secrets from the public to prevent the public from spending its own money on restorative justice that the public endorses. Defenses of “qualified immunity” usually submerge the fact that the public is awarding its own tax money, not reaching into the practitioners’ wallets.
The Perils of ‘Structural Secrecy’
Meanwhile, some system actors (like the Massachusetts Inspector General) are keeping some secrets from others (like the DA and the judges to whom she must answer). In the end, we develop the “structural secrecy” that Diane Vaughan observed in her account of the disastrous Challenger launch decision—a justice system keeping secrets from itself.
All the information is there somewhere; but no one has it all.
You can just see Groucho and Chico working this out.
Patient safety pioneer Dr. Lucien Leape once felt compelled to point out to his colleagues that the mission of a hospital is not to avoid lawsuits, but to promote the health of its patients.
It’s worthwhile remembering that the mission of a criminal justice system is not to duck lawsuits; it is to do—and at least as importantly, to be seen to do—justice.
It can’t be just the money that motivates all of this—after all, the money comes from the indemnifiers, not from the officials who are squirreling the facts away. They will keep their jobs.
Somewhere underlying their habitual furtiveness is the abiding belief that they personally, and the criminal justice system as a whole, are best served by preserving an aura of infallibility: “Just leave this to us; we get things right.”
Those days are gone, and they aren’t coming back.
The National Registry of Exonerations has identified 2,676 wrongful convictions. Endemic frailties in various forensic techniques, eyewitness memory, and interrogation practices have been exposed, indicating that those known errors are the tip of an iceberg. Cellphone cameras and security video are everywhere. Police body cameras are multiplying.
This is bad news for officials who see transparency as directly proportional to pain: who think that the more the public sees, the more the officials suffer.
But is there an alternative to “less is more” where disclosure is concerned?
More is More
Why not try what the Tucson, Arizona police tried after recent deaths in custody of two Latino men?
Tucson treated the two events (and a third issue, the Department’s own tardiness in releasing news) as opportunities. Construct an all-stakeholders process, independent of the ongoing disciplinary reviews, involve the community, share the information, and you might actually earn trust.
Maybe more disclosure would mean more legitimacy.
Tucson convened a “Sentinel Event Review” team (the term is borrowed from medicine) of 15 stakeholders: medical and mental health experts, community leaders, and (by design) police critics. The Tucson Police enlisted Michael Scott of Arizona State University and John Hollway of the University of Pennsylvania’s Quattrone Center as process experts. The police department gave the group everything in the files, including the body-camera footage.
The group issued an unflinching 80 page report, detailing 53 recommendations for improvements. For example, the Spanish-language capacity of the 911 dispatchers needed bolstering: the cops on the scene were inadequately informed about the medical condition of the arrestee.
As one community member of the Sentinel Event Board said, the situation showed indifference to the safety of Spanish-speaking people in need of police help. Tucson (although its population is one-third Latino) “is an environment that isn’t as supportive of Latinos as it should be,” she said.
Officials at Tucson’s 911 center said they are now moving quickly to arrange basic Spanish-language training for call-takers, a review board recommendation.
Tucson police chief Chris Magnus said most of the changes reviewers urged can be done at relatively low cost. Some already are in progress, such as a new program in which people of color interact with cadets at the police academy to explain cultural differences or share their concerns about law enforcement.
So, one dividend earned by more disclosure is protection against repeated tragedy, and repeated pay-outs—many pay-outs—from many similar future events.
But another dividend that transparency and community participation earned for Tucson police—one that an information shutdown could never have created —was a growth in public trust in the law.
Community stakeholders joined the effort reluctantly, and when they joined they took some criticism from skeptical neighbors. But one community member told the Arizona Daily Star that she came away believing the Tucson Police Department (TPD) is sincere about wanting to learn from past mistakes.
Magnus, who called for the in-depth review “did not have to do this,” she said.
“He did it because he understands TPD has a responsibility to the community.”
The public knows that, as James Reason once put it, error is part of the human condition and can’t be eliminated. But it also agrees with Reason that the conditions humans work under can be repaired.
The public should expect us to learn from our errors. The transparent, all-stakeholders event reviews that work for aviation and medicine can work in criminal justice.
More shared information can mean more justice.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.