Unfair (11 page)

To feel good about ourselves, the obvious answer is to swear off dishonesty or keep it small.
Cheating on a few questions in a psychology experiment doesn't make us feel like a bad person, nor does failing to report a small gambling win on our taxes.
But there's another way to address the inner conflict that arises when our actions are at odds with our positive self-image: trick ourselves into thinking we're not behaving so badly after all.

So, although 51 percent of high school students in one study admitted to having recently cheated on a test, and 61 percent admitted to having lied to a teacher, and 20 percent admitted to having stolen something from a store, 93 percent of those surveyed reported that they were “satisfied with [their] own ethics and character.”
Likewise, while taxpayers end up defrauding the government of some $385 billion each year—often by failing to report income—well over 90 percent of the public agrees that “it is every American's civic duty to pay their fair share of taxes” and that “everyone who cheats on their taxes should be held accountable.” Though we are reluctant to acknowledge it, we all have this capacity for self-deception.

If we want to understand why people act dishonestly, we need to look at the factors that determine how easy or difficult it is to rationalize dishonest behavior.
When justifying our actions is a struggle, we find it more difficult to break the rules.
And therein lies the key to prosecutorial misconduct: most lawyers aren't consciously trying to cheat defendants; they're just extremely good at deceiving themselves.

One of the most promising strategies that people use to rationalize an ethical breach is to downplay the causal link between the dishonest action and any associated harm. If I can convince myself that my behavior is unlikely to be damaging, it becomes much easier for me to justify it and maintain my positive self-view.
And the greater the distance—and the more intervening elements—between
what I'm thinking about doing and any clear detriment, the less motivated I'll be to choose the honest option.
For example, scientists have found that people will cheat about twice as much when they are cheating to earn tokens that can be exchanged for money as when they are cheating to earn money directly.

To understand why this is relevant to prosecutorial misconduct, consider two attorneys. One, like Deegan, is deciding whether to hand over a potentially exculpatory report on blood evidence found at the scene of the crime; the other is deciding whether to pay a $10,000 bribe to a wavering juror to gain a conviction.

Research would suggest that the second prosecutor is much less likely than the first to take the dishonest action, because it is harder for him to see his actions as innocuous. After all, they come right at the critical moment of decision. And there are no other apparent interveners who can be blamed. By paying off the decision-maker, the second prosecutor is determining the outcome.

The first prosecutor, by contrast, is operating at a safe distance from any harmful consequences. Even if he doesn't hand over the report, the defendant's lawyers are likely to uncover additional evidence to vindicate him—if he is innocent—on their own. As a result, they should be able to present a convincing case to the jury, which should acquit. So the blame for any wrongful conviction would fall squarely on the defense attorneys and jurors.

In the Thompson case, the fact that Deegan was working on the robbery trial, not the murder trial, would have made it even easier for him to distance his actions from Thompson's death sentence: after he completed his own role in the prosecution, there was still an entire additional trial that had to take place.

The nature of the adversarial system, which places the burden on lawyers to zealously advocate for their positions but does not charge them with the task of being the ultimate decision-makers, may itself promote dishonesty by allowing attorneys to feel less responsible for the consequences of their actions. And the earlier in the trial process it is, the more attenuated the connection to any
eventual harm is likely to seem. All other things being equal, we ought to expect more dishonesty in the weeks leading up to trial than in the time after a jury is impaneled and proceedings have begun. Once a conviction has been attained, the process ought to reverse itself: new dishonest actions that simply maintain the status quo (for example, denying the defendant a fair appeal or a parole hearing through a dishonest act) should become easier to rationalize.

Since Thompson was on death row when Deegan revealed to his friend Riehlmann that he had withheld potentially exonerating evidence in Thompson's case, it would seem harder for Riehlmann to justify not passing on the information to Thompson's lawyers. But unlike Deegan, Riehlmann had not worked on the case and hadn't failed to hand over evidence. He had only
heard
about the violation. Just as important, Riehlmann had learned about it well after Thompson had already been convicted and put on death row. And given that Thompson's blood type was not known, it would not have been clear to Riehlmann that passing on the information to Thompson's attorneys would make any difference at all.
Indeed, it was possible that even if the report had been handed over, the defendant might have turned out to have the same blood type as the perpetrator, which would have made him
more likely
to be convicted, not less.
Although we can't know for sure what led Riehlmann to keep Deegan's confession secret for five years as Thompson's life hung in the balance, it seems plausible that someone in his position might do so without feeling much responsibility at all.

Note, too, that omissions and commissions are viewed differently. It is easier to see the harm in a commission (the hypothetical prosecutor bribing a juror) than in an omission (Deegan failing to turn over the lab report). An omission does not seem to upset the “natural” course of things, whereas a commission seems to steer events onto a different path. And omissions tend to be more readily justified because there are almost always benign
reasons for not doing something: “I didn't understand it was my responsibility,” “No one told me,” or simply “I forgot.”

So, the fact that
Brady
violations involve a prosecutor not doing something that she is supposed to do may make them particularly likely to occur.
Other common types of prosecutorial misconduct involve omissions as well: for example, failing to alert the court when you know your witness is lying on the stand, or turning a blind eye to a law enforcement officer concealing or destroying evidence.

It can also feel like we're not taking action if there is someone (or something) else we can characterize as controlling our behavior. If our boss made us do it, we are not responsible for what happened. Attorneys in the criminal justice system are often acting at the behest of another: an assistant D.A. will be very aware that he is working for the D.A., just as a public defender will be aware that it is his client who ultimately calls the shots. As a result, the establishment of rigid hierarchies and chains of command may provide a sturdy ladder for misconduct.

Another way we manage to justify bending the rules is through social comparison. Of the dishonesty I've witnessed in my life, it's uncanny how many of the incidents involved groups of people rather than lone individuals. One person crossed the line and then suddenly three others were right there with him. Being in a group seems to alter people's moral compasses, aligning the dials and leading people who would otherwise act ethically toward trouble.
Researchers have begun to look more deeply at this seemingly infectious aspect of dishonesty. Rather than viewing our behavior in absolute terms (“Is it moral or immoral to cheat on this test?”), we measure our actions against those of people around us (“Are my best friends sharing answers on the exam?”).

In a recent study, psychologists had a group of people complete a test in which the better each person performed, the more money
he earned.
One of the “test-takers,” who was actually working for the experimenters, was instructed to cheat very publicly by standing up, just sixty seconds into the test, and announcing that he had finished, had gotten everything right, and would therefore be getting the maximum payment.
The question was whether this behavior would encourage other people to cheat.
It did, but only when the cheater seemed to belong to the same group as everyone else in the room—that is, when he was wearing a T-shirt from the university where the experiment was being administered.
When he was wearing a rival university's T-shirt, cheating actually
dropped
significantly below the control condition.

In an adversarial legal system, lawyers have especially strong group identifications—it's the prosecution versus the defense—and under such circumstances they should be particularly susceptible to moral cues from their compatriots. It is revealing in this regard that episodes of prosecutorial misconduct are often not isolated, as we would expect if it were a simple matter of rogue agents pursuing their own corrupt ends.

Responding to Justice Scalia's characterization of the prosecutorial misconduct in Thompson's case as “a single
Brady
violation by one of [Orleans Parish's]…prosecutors,” Justice Ruth Bader Ginsburg, in a blistering dissent (which she read from the bench), pointed out that there were actually “no fewer than five prosecutors” who had acted to deprive Thompson of his rights and had “kept from him, year upon year, evidence vital to his defense.”
As she described, this “was no momentary oversight, no single incident of a lone officer's misconduct”: “Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive.”

Bruce Whittaker, the prosecutor who had initially approved the armed robbery indictment for Thompson, had received the crime lab report showing that the perpetrator's blood was type
B and had placed it on the desk of James Williams, an assistant D.A. who was trying the case.
But neither man turned it over to Thompson's counsel—despite an official request for all information “favorable to the defendant” and germane “to the issue of guilt or punishment,” including “any results or reports” of “scientific tests or experiments.”
Then Deegan, who was working with Williams, transferred all of the physical evidence from the police property room to the courthouse property room, but left out the bloodstained swatch.
Neither Williams nor Deegan mentioned the swatch or the crime lab report during the trial—and the swatch was never seen again.

There were other critical materials that the prosecution team (including Eric Dubelier, who was partnered with Williams on the murder case) had failed to pass along to the defense.
Thompson's attorneys might have seriously undermined the testimony of Richard Perkins, the man who first provided the police with Thompson's name, if they had been able to show that he lied under oath when he said that he had no knowledge of reward money before coming forward, but the prosecution did not pass along the audiotapes of Perkins's discussion of the cash prize with the victim's family.
Likewise, the defense team might have shown the inconsistencies between the testimony of the prosecution's key witness, Kevin Freeman, and what Freeman purportedly told Perkins about the murder, but the defense team never received the police report containing Perkins's recollections.
And, critically, Thompson's attorneys were never able to point out the discrepancy between the eyewitness's initial description of the murderer's “close cut hair” and Thompson's Afro, because they were never given the relevant police reports.

All of this suggests a
culture
of dishonesty—and indeed there is now significant evidence of prosecutorial misconduct within the D.A.'s office over a period of years.
As Justice Ginsburg put it, “Disregard of
Brady
's disclosure requirements were pervasive in Orleans Parish.”
District Attorney Connick himself had been
indicted for withholding a crime-lab report in a different case,
and several other convictions had been overturned by Louisiana judges based on prosecutors' failing to disclose
Brady
material while Connick was in charge.

As the tragedy of the New Orleans prosecutor's office shows, dishonesty can spread like a plague when given the right conditions. We take cues from those around us in deciding which behavior is acceptable and which is not—and when the norm is to bend the rules, it will be hard for most people to resist. On a broader scale, the negative stereotype of lawyers as cutthroat, manipulative, and amoral may actually
cause
unethical behavior, because it suggests pervasive and egregious dishonesty in the profession. Everyone else is doing it, so why not me?

Clearly, we take cues for our moral actions from those around us.
But we also take cues from our own past behavior.
This explains, in part, how we can start with a very minor act of dishonesty and gradually shift to more serious transgressions over time. Should I cheat on this math test or not? Well, I copied my algebra homework from my friend last night and this is pretty much the same thing, so it really isn't going to make a difference in how I feel about myself.
Take a few steps down the path of dishonesty and you may soon find yourself miles away from the person you thought you were.

It is not just that small infractions often lead to bigger ones; scientists have also shown that greater dishonesty can be induced by simply altering a person's moral self-view.
In one of my favorite experiments, researchers had participants take a test while wearing sunglasses that they were told were either genuine designer models or counterfeits.
You might expect that the fake shades would make no difference at all, but in fact the percentage of people cheating more than doubled in the counterfeit condition.
According to the researchers, the participants wearing the counterfeit glasses suddenly saw themselves in a new light: with the badge of dishonesty on their face, it was easier to cheat. And
they also viewed their peers differently, predicting a significantly higher rate of cheating than did the people wearing “authentic” sunglasses.