Unfair (13 page)

This research suggests that we ought to install moral reminders for lawyers that help interrupt the process of rationalization and self-justification that occurs in moments of temptation.
One idea might be to have prosecutors recite an oath—or write down what they believe their particular moral or ethical responsibilities to be—prior to the proceedings each day of trial.
Likewise, to encourage attorneys to turn over exculpatory evidence to the defense team, we could ask prosecutors not only to sign a statement promising that they had complied with their
Brady
duties, but also to articulate in a few sentences why refusing to turn over such material is immoral. As scientists have discovered, the key is making the reminders a regular part of the process without having them become so routine that they're invisible.

It's a simple formula: to get prosecutors to follow the virtuous path, we must point them where we want them to go, set up signposts, and regularly check their progress. We can't sit back and wait, counting on others to right the course. After prosecutors have already broken the rules, it's too late.

Look again at the miracles needed to save Thompson's life: the two Philadelphia lawyers who took over his case free of charge after he'd sent hundreds of letters to others with no response; the law firm willing to pay for one last-ditch effort after all the
appeals had run out; the investigator who—at the last possible moment—found the carjacking blood test on a piece of dusty microfiche. It reads like fiction. We've got to face reality: there are no guardian angels for most of the Thompsons of this world. With limited resources and heavy caseloads, few defense attorneys are up to the role, and there is rarely money for special investigations. It is an open question whether jurors or judges might act the part, demanding more from prosecutors and seeing through to the true facts—topics to be considered in the chapters to come. But it seems foolish to test our luck, when we can intervene before innocent men like Thompson are ever brought into the courtroom.

Given the great human longing for power—our dry-throated thirst for control, our teeth-baring fury to protect even the feeblest charge over the most limited domain—I have always been baffled by the effort people devote to getting out of jury service. For many of those summoned to the courthouse, it is not an exaggeration to say that being impaneled is the greatest authority they will wield in their entire lives. Not only do jurors get to decide guilt or innocence, to command the resources of the state to change the direction of a person's life, but they also enjoy the seemingly supernatural ability to determine history after it has already occurred. Serving on a jury means getting to decide what happened. Jurors are the authors of the facts. And you, who just last night got in a heated argument with your wife over who got to manage the volume on the television remote, gave it all up by
lying to a judge
, no less, about your “very serious” back pain.

People are strange, which raises the broader question of why we trust laymen, who possess no special qualifications or legal training, with such immense responsibility in the first place.

In fact, for centuries, many in the legal elite—judges and scholars—have not. There is a long tradition of doubting the capacity of a jury to accurately determine the facts of a case, and as a
result a lot of effort has gone into fashioning various mechanisms to constrain the jury's power. Today, the debate over jury authority has been raised anew in the context of emerging technology. When we have a videotape of the critical events, do we really need a jury to tell us what happened?

An unusual recent case brought this question to the fore.

Deputy Clinton Reynolds was sitting in his cruiser along Highway 34, southwest of Atlanta. It was a damp Thursday evening in late March. The cars would catch a glimpse of him and ease onto the brakes. He kept an eye on the radar gun.
A Cadillac came up doing 73 in a 55, so he flicked on his blue lights. He was going to let it go—everyone speeds.
He wasn't even going to pull out.

But the Cadillac didn't slow as it passed. In fact, as soon as he turned onto the two-lane road, the driver accelerated.

Reynolds radioed in the license plate and reported that he was in pursuit.
He didn't request assistance, but another officer, Timothy Scott, was listening in and soon joined the chase.
When the Cadillac turned into a shopping center parking lot, Scott sped ahead to try to block the exit.
He thought he'd boxed the driver in, but the Cadillac made a sharp turn at the last minute, lightly colliding with his cruiser before heading southbound on Highway 74.

Rejoining the chase, Scott told Reynolds to give way and pulled into the lead position: “Let me have him…my car's already tore up.”

The six-minute pursuit had covered two counties, and Scott had had enough.
He radioed in for permission to “PIT” the vehicle.
A Precision Intervention Technique maneuver involves hitting the back of the fleeing car in order to spin it to a stop.
And though it's known to be hazardous at high speeds, Scott got his answer, crackling across the radio: “Go ahead and take him out.”
The cars had reached a narrow stretch of the road, with no shoulder, but Scott saw his chance and took it.
He hit the gas and rammed the Cadillac's rear bumper.

The result was dramatic: the Cadillac swerved and then swung to the right shoulder, careened down an embankment, and flipped over.
Scott yelled into his radio, “It's a 10-50 [police code for an accident]. It's gonna be a bad 10-50. Bad.”
White smoke poured from the wreckage.
The officers ran down to the car and pulled desperately on the doors.
Scott looked through the window and could tell that the driver “did not have his seatbelt on. His head was beneath the brake pedal, his torso was across the seat, and his legs were bent over the back of the seat.”

One of the officers said what they all were thinking: “He ain't gonna make it.”

Victor Harris, nineteen, the youngest of nine children, beat the odds and survived.
But the cost of the accident was severe: in the hospital, Victor learned that he was paralyzed from the neck down.

Taking stock of the events that led to his injury, Victor decided to sue Officer Scott under the Fourth Amendment of the Constitution, which prohibits unreasonable seizures.
Victor's argument was that just as the Constitution forbids a police officer from shooting a shoplifter in the back as he runs away, it also bars an officer from using a potentially lethal bumping technique to cause an individual's vehicle to spin out when the initial offense was simply driving a few miles over the speed limit.

The government, for its part, contested the notion that Officer Scott's actions were unreasonable, which raised some important factual questions.
Perhaps chief among them were just how serious a risk the chase posed and who was to blame—Victor or the police—for the hazards that it created.

Had the accident taken place ten or twenty years earlier, those weighing Victor's claim and determining what happened would have had to piece together a narrative from the testimony provided by the parties, various witnesses, and experts.
But in 2001, Coweta County, Georgia, was running dashboard cameras in its squad cars.
To determine whether Victor created a significantly dangerous situation in fleeing from the police that justified Scott's
PIT maneuver, the chase did not have to be re-created; it could simply be watched.

The case eventually made its way to the Supreme Court. And it was clear from the oral argument that the justices were skeptical of Victor's position. They had all seen the video, and it had left a powerful impression.
As Justice Scalia explained, Victor “created the scariest chase I ever saw since
The French Connection
.”

The issue, though, was what a jury would think. Was it possible that a reasonable juror might watch the video and disagree with Justice Scalia? If so, the justices would have to send the case back for a full trial; if not, then Victor's attempt to gain relief was over.

The Supreme Court majority found this an easy question to answer because the videotape provided such a clear picture of what actually happened.
According to the Court, after watching the tape, no reasonable juror could possibly believe that the chase was anything but extremely dangerous and no reasonable juror could possibly imagine that the police were at fault for Victor's paralysis.
As Justice Scalia wrote in the opinion, Victor's “version of events” was “utterly discredited” by the videotape.
The Court was so sure of itself that it took the unprecedented step of posting a link to the video online and inviting members of the public to watch.

There is a difference, however, between being sure and being right.

Each of us believes that we see the world exactly as it is and that other reasonable people will see things similarly—that is, correctly. This is true whether we are watching a referee throw a flag at a football game, discussing the state of the economy with a friend, or sorting through evidence with fellow jurors. Was that a late hit on the quarterback or wasn't it? There is only one right
way to view the play, and the person sitting next to us in the stands ought to see it just as we do.

We operate under the illusion that reality enters our brain through our senses unfiltered. We acknowledge the potential for bias when we hear about what happened from another person—say, when a friend describes a referee's call to us after the fact—but not when we are watching the game ourselves. That's true even if our experience is being mediated through technology.
When we watch a video, listen to a recording, or look at a photograph, we feel as if we are viewing things in an objective, neutral manner.

But then, not everyone does see things the way we do.

When we come across
those with conflicting viewpoints or beliefs, we experience a strong dissonance that we seek to resolve.
One option would be to reassess the evidence and question our own objectivity, but we rarely take that route.
Rather, we look to dismiss the other person's views by finding a character flaw that explains her contrary position. Those with conflicting viewpoints or beliefs, it stands to reason, have something wrong with them that is distorting their vision: they are biased, they are ideological, they are stupid, they are uneducated.

If you happen to believe that climate change is real and largely a result of human activity, think about how you feel when you read about a senator calling global warming a myth. Does it cause you to wonder if your belief is, in fact, correct? Or is your immediate reaction to think, “Oh, he's just in the pocket of the oil lobby,” or “What an idiot”?

If you go to the movies and your date says afterward that the film was terribly boring when you thought it was great, do you stop to question the objectivity of your perspective? Do you think, “Maybe I'm wrong” or “Both of our positions are reasonable”? Or do you start to reassess going on the date in the first place—“This guy just isn't very smart” or, more charitably, “Maybe he needs more exposure to independent cinema”?

The process of maintaining our own viewpoints by discrediting anyone who disagrees with us is largely automatic. But whether we're at a Giants game or a protest rally, most of our disagreements don't arise from the character flaws of those who see things differently.
Rather, they reflect the realities of cultural cognition: our shared backgrounds and experiences shape how we perceive seemingly objective facts. Watching an Eagles linebacker deliver a hit on the Giants quarterback, we cannot help but be influenced by our allegiance to the Giants as we determine whether the referee was right to throw a flag. It feels as though our assessment is totally neutral, but it's not.
At any given moment, our race, gender, age, profession, politics, religion, and countless other identity-defining characteristics and affiliations are coloring what we see.

In a powerful demonstration of this phenomenon, a group of law professors decided to test the Supreme Court's conclusion that “no reasonable juror” could watch the footage of the chase that left Victor Harris paralyzed and see Victor's evasion of the police as anything but extremely dangerous and the cause of the eventual crash.
Did “the videotape…speak for itself,” as Justice Scalia suggested?
The researchers asked a diverse group of 1,350 Americans to watch the video and then offer their impressions.

What they found were clear rifts in perception along ideological, cultural, and other lines concerning the key issues in the case: Was the chase worth the risk? Did Victor pose a lethal danger to the police and public? Were the police justified in terminating the chase by using deadly force? Who was more at fault—the police or Victor?

Each participant in the study watched the same footage, but they did not see the same thing.
A less affluent, liberal, highly educated African American woman with egalitarian and communitarian views was far more likely than a wealthy, conservative white man supportive of existing social hierarchies and individualism to see Officer Scott and the police as the primary culprits.

It was not that some viewers lied about what they had seen,
failed to pay attention, or did not understand the questions they were being asked. It was that their identities and affiliations acted as tinted glasses, filtering out certain details and bringing others into sharp focus. Contrary to the Supreme Court's conclusion, there was not just one “reasonable” view of the facts. There were many. The retired white businessman from Scottsdale, Arizona, literally saw something different in the flashing lights and spinning tires from what the black college student from Philadelphia saw.

The participants, though, didn't feel that their identities were shaping their take on events.
And the fact that the true source of our disagreement remains hidden from us can result in very serious problems.
As the research team pointed out, it was this blindness that led the Supreme Court to reach the wrong conclusion—preventing a jury from considering the case on the grounds that there was only one legitimate way to understand what happened—and, in the process, to stigmatize all those who viewed the facts differently from Justice Scalia's majority.
According to the Supreme Court, such people were “unreasonable” and were rightly barred from participating in the judicial process.

Of course, the faith we have in our own perceptions and our cynical discrediting of those with whom we disagree can create trouble even when a jury does get to consider the case.
As jurors, we are often oblivious to how our own preexisting commitments, beliefs, and biases shape our impressions, but we quickly and easily spot them influencing others.

In the play (and 1957 film)
12 Angry Men
, it is Juror #10 who most clearly lacks objectivity: he wears his prejudice against the Hispanic defendant on his sleeve, ranting about how Hispanics are “dangerous” and “wild”; how they're “real big drinkers” and inborn liars. “
Most of 'em,” he explains, “it's like they have no feelings! They can do anything!”
And, yet, after saying many explicitly racist things about the defendant, it is Juror #10 who most clearly expresses his sense that others who don't see things as he does are the ones who are biased or naïve: “I don't understand you
people! I mean all these picky little points you keep bringing up. They don't mean nothing. You saw this kid just like I did. You're not gonna tell me you believe that phony story about losing the knife, and that business about being at the movies.”

Juror #10 is no anomaly: when there is disagreement within the jury over the facts of the case, it can be very difficult for jurors not to blame the imagined character flaws of the people with whom they disagree. Judges frequently receive notes about certain members of the jury being “difficult” or “unreasonable,” and gridlock is not uncommon. In such circumstances, judges often urge jurors to continue their work, and when consensus is finally reached, it is held up as a triumph of group decision-making—the outliers were made to see sense. Yet there is reason to be skeptical. In
12 Angry Men
, Juror # 8 (played memorably by Henry Fonda in the movie version) starts out as the lone dissenting voice and ultimately convinces the other eleven jurors to change their votes and acquit the defendant. In real life, though, it is often the Henry Fondas of the world who give in. They may not see the facts the way the rest of the jurors do, but they are eventually browbeaten into acquiescing to the majority view. Even when their divergent views are entirely legitimate, they may come to believe the other jurors' claims that they are being unreasonable.
Recent research suggests as much: the best way to predict a jury's ultimate verdict is to look at what the majority of jurors favor before deliberating, because that aligns with the outcome 90 percent of the time.