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Exonerations of wrongly convicted prisoners are at an all-time high. Last month, the governor of Washington put executions on hold because, since 1981, when the state last updated its capital punishment laws, a majority of the 32 death sentences that were imposed were overturned. More than a dozen other states have also called a halt to executions, for various reasons.
And yet, three former California governors — George Deukmejian, Pete Wilson and Gray Davis — are urging the state to speed up a clearly flawed process of deciding who's to die. Their approach could theoretically limit the state appeals process, which now generally takes 12 to 15 years, to five years.
It may be easy for most people — even former governors — to ignore or dismiss these injustices. Many of the wrongly convicted are poor black men, invisible to the majority of Americans. Too many of us buy into what's on TV detective shows: irrefutable scientific tools that identify the guilty beyond a shadow of a doubt. Plus, nobody wants to admit that blameless people have died at the hands of the state. Humans will do almost anything to preserve their self-regard, including avoiding the implications of exonerations, every one of which, as social psychologist Carol Tavris says, "is stark, humiliating evidence of how wrong you are."
The facts should send chills up anyone's spine.
Take eyewitness testimony. According to the Innocence Project, which uses DNA evidence to challenge wrongful convictions, eyewitness misidentification is the culprit in more than 70% of the cases.
Researchers have pinpointed the way misidentifications increase dramatically across class, age and racial lines. A recent Stanford study found that an interviewer's perception of whether subjects were white or black changed depending on such circumstances as where the subjects lived and whether they had been imprisoned.
Memory, an obvious aspect of eyewitness evidence, is just as insidious. "I remember what I saw" is a misleading illusion. And despite what instinct tells you, those who tell very detailed and consistent stories are more likely to be liars than those who are uncertain or self-contradictory.
Memory is malleable. It can be easily "primed" or implanted, when statements are heard again and again. As Nobel laureate in economics Daniel Kahneman points out, "familiarity is not easily distinguishable from truth." That phenomenon may explain why innocent people confess, usually after hours of persuasive talk from prosecutors. Up to a fifth of those later found to be innocent confessed to the crime.
Popular television crime shows suggest that misperceptions and flawed memories don't matter because "scientific" evidence trumps all. In truth, what witnesses see and hear and experience is still often the only evidence presented. Worse, "scientific" evidence isn't necessarily reliable or even scientific.
A single fingerprint can land you in jail, and yet the notion that everyone possesses a unique set of prints has not been proved beyond a doubt. Though certainly useful, fingerprints are not the fail-safe method of establishing identity that has been sold to courts and the public. Ballistics, hair sampling, matching teeth marks — all seemingly solid evidence — are potentially unsound. Texas has just decided to review convictions based on microscopic hair analysis, a forensic tool that DNA analysis has showed to be iffy at best. At least one Texas inmate, Claude Jones, was found guilty and executed in 2000 primarily because of microscopic hair analysis that was later proved wrong.
Even the gold standard of evidence — DNA — is only as good as the lab handling it. It can offer a billion to 1 or more probability that the suspect was at least present at a crime scene. But DNA samples are often small or degraded or simply misidentified. It's sobering to note, as the National Research Council did in a report in 2009, that only 60% of publicly financed crime labs even employed a certified examiner.
All forensic evidence is only as strong as its weakest link. Whether the lab is analyzing bones, hair or genetic material, an error rate of 1 in 100 could translate into many thousands of wrongly convicted people. The good news is that the reliability of all this evidence can be improved.
The Justice Department and the National Institute of Standards and Technology this year created panels of scientists and legal experts to finally set federal standards for forensic science and training practices. Eyewitness identification is more reliable if the officer conducting a lineup doesn't know who the suspect is, or if witnesses see the potential suspects separately rather than all at once. The forces behind false confessions become all too clear when interrogation sessions are taped. More research and more oversight are crucial.
Yes, the U.S. justice system ranks as one of the fairest in the world. But that doesn't exonerate it from the terrible mistakes it has made.
There's no doubt that many of the prisoners now on death row in California have committed unspeakable crimes. But if exoneration rates tell us anything, it's that some could well be innocent — the victims of bad science, wrong testimony and citizens who find it too easy to look the other way. Justice will never be perfect, but until the state acknowledges the gaps in the process and institutes reforms, it shouldn't be in a hurry to speed up the pace of executions.
K.C. Cole is a journalism professor at USC and a former science writer for The Times.