Peter Neufeld Interview: Conversations with History; Institute of International Studies, UC Berkeley
|Photo by Jane Scherr|
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What are some of the other reasons that lead the criminal justice system not to undertake reforms and adapt to the changes that are, obviously, necessary? One gets a sense here that there's an element of bureaucratic politics in the judicial system that people don't want to move, because of losing face, because they had actually gotten the original conviction, and so on.
In about 50 percent of the cases where we've exonerated people, prosecutors were unwilling to agree to have post-conviction DNA testing, and we had to go to court to litigate that issue and finally get a judge to compel it. Sometimes even those orders would be appealed to the highest court of the state before we would get the relief, which could be three, four or five years later. Part of it has to do with something that's referred to as the "doctrine of finality" which says simply that the jury has spoken and you've exhausted your appeals, that's it. As one justice has commented, "If that means that an innocent person remain in prison, who, indeed, may even lose his life, then so be it. That's a small price to pay."
The other thing is that we've noticed with some prosecutors and polices is an unwillingness to look at that case anew, because once you lift up that stone and you see that an innocent person was convicted, and you see all the pus and bile just sitting beneath that rock that was responsible for this miscarriage of justice, then all kinds of heads will begin rolling. Because it's not enough to look at one case. We had a case here, for instance, in California involving one Herman Atkins, who spent ten years in prison. It was, of course, racial identification -- a black man convicted of raping a white woman -- two eye-witnesses said he did it, and the DNA proved conclusively that he didn't do it. There was also some scientific fraud involved by somebody from a local government laboratory. Now, if this was a doctor in our hospital where I sit on the board who did this, we would go back and have an audit, and we would look at all the other operations conducted by that surgeon in a relevant time frame. But in criminal justice, they don't do that. They just said, "Okay, we're going to let this guy out." It's a three-word opinion by a judge saying, "On the motion of the defense to vacate the conviction, dismiss the charges and the consent of the prosecution, the conviction is hereby vacated and dismissal is hereby ordered." End of case.
There's no discussion by the judge or by the prosecutor, by the defense attorney, that "we went wrong." Or, indeed, whether what went wrong here could have gone wrong in many other cases. There may be hundreds of other people sitting in prison because of this person's either negligence or malfeasance. They don't do that in criminal justice, and they're scared. They're scared that it may point to them. They don't like to be seen as someone who played a role in the incarceration of a truly innocent person. They also don't like it because it means that they let down the victim. They thought that they gave the victim and the victim's family closure ten years ago in a particular case. To admit that there's been a miscarriage of justice means that the real perpetrator might still be out there.
So what you're saying is that this is an institution that doesn't learn well beyond the particular case. What can one do about that? You're saying, "Look, an error was committed. This error might have been duplicated in other cases; therefore, we should change such and such." You're saying that the system doesn't work that way.
In our society and in almost every other institution where life and liberty is at stake, are they willing to do those kind of postmortem audits and self-critical analyses? They should do more of it, but we certainly see more of that in the medical profession. If a plane falls from the sky or a train is derailed, the National Transportation Safety Board will do that kind of investigation. In criminal justice, historically, we've never done that. So we're recommending, for instance, that they establish "innocence commissions" which will do just that. We have that kind of institution in Canada right now in certain cases. We have a Review Commission in Great Britain that does that, and they've had a great deal of success. Their task is to go back and find out, one, what went wrong? What caused this? Two, what reforms can we introduce that will prevent it from happening in the future? And three, should we, in the most immediate sense, take any administrative action against individuals?
We haven't done anything like that in this country, with one exception. And the one notable exception was when Governor Ryan declared a moratorium on the death penalty in Illinois a year ago. He set up a commission to go back and look at the dozen people who had been on death row and then been exonerated because they've been proven innocent; to find out what caused those convictions and those sentences of death in those cases. Because, he said, "Until I find out what the causes were in those cases, and whether I can correct them, then I can't possibly allow the capital punishment apparatus to function in my state, knowing that it's much too easy for an innocent person to be executed."
How do you explain the anomaly of his thinking along those lines? Is he just a unique individual? Do you have any sense of that?
Well, they reached a critical mass there. They had, eventually, twelve executions and thirteen exonerations. Those aren't good numbers, you know, if you're talking about the efficacy of the system.
But what was so extraordinary is that we then went to places like Texas and we said "You really have to consider this moratorium issue," and they said, "Oh, no, no, nonsense. This is, simply, an Illinois problem. We know how to get it right in Texas." And the same thing happened in Virginia, which has the second highest number of executions. "Oh, no, no, we get it right in Virginia."
The truth of the matter is that at least in the state of Illinois, there was a vibrant public defender system. The problem in Texas is that the system of accountability was so poor that it became more difficult to uncover the mistakes that were made. In Virginia, they had the lowest reversal rate of any capital state in the country, but the reason is that they have these horribly oppressive rules, like the "twenty-one day rule," which says that twenty-one days after a conviction, you can't go back into court, even if you have overwhelming new evidence of innocence. You have these rules which make it very difficult for the truth to come to the surface. So what we need to do is to reform those rules to make it easier for the truth to surface.
I'm taken by what you're saying about the criminal justice system in the United States in comparison to other places like England and Canada. Do you have an explanation of why we seem to be more incapable of rationalizing criminal justice? Does if perform a different function in our society than it does in theirs?
I don't think it's that. There are some aspects of our criminal justice system which are far superior to both Canada's and Great Britain's. But there are some areas where we fail. We, as a people, have a very short memory. Much less so than Europeans. Certainly, Europeans are still much more plagued by their past than we are. We just want to move on, you know, with our lives. It's a wacko kind of approach when you're trying to deal with a systemic problem, because only by looking backward can you prevent the errors in the future. But that's how it's been. Hopefully, it will change here. The experience in Great Britain has been remarkable, because with their commission that reviews old criminal convictions, they've referred more than sixty cases out now where people were ultimately exonerated.
In Canada, there was a great commission in Ontario that led to all kinds of important changes. And there's a commission functioning right now in Manitoba -- I'm going up to testify there next month -- and it's being run by a retired Canadian Supreme Court Justice. So they're taking these things very, very seriously. We haven't done it yet in the United States, but I'm hopeful that we will.
What does this critique of the criminal justice system tell us about ourselves and the country?
Boy, it tells us a lot of things. It tells us that defense attorneys are too quick to assume their clients are guilty; that police and prosecutors have tunnel vision. When they're conducting an investigation, they get focused on a particular suspect, and any other data which would filter in to say it's not this person, they wear blinders and it's kept out. Once you become convinced that a particular person is guilty, you refuse to consider the alternative hypothesis. Very big problem, that a lot of the systems we've used to identify perpetrators in the past, are just junk -- junk science. We used to rely a lot on hair microscopy, where hair was found at a crime scene. And it would be, then, compared to hairs from the suspect. We used to rely on that. These DNA exonerations show that that's nothing but junk science. The same is true for disciplines like handwriting comparisons, fiber analysis. A lot that we relied on is wrong. So DNA is really opening up all kinds of new challenges to the status quo.
An eyewitness -- let's talk about that a little. That is also a kind of systemic problem that we haven't recognized enough, because science has made us aware that people don't actually see what they think they see or what they report they saw after the fact.
People have been doing studies in the classroom for years on the vagaries of eyewitness identification. The problem is they were simply studies. They would be simulations, they would be experiments. There's always somebody from the opposing camp who can pooh-pooh the studies. But when we have eighty-six DNA exonerations and we find out that in 82 percent of those cases, the witnesses who made the identification in court were simply mistaken, you can't pooh-pooh it anymore. So we have a wedge from these innocence cases that we didn't have before. We have a willingness on the part of certain law enforcement agencies, for the first time, to try and implement reforms to make it less likely that mistaken eyewitness identifications will occur in the future. We have a willingness on the part of the judiciary to allow those social science experts to testify in courts where there is no DNA, where you have to rely exclusively on the testimony of an eyewitness; in courtrooms, where ten years ago, five years ago they wouldn't allow those experts to testify. So DNA evidence has really shaken the foundations of eyewitness identification.
Tell me what are the politics fixing the system? Why does it tend to be so hard? Or is it hard?
Very, very hard. God, I mean ... let me give you an example of eyewitness identification. One of the things that have been demonstrated by the social science experiments is that if you show a victim or a witness an array of photographs, you know, the so-called photo spread -- six photographs -- and they look at those photographs and the real perpetrator's there, well, there's no problem. The chances are, if they got a good look, they'll pick out the real perpetrator. But if the real perpetrator is not there ...
In the pictures?
In the group of pictures. What really is happening, psychologically, in the mind of the witness is that they're being asked to look at these six photographs and decide, "Who, amongst the six, looks most like the person who did this to you?" They're making a relative judgment. The studies indicate that if instead of showing them that array of photographs -- and by the way, the majority of all identifications are these photo spreads, they're not the famous lineups with the numbers in front and the lines behind you for height, it's not that at all. They're these photo spreads. But, if instead of doing that, you do what is called sequential photo identifications, where you show the witness one photograph at a time, and simply say, "If you see the person, then tell me and I'll stop," that you reduce the likelihood of mistaken I.D. -- of picking the wrong person or false positive -- but you don't reduce the true positives at all.
We've had such difficulty convincing police departments to do this because they're so worried. They're so worried that they might lose one particular case because a real guilty person might not be apprehended. So we could never convince them to make these changes. And people have tried for more than a decade. But now, finally, because of these DNA exonerations, there's some movement. The State of New Jersey is about to endorse many of these reforms.
You know, 21 percent of these miscarriages of justice resulted, in part, from false confessions. It's a simple reform: Why not simply tape-record all interrogations? They do it in Great Britain. They do it in Australia. They do it in this country, in Minnesota and Alaska. Why not do it? Well, the police officers are very resistant to it. They just don't want to have their hands tied. But what happened is in Minnesota, there was tremendous resistance to it initially. But guess what? After it's been in existence a few years, now the cops love it. And the reason the cops love it is if a defendant wants to say, "I never said that," all the cop has to do is flick the button and play the tape recorder. It becomes an objective witness. On the other hand, if there was something coercive during that interrogation, then a neutral, objective ear will pick up on it and will be able to effectively undermine the validity of that confession. We now know that false confessions happen with far too alarming frequency, but before these innocence exonerations, there was too much resistance to make the necessary changes.
So in a way you're saying that the criminal justice system is made up on components and there's a system of resistance to change in each of them, but an ability to move beyond that under certain circumstances.
You've got to get people where their self-interest is, or they're not going to be motivated. So we've put forward the following argument, which really is very simple and it's very sensible. In twelve of these eighty-six exonerations, after the DNA excluded the person who had been in prison wrongly for ten or fifteen years, we were then able to take the DNA profile of the evidence and run it through a convicted/offended databank or some other apparatus, and identify the real perpetrator. And then you tell law enforcement and the public that every time you convict the wrong man, the real bad guy is still out there committing more crimes. So increasing the efficacy of law enforcement and prosecution, we not only reduce the likelihood of miscarriages of justice, but we'll enhance the efficiency and certainty of the system, and reduce crime consequently. So that argument is in their self-interest, and it's been much more effective in getting a positive response from some people in law enforcement.
I'd like for you, as somebody with a sense of politics, given the background you described, to assess for me the levers of change. I mean, obviously, in a particular case you can get a judge overruling the conviction. But what I'm curious about in terms of broader reform [than simply] convincing the jury and having a dramatic case, is the key to public education to getting these reforms. Or is the key the political process itself, that legislatures have to act on the kind of reforms you want?
There's no single mechanism. They all play out together. We will publicize, certainly, the actual case in the press to try and move people's opinions around that case. We have written model legislation. For instance, it's been very difficult to get access to DNA testing, so we've introduced legislation. The first law was in New York State -- our home state -- that we helped write. There have been a dozen bills passed around the country in the last twelve months. And there are another twenty pending right now to try and get access. So legislation plays a big deal.
We're trying to do pilot projects to experiment with new ways of approaching eyewitness testimony requiring taping of interrogations to prevent prosecutorial misconduct, to implement minimum standards for all defense attorneys, and audits of defense attorney agencies to make sure they're complying with those standards.
If you had to look at it broadly, what we're trying to do is to bring science into the criminal justice system. And it's something that's very, very difficult, and something that criminal justice are very resistant to. I think it will go kicking and screaming into the next century adopting a lot of those models and methodologies.
There's legislation, there's education, there's the trial itself. None of these things work alone. They all work together.
How do you explain this resistance of the system to the introduction of science? At some levels, it's unexpected and surprising, isn't it?
Well, the criminal justice system is made up of people like myself ...
Who did what?
... who didn't understand the chemistry, and so that's why they moved into the system.
So that's where the antipathy comes from, or the resistance. It's very, very fundamental. But it's also very difficult for any one us to be self-critical and admit that we've made serious errors, and wish to move forward prospectively. What we're trying to do with innocence commissions and this whole burgeoning civil rights movement around justice is to say we're not really interested in finger-pointing. If a particular criminal has lied on the witness stand or a cop committed perjury, there should be some sanction. But what we're much more concerned with is trying to change the way business is conducted, so it won't continue to happen with alarming frequency in the future. You know, it just boggles the mind. We'll have a case where we'll prove someone is innocent with DNA testing, which will then prove, for instance, that the confession was, indeed, coerced. In any other society or in any other discipline, you would then go back and look at the other cases that the same detective was involved in to see whether he conducted himself similarly, coerced other confessions. You can't believe how difficult, if not impossible, it is to get the law enforcement apparatus to go back and do those kinds of audits. They just won't do it.
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