Unfair (4 page)

A former co-worker of my wife's was recently shot in the neck as he walked home from watching
Monday Night Football
at a bar a couple of miles from where we live in Philadelphia. It was horrible, shocking news, and my immediate reaction was to find some way to explain it away by identifying a flaw in his behavior that night. He shouldn't have walked home so late—that was courting trouble. He must have resisted giving the robber his money; why else would the guy shoot him? I couldn't face up to
the truth: that there are dangerous people looking for victims at all hours of the day who will pull the trigger before you even have a chance to reach for your wallet.

What is surprising about this tendency is how robust it is: I think about these things for a living and I still didn't realize what I was doing until my wife pointed it out. Indeed, the power of the dynamic can lead us to blame even the most innocent of victims: children. When charges of child sex abuse were made public against the former defensive coordinator for Penn State football, Jerry Sandusky, one might have expected a uniform outpouring of sympathy for the victims, but that's not what happened.
Penn State students rioted after the firing of Joe Paterno, the head coach, who had failed to stop the abuse after being told directly about an incident in which Sandusky was caught raping a ten-year-old in the locker-room showers.
Another victim, who courageously came forward to recount assaults by Sandusky that started when he was just eleven or twelve—and is credited with initiating the investigation that eventually led to Sandusky's imprisonment—was so bullied in the aftermath that he had to leave his high school.

We may see child abuse as worse than abuse of an adult—or the rape of a virgin as worse than the rape of a divorcée—but the greater harm means that harshly punishing the perpetrator isn't sufficient to restore a “just world.”
To do that, we may need to cast the victim as partially responsible.

Clearly our labels can change when we are strongly motivated to revise them, as when a person initially categorized as innocent or good suffers a terrible crime.
Why, then, do most labels prove so difficult to peel off?

Research suggests that once we have summed someone up, we search for data confirming that identity and disregard or minimize evidence conflicting with it. Of course, it doesn't feel that
way. It feels as though we are just dispassionately sorting through the details.
But really our minds are bending the facts, sawing off inconvenient corners, and tossing away contradictory information so that everything can be fit into our ready-made boxes.

Say you learn that a friend's roommate is a waitress.
Without any conscious effort, that label will prompt you to remember things about her appearance, behavior, and lifestyle that are consistent with her occupation—and distinct from what you'll remember if you're told she's a librarian.
And if you know she's having a phone interview in the next room, the words and phrases you'll pick out through the wall are completely different from the ones you'll pick out if you think she's speaking with her lawyer.
In an experiment along these lines, those listening to a degraded audio recording of what they believed to be a criminal suspect were significantly more likely to hear the statement “I got scared when I saw what
it'd
done to him” as “I got scared when I saw what
I'd
done to him” than when they thought they were listening to a job candidate.

Labels have an amazing way of reinforcing themselves even when that seems impossible.
In a great demonstration, two groups of students were asked to draw a young man's face
while looking at his photograph
, but one group was told he was black and the other was told that he was white.
What is incredible is that the label influenced certain people's depictions: those who believed that traits like race are immutable and useful in predicting behavior drew portraits that distorted features to align with the racial category they had been given (see
this page
).

The consequences of this drive for coherence and confirmation can be disastrous.
Medical research suggests, for example, that one of the major causes of physician error arises from the fact that doctors come to a conclusion very early in their assessment of a patient and then stick with their judgment even as they encounter contradictory evidence.
Unfortunately, the impact on our criminal justice system is no less severe. “
Tunnel vision” is an endemic
problem in the investigative world, corrupting even seemingly objective judgments like fingerprint analysis.

In fact, DNA testing—the shining jewel of the forensic world—appears to be susceptible to confirmation bias. It's hard to believe: in television dramas filled with hunches and subjective judgments, the matching of DNA is portrayed as the cut-and-dried part of the case.
You've got a feeling a suspect is lying to you; you enter his DNA into the FBI's Combined DNA Index System (CODIS), which has DNA profiles for some twelve million convicts and suspects and about half a million crime scenes; and after a short commercial break, you know for sure.

But the reality is more complicated.
In one recent study, researchers gave experts a DNA sample, telling them that it was
part of a gang-rape case in which one of the perpetrators had accepted a plea deal and was testifying against the others.
They needed to confirm that one of the suspects who denied any involvement had, in fact, taken part in the rape.
As expected, the experts found that his DNA matched the sample, corroborating the witness's account and the prosecution's case. However, the researchers then took the same biological evidence and gave it to seventeen other DNA analysts without providing any backstory. What happened?
Only one of the seventeen experts agreed with the original group that the DNA was a match. Sequences of amino acids do not rearrange themselves to fit the prosecutor's frame, but that doesn't mean there is no room for bias. Someone has to interpret the results. And the first set of analysts couldn't help but be swayed by the information they had already been given.

Confirmation bias likely played a central role in the case of David Rosenbaum.
Once David was labeled a drunk, the responders and medical professionals appeared to focus on finding evidence that supported that description.
Interestingly, the first people to encounter David, the Pritchetts, did not smell alcohol on David's person. Why not?
Well, perhaps because they weren't looking for it, since their theory was that the man on the sidewalk had suffered a stroke. For those assuming that this was an ETOH, though, the odor was very noticeable.
As one of the firefighters recounted, “I could smell the alcohol reeking from him, like it was coming out of his pores.”

This, in turn, reinforced the notion that the cause of the man's condition was intoxication, when in fact the smell of alcohol is not very diagnostic at all.
According to the U.S. Department of Health and Human Services, well over half of adults in the District of Columbia count themselves as active drinkers.
After dinner on a Friday night, there are thousands of people in the city who, like David, have consumed some alcohol in the previous four or five hours. You could sit in the emergency room at Howard during the night shift and find scores of patients—victims of heart attacks,
gunshot wounds, allergic reactions, pneumonia—with the faint odor of booze on their breath.

But the problem wasn't just that the responders engaged in a biased search for clues; it's that they evaluated the evidence they did uncover in a selective fashion—treating facts that supported their existing understanding of the case as highly persuasive, while dismissing those that did not.
For example, one of the firefighters reported that he immediately ruled out the possibility that he was dealing with a diabetic because he looked for a medical identification bracelet, which he often does “when people can't talk,” and didn't find one.
The lack of a bracelet seemed to reinforce the intoxication explanation, but it doesn't actually preclude a diabetic reaction at all: the victim might not own a bracelet, might have taken it off, or might not yet have been diagnosed.

Likewise, the Pritchetts and the initial cadre of cops, firemen, and EMTs all noticed that David was wearing an expensive watch and wedding band.
According to Commander Robert Contee of the Second Police District, it followed that “there was no reason to think it was a robbery.” But, of course, that's incorrect. The robbers could have taken his wallet and either been scared off at that point or not noticed his ring and watch.

Indeed, if responders had gone in with the assumption that they were dealing with a crime, they most likely would have uncovered powerful evidence within minutes of arriving, like a witness down the street who'd seen David's attackers just minutes earlier and noted that they looked suspicious (going so far as to write down the first digits of their license plate number).
With a different starting frame, they might have noticed that the back pocket of David's pants was torn—a potential sign that his wallet had been ripped out during a robbery.
As it was, the first person to spot the tear was a nurse at Howard cleaning David up. And she wasn't in a position to make the connection because she didn't know the circumstances in which David had been discovered.

A big part of why labels stick to victims is that, in many cases,
we aren't even aware that we are operating with a label or that it might be wrong. We never revisit our initial assumptions to test whether they still hold (if they ever did). Numerous people who saw David accepted the label of drunk without questioning the frame. And they did so in the face of strong counterindications. If the man was a drunk, where was the booze, and how had he gotten so intoxicated without a wallet or any money? How had he come to rest on the sidewalk in a wealthy residential neighborhood when he wasn't able to lift himself off the ground on his own?
There was actually plenty of evidence suggesting that this was a much more serious condition than ETOH: the man's inability to speak, his failure to respond to oxygen, his vomiting, his extremely poor motor control, his pinpoint pupils, his elevated pulse, his bleeding head, and his inability to use the right side of his body, among other things. But each one was ignored or minimized because the established narrative didn't accommodate it.

The failure to appreciate counterevidence was almost certainly exacerbated by the fact that the responders did not make independent assessments of David. If they had each come across him separately and attempted to determine the cause of his condition, they might well have reached different conclusions, and that could have led them to discover the head injury much more quickly.
The lack of independent assessment is puzzling because police departments, with all their experience conducting eyewitness interviews, are well aware that when one person, for whatever reason, makes public his observations and conclusions very early on in the process, others feel pressured to conform.
This is why when, say, six people witness a bank robbery, detectives usually elicit statements and conduct lineups with each one individually.

In the end, it's hard not to ask the “what if” questions in David's case. What if the criminals had used a knife instead of a pipe? What if David had been carrying his ID? What if his wife had gone looking for him and had been there when the ambulance arrived, or met the hospital staff at Howard? What if the
Pritchetts had driven David to the hospital and then conveyed their observations directly to the triage nurse?

All of these things might have radically altered the course of events the night David was attacked, but they didn't happen—and it doesn't just come down to bad luck. The errors were predictable and preventable. That fact makes David Rosenbaum's death especially tragic, but it also offers a glimmer of hope—one that David's family seized upon.
They decided to offer the District of Columbia a deal: they would drop their lawsuit against the city if it created a task force to reform the Department of Fire and Emergency Medical Services to help prevent similar tragedies in the future.
A number of these reforms, like ensuring that both EMTs and firefighters are fully prepared to carry out medical protocols and that they are held accountable for their performance, can help future responders avoid the critical mistakes that were made in David's case. But we need to go further to get at the root of the problem: preventing damaging labels from taking hold in the first place.