Posted on
December 12, 2008 in
From today’s Houston Chronicle:
DNA evidence — collected in 2002, but unexamined until now — has cleared [RR,] a Houston man serving a 40-year prison sentence for the sexual assault of a child.
The complainant (the Chronicle calls him “the victim”, but in this case that term is ambiguous) who identified RR had, when describing his assailant, not mentioned RR’s very conspicuous facial disfigurement, caused by a shotgun blast years before.
RR’s case brought to mind Murphy’s Law of Investigation:
Enough investigation will tend to support your theory.
I cribbed that from Murphy’s Law of Research (“Enough research will tend to support your theory”). The principle behind Murphy’s Laws of Research and Investigation is confirmation bias, the human tendency to seek out and recognize the data that support their preconceptions, and to avoid data that challenge those preconceptions.
Could confirmation bias have contributed to RR’s conviction? It’s often the case that a prosecutor will have made up her mind about an accused’s factual guilt before even reading the offense report; the prosecutor in RR’s case was not interviewed for the Chronicle article, but could that have happened here?
Might a prosecutor who hadn’t already decided that RR was the right guy have been more diligent in looking for evidence? Might such a prosecutor have discovered in 2002 that there was a rape kit, with DNA to try to match against RR’s?
Might RR, as a result, have spent the last six years a free man?
The prosecutor may have counted on the defense lawyer to run down all of the possible exculpatory leads. But sometimes lawyers forget that often cops and prosecutors get the wrong guy. Can you imagine a defense lawyer sharing the prosecutor’s preconception that RR was factually guilty? Could confirmation bias have lead such a defense lawyer not to go to the trouble to find out whether the DNA recovered from the complainant matched RR’s?
Which brings us to this, from Dallas criminal-defense lawyer (and ex-prosecutor) Robert Guest:
When I was a DA I had professional state witnesses (cops, intox experts) and my own team of investigators. There was also the feeling that the appellate courts worked to benefit the State and uphold convictions. Defense experts and theories were largely mocked and dismissed at my training seminars.
Only as a defense attorney did I learn why and how field sobriety testing is flawed, what the limitations of intoxilyzer machines were etc.
That’s confirmation bias at work: Robert didn’t, as a prosecutor, learn why and how field sobriety testing was flawed because his job was to prosecute people, and finding reasons to challenge his own evidence didn’t help him do that job.
We all have preconceptions and prejudices formed by our life experiences. Any of us might unknowingly suffer from confirmation bias that helps us maintain these preconceptions, even if they’re wrong. A prosecutor might rightfully assume that a person accused of a crime committed that crime because — let’s face it — the cops usually get things right, and in the small percentage of cases in which the wrong guy is arrested there’s a defense lawyer who will fight zealously to prevent an injustice.
But, no matter how jaded, a defense lawyer can’t assume that the cops got it right because — let’s face it — the cops often don’t get things right, and in those cases the defense lawyer had better not be prevented, by confirmation bias or anything else, from seeking out the evidence that might save the accused from prison or death.
It bugs me a bit when (rarely) clients ask whether I believe they are innocent. It doesn’t matter to me, and I haven’t made up my mind. Besides, I think the question is a sign of a guilty conscience; when I’m trying to defend someone I don’t need him presenting me with evidence of his guilt (confirmation bias!).
But you can see how it would benefit the accused for his lawyer not to come to the job with the preconception that the accused committed the crime of which he was accused.
(It is, incidentally, suboptimal for the criminal-defense lawyer to uncritically decide that the accused didn’t do the deed, because that might — confirmation bias again — get in the way of his red teaming the case.)
I run into it in DWI cases – the officer writes his report after the fact so he emphasizes the signs of intoxication and largely ignores signs of sobriety.
Yes! We see it as sleaziness, when it is really just human nature.
Well, there is confirmation bias but there also is sleaziness.
It is difficult to check ourselves for all our flawed cognitions.
There is never any reason for any lawyer involved in the criminal justice system to ever make a conclusion about a defendant’s guilt or innocence. It’s not necessary to perform any such lawyer’s job and can only wreak havoc. The defense lawyer who fights harder for a client because he believes that client is innocent is providing a disservice to all his other clients (some of whom the lawyer may have erroneously concluded–on the basis of little information–were not innocent). The prosecutor who judges will be infected by confirmation bias and will be unable to perform her statutory and constitutional duty to see that justice is done. She will equate “justice” to seeing the person she has personally adjudged “guilty” being convicted, shortcircuiting the prosecutor’s true professional role of being a procedural and evidentiary vessel.
The duty to see that justice is done has nothing to do with the guilt or innocent of the defendant, even less with convicting the guilty. It contemplates only the lawyer’s professional duties, procedural (is this evidence exculpatory such that it must be disclosed?) and evidentiary (is this evidence legally and factually sufficient to present to a jury at a trial).
Lawyers don’t decide guilt or innocence. They present evidence to juries (or, when requested, judges) to decide guilt or innocence. The lawyer (prosecutor or defense lawyer) who takes it upon himself to play the role of judge only needlessly complicates his job and puts the liberty of citizens at risk. This is especially pernicious when prosecutors take it upon themselves to judge whether defendants deserve to live or die in capital cases.
I don’t entirely agree with you, PJ.
A lawyer’s job is to tell the client’s story. Since there are generally several storylines that could lead to the result the client seeks, the lawyer has to pick the one that will be most effective.
A jury is an excellent detector of insincerity, so the client is better off if the lawyer is telling a story that he believes or, put differently, if the lawyer believes he is telling the truth.
If the lawyer doesn’t believe the story he’s telling, why would he hope the jury will?
Jimmy Ortiz was the DA on this case; and he is now a Defense Attorney. I am interested to hear his thoughts on this case and why the DNA was not tested.
Kudos to all those (both Defense bar and ADA) who are working on reviewing the cases and sifting through the boxes of materials.
As usual, being more than willing to flaunt my ignorance, a hypothetical: so you’ve got a guy who is accused of something where there’s an untested rape kit that may or may not clear him. He says he’s not guilty by reason of he didn’t do it, but you may have heard that from a client before where it turned out to not necessarily be accurate, and you’re not sure you believe him. But you think you’ve got a decent chance to beat the charge at trial, as things stand.
If you open Schroedinger’s rape kit, you’re pretty sure that either a: he walks, or b: it’s over, ’cause he’s going to be convicted. There is no reverse Brady obligation; you don’t have to point out to the prosecutor that there’s this untested rape kit, that you think he or she overlooked. Since you decide that this is a decision you have to run past your client, he says, hey, I didn’t do it, but I trust you to do the right thing for me.
Isn’t there at least an argument that you leave it alone, at least until the jury comes back?
ADA, I’ve talked with Jimmy Ortiz; with the passage of time he doesn’t have enough recollection about this case to answer his own questions about it. Tammy Thomas apparently tried the case with Jimmy.
Joel, that seems to fall within the category of tactical decisions that the lawyer gets to make. Leaving it alone until the jury comes back might make sense, under the current law, if you don’t believe your client’s assertions of innocence but think you can swing an acquittal anyway. If your hunch ultimately proves wrong (if he’s convicted and the DNA clears him), all (!) he has lost is a few years in the hell of Texas prison.
If I tell a client, “look, if you didn’t do it, then this DNA evidence will most likely clear you, but if you did, then this DNA evidence will most likely convict you; I don’t have to get it tested, but I will unless you object” and he objects, I think I’ve done what I can to make sure he’s telling me the truth. But this is probably a decision that should be documented with a letter to the client so that it’s clear that he’s been advised of the possible bad outcomes.