Unfair (5 page)

When we know that extraneous elements can lead to harmful labels, we should consider intervening to counteract them. Controlling the influence of disgust, for example, may be as simple as providing first responders with menthol salve to put under their noses to neutralize the smell of vomit, feces, or a dead body. We also need to take action when we know that victims with particular personal characteristics—the elderly, minorities, homeless people, addicts—tend to be devalued and receive substandard treatment.
We could start by introducing more empathy training designed to get police officers, EMTs, and ER nurses to see members of these groups—who are overrepresented in 911 calls—as human beings worthy of compassion and careful treatment.

Perhaps most important, responders should conduct their own blind assessments of victims—whether that involves giving a cognitive evaluation, searching the crime scene, or conducting a forensic test. Data (“His eyes are not dilating properly, and his
pulse is abnormal”) should be shared; labels (“He's a drunk”) should not.

Treating someone based on a label—such as ETOH—should always be a last resort. When we act upon a single label, we almost always lose vital nuance. With the power failing and the floodwaters rising as Hurricane Katrina made landfall, the medical chairman at Memorial Medical Center in New Orleans had to make an evacuation plan.
He used a shortcut to help sort the patients: those who possessed do-not-resuscitate orders would be given lowest priority in leaving the hospital.
In that panicked moment, the choice seemed justifiable—as he explained later, these folks seemed to have the “least to lose”—but, in retrospect, using that label as a sorting mechanism was a grave mistake.
It did not help doctors distinguish between those who were going to die anyway and those who could be saved; nor did it divide those willing to die from those holding hard to life.
A DNR simply informs medical professionals not to engage in CPR if the person stops breathing or her heart ceases beating; the order is not meant to affect the delivery of other medical care.
Moreover, a person may choose to have a DNR whether or not she is seriously ill. Using the label, however, gave the chairman the illusion of objectivity.

The patients abandoned on the seventh floor were never just one label.
They carried an almost infinite array of tags—recovering, terminal, insured, elderly, forty-something, mother, son, fat, handsome, combative, kind. A few of these were written on their charts, or read from their faces, coughs, and trembling hands. But most were invisible.

No one deserves to be summed up in a word. And no one should die because of an acronym.

The back door of the apartment had been bashed open with a blue mop.
Someone had washed bloody hands in the sink.
And if you walked right up to the front staircase and bent down, you could see where those same hands had brushed the wall near the banister—streaks of red fresh against the white.

Dawn Engelbrecht knew that something was wrong as soon as she saw her five-year-old boy walk into the bar where she worked.
Holly Staker was supposed to be watching him and his younger sister, but there he was, little Blake, standing in front of her.
A neighbor had noticed him playing outside in the dark and had brought him by.

No one picked up when she called the house, but she got through to Holly's mother, and the two of them met at 442 Hickory Street.

The house is on the north side of Waukegan, Illinois, a classic brick two-flat set close to the neighboring houses. Most people would call it a nice street, though it has known better times. The houses have steps cut across the wide green verge between the street and the sidewalk. But 442 is different from the others: the footpath follows the left side of the house around to the back. You have to jog right if you want the front door.

It was locked, as Dawn had left it.
But when she finally turned
the key of the second-floor apartment, she found the television on.
A single white tennis shoe lay on the floor.
A chair in the dining room was turned over.

They called for Holly, but there was no answer.
Taylor, the two-year-old, was fine, though—safe and sound, lying on her brother's bed. Maybe Holly had just gotten bored and left?

It was not until the police arrived that Dawn thought to look behind the bedroom door.

Eleven-year-old Holly was curled in the fetal position, her hands up by her face, her black stretch pants cast aside, the missing white shoe tangled in one of the stirrups.
She had been stabbed twenty-seven times and raped.

A year later, twelve jurors fixed their gaze on Juan Rivera, the man accused of the crime.
Juan—a petty criminal, barely twenty—sat motionless. They had heard the evidence, the alibis, the reports, listened as each witness and expert gave his or her account. They had seen the pictures of the bedroom and of Holly's face, and it was time to decide.

Guilty.

And so it went at the second trial as well, ordered by the Appellate Court of Illinois after Juan's initial conviction was overturned. Different jury, same result.

For a man like Juan, sentenced twice to life in prison without the possibility of parole, to get a third chance before a jury is as rare as a snowflake in June. But his lawyers found a way: DNA evidence.

It had always been there, those twelve years Juan sat in prison.
A vaginal swab had been collected at Holly's autopsy.
But after being labeled, it sat in an evidence locker until 2005, when it was finally tested.

The results of the analysis were startling.
The semen in the sample belonged to a single man, and that man was not Juan Rivera.

Proof. Vindication. After so long in the dark, it felt as if someone
had lit a lantern inside his body. He would walk out of that prison. He would be reborn. There was life to live.

It took four more years to reach that third trial, but the moment finally came—the opportunity for science to redeem the failures of the past and save this condemned man.
With the lab test offering exoneration and with no physical evidence linking Juan to the crime, the outcome seemed like a foregone conclusion.

But something curious happened once proceedings got under way.
The prosecution didn't back away; it doubled down, advancing two explanations for the autopsy evidence: either the DNA sample had been contaminated or Holly had had sex with someone else before she was raped and killed by Juan.

The problem for the prosecution was that there was nothing to suggest that the swab had been compromised, and the experts were in agreement that the semen had been deposited shortly before the victim was killed.
Semen tends to drain into underwear, but no sperm was found on Holly's clothes.
That meant that the prosecution had to convince the jury that an eleven-year-old girl had sex with a mystery man directly before being violently attacked by Juan Rivera, who managed to leave the mystery man's semen completely intact in the girl's body and to provide no trace of ever having touched her himself, let alone of having been inside the apartment where she was found.
The account seemed implausible, to say the least.

Once more, twelve jurors retired to the deliberation room to ponder the tragedy at 442 Hickory Street.
When they returned, they were met with the gaze of Holly's twin sister, Heather, and Juan's brother, Miguel.
Juan, on the threshold of exoneration, was silent and ready.

Guilty.

It was a verdict that Juan's lawyers described as “unfathomable,” but it had happened. Again.

The defense had provided many facts to raise a reasonable doubt in the eyes of the jury.
It wasn't just that none of the copious
forensic evidence at the crime scene—blood, fingerprints, hair, and semen—matched Juan.
There were also phone records and data from an electronic leg monitor Juan was wearing (a condition of bail for an earlier charge of stealing a car stereo) corroborating his parents' claim that he had been home the night of the murder, talking to his mother in Puerto Rico.
Yet, despite Juan's alibi and the lack of either eyewitness testimony or physical proof, the prosecution got the conviction it sought because of evidence so damning that it made everything else in the trial seem superfluous: a signed three-page confession.

As Holly's sister later put it, “Why would you confess? If I'm getting charged with murder, I am not going to fess to something I did not do and then explain the whole night and how I did it and why I did it and everything like that if I didn't do it.” Innocent people just don't confess.
Indeed, the esteemed father of evidence law, John Henry Wigmore, once declared that false confessions were “scarcely conceivable.”
The potency of this assumption overpowers doubt, even when there is exonerating evidence or indications of police coercion.

We expect people to be consistent; we assume that someone who has signed a confession believes what it says.
In a famous study documenting this phenomenon, researchers asked people to evaluate essays written about Fidel Castro.
Despite being told that the authors of the essays had been assigned their respective positions, for or against, participants disproportionately believed that the writers of the pro-Castro essays actually held pro-Castro views. They placed too much faith in outward conduct as a window on inner belief and underestimated the power of the situation to shape behavior. The expectation was that—assignment or no assignment—a person's views on Castro would remain constant:
semper fidelis
.

Another reason we find it hard to accept that some confessions are false is that we assume that our system has eliminated the cruel tactics that once led people to admit to crimes they didn't
commit. There is a long history of harsh coercion directed at suspects.
As Supreme Court Justice Hugo Black wrote in 1940, “The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning…left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose.”
Indeed, before the 1930s, it was common to get suspects to confess by subjecting them to what was known as the “third degree”—including significant physical pain.
But that has been abandoned in the back room of history.

Juan Rivera, though, did falsely confess—and he is not alone.
False confessions and incriminating statements are the leading contributors to wrongful homicide convictions, present in over 60 percent of the known DNA murder-exoneration cases in the United States.
More broadly, they appear to have been a factor in about 25 percent of all post-conviction exonerations.

These cases tend to confound our expectations: physical coercion is rare, the confessions are often rich in detail, and multiple innocent suspects may confess to acting together.
Indeed, in one of the most famous examples—the so-called Central Park Jogger case—five teenagers all admitted to participating in the brutal rape of a woman only to be exonerated by later DNA analysis.
While some who falsely confess do come to believe that they committed the crime, most are completely aware that they are innocent. And researchers are beginning to understand how this baffling behavior can come about.

Front and center is the common approach to questioning suspects.
The generally accepted gold standard, the Reid Technique of Interviewing and Interrogation, which has been used to train more than half of the police officers in the United States, not only fails to guard against false confessions but actually appears to encourage them.

Using the Reid approach, when someone like Juan is brought in for questioning, detectives determine whether he is telling the truth through a nonconfrontational interview, and then, if
he appears to be lying and his guilt is “reasonably certain,” they proceed to an aggressive interrogation designed to extract a confession. Unfortunately, as we will explore in detail later, police officers are no better than the rest of us at detecting deceit.
And far from correcting officers' erroneous intuitions about lying, the Reid technique relies heavily on unreliable gut instincts and dubious cues to deception.

This means that a significant number of the people who end up being subjected to the harsh interrogation phase of questioning under the Reid approach are actually innocent.
Indeed, it is innocent people who are more likely to waive their rights to remain silent and to have a lawyer present in the first place.
They tend to assume—as we all do—that what they themselves know to be true will also be readily evident to outsiders.
Since they didn't commit the crime in question, there is little risk of talking to the police in an open way; if anything, clamming up or requesting an attorney would imply guilt.
But, in reality, once the interrogation phase is under way, innocence is off the table: investigators are advised to repeatedly accuse the suspect of having committed the crime and prevent the suspect from offering denials or alternative explanations. All efforts are directed toward gaining the coveted confession.
To this end, the Reid manual heartily embraces lying about the evidence in the government's possession. If you want to get a hardened criminal to admit to a crime, you can't just play nice.

As a result, the environment is one of maximum psychological coercion: the suspect is completely isolated in a windowless room and may be harangued and berated for hours on end.
Many who falsely confess later say that they admitted to committing the crime simply to escape the abuse.
And experimental evidence suggests that people often downplay the potential long-term consequences of confessing to illegal activities when an admission appears to provide relief from short-term discomfort.
When we have an opportunity to end the stress, fatigue, and fear we are feeling in the moment, we find it hard to appreciate the ruinous
repercussions that may result from admitting to something that we did not do.

Police interrogations take full advantage of our cognitive myopia.
According to the nine steps of the Reid technique, the investigator is meant to hammer on the suspect's unquestionable guilt and emphasize the futility of denials in light of the damning evidence, while at the same time offering sympathy and potential justifications that encourage the person to see confessing as more acceptable.
The officer might suggest that the crime wasn't a big deal (“You know, the victim kind of had it coming, if you ask me; I'd probably have done the same thing as you in that situation”) or offer a potential narrative that lessens the moral role of the offender (“You weren't planning to kill him, I bet, you just needed some money, and it was only when he suddenly started to attack you that the gun went off”).

Empirical evidence suggests that both of these approaches—commonly referred to as minimization and maximization—can contribute to false confessions.
And the effects are not small: in one study, when minimization was used with students accused of cheating (“I'm sure you didn't realize what a big deal it was”), the rate of false confessions tripled.
When the interrogator added a subtle suggestion of leniency in exchange for confessing (“Things could probably be settled pretty quickly [with a signed confession]”), the rate increased sevenfold.

Despite these serious concerns, judges have been reluctant to reform interrogation practices.
While the Supreme Court has formally prohibited confessions obtained through violence or threats, as well as those gained through direct or implied promises, lower courts have regularly turned a blind eye to many coercive practices.
Further, the justices have explicitly sanctioned interrogator tricks, like pretending to possess fingerprint evidence and lying to a suspect about the results of a polygraph test, which encourage innocent people to confess to crimes that they did not commit.

In one of the most tragic cases, seventeen-year-old Martin
Tankleff awoke one morning to find his mother stabbed to death and his father badly cut and clinging to life.
Investigators suspected that Martin was the perpetrator, and so, during questioning, one of them pretended—within earshot of Martin—to talk on the phone with an officer at the hospital where Martin's dad had been taken.
After the fake conversation, he told Martin that his father had come out of his coma and said “Marty” had done it.
The father, in fact, never came to and died shortly thereafter, but Martin admitted to the killing and served seventeen years in prison before he was exonerated.

What's worse is that Martin's false confession was predictable.
His case involved two of the basic elements we know lead to disaster: a suspect particularly susceptible to coercion and a grueling interrogation.
A disproportionate number of verified false confessions have come after unusually lengthy interrogations—lasting twelve hours, on average—with suspects who were under eighteen or suffering from mental illness or disability.