Unfair (15 page)

In light of this, we could prevent all men from sitting on this
particular jury, or bar all the skinny guys. Or we could ask the men more detailed questions to try to further differentiate within that pool. But if we care about fair treatment, doing nothing seems negligent.

It is hard, though, to know where to stop. There are many other variables that may bias certain jurors and not others, including—in this fraud case—the age, race, and socioeconomic status of the defendant. If we have limited resources, which ones should we pay attention to and which should we ignore?

Emerging technology may allow us to gain an increasingly nuanced understanding of how cultural cognition operates in the jury box.
Implicit association tests are already able to capture the strength of the stereotypes and general attitudes individuals have about different groups, including racial minorities, poor people, and the obese.
The basic idea behind the tests is that people will be quicker to group things that they already associate with each other (such as a picture of a thin person and the word
good
) than things that they don't expect to go together (such as a picture of an obese person and the word
good
).
When an image or word appears on the computer screen, you hit the “e” key if it belongs in the category on the left of the screen (thin faces/positive words) and “i” if it belongs on the right (obese faces/negative words).
Then the categories are changed around (thin/negative and obese/positive).
Measuring the speed of responses in milliseconds allows scientists to tap into automatic—and often unconscious—biases, which may be particularly useful in getting at jurors' hidden partialities. When it comes to obesity, for example, people show strong implicit
and
explicit weight bias, since it is culturally acceptable to express negative feelings about obese people, but a different pattern emerges for biases against blacks and the poor.
In these cases, many people show strong implicit biases, but relatively few are aware of their proclivities or willing to admit to them.

To date, the researchers who have developed these tests have warned, on ethical grounds, against using them for anything
other than educating jurors. But, as we will discuss later, sophisticated, individualized juror assessment is already offered by trial consultants and sanctioned by our legal system.
The time may come when scientific screening is a standard part of
voir dire
.
And breakthroughs in neuroscience may even make it possible to detect certain proclivities in individual jurors based on neural activity. The initial work has already begun.
In a recent fMRI study, scientists found that the amount of money that mock jurors awarded to a black victim could be predicted by their brain activity as they looked at black and white faces.
Rather than filling out a questionnaire, an arriving juror might someday be presented with pictures or descriptions of various people, situations, or events and then be dismissed (or perhaps “balanced out”) if his brain responses exhibit patterns associated with biases relevant to the case at hand. Whether this seems like a dangerous form of government intrusion or a huge leap forward probably depends on your feelings about the current system.

The challenge will always be to determine whether a measure of implicit bias or particular brain activity is a reliable enough predictor of behavior to be grounds for intervention. How sure do we have to be that a juror is more likely to side with the police regardless of the facts of the individual case?

But that's really not a new question. It arises in nearly every trial—implicitly or explicitly. What we have to decide is whether we want to answer it with the aid of science or without. The car is on; the wheels are turning; we are driving forward no matter what. We can look at the best map available—imperfect though it may be—or we can navigate by instinct. The choice is ours.

“
Do you see a person in the courtroom here today that was the person who came in your apartment that night?”

The victim looked around the room.

“
Yes, sir.”

The Meriwether County prosecutor chose his words carefully.
This was a pivotal moment in the trial: an opportunity to tip the case. If he played it for maximum theatrical effect, the Georgia jury would be his.

The woman on the stand waited and they watched—this elderly woman, who had been hurt so badly that a rape kit could not be used; whose face, partially paralyzed, still carried the frozen terror of the crime.

“
If you would, please, ma'am, come out of the witness stand, and if you would just go point out that person.”

She stepped down, just as he asked, and, in full view of the entire court, raised her hand.

“
That's him.”

John Jerome White was convicted and sentenced to life in prison.

At trial, White had been adamant that he was not the man who had broken into the woman's house in the early morning
hours of August 11, 1979, beaten her, and sexually assaulted her.
He was not the one who had then rifled through her purse for seventy dollars in cash, yanked the telephone cord out of the socket, and walked out the back door. “
I know I didn't rape that lady,” he insisted.

Had the case turned only on the physical evidence, White might have convinced the jury to let him off.
The prosecution didn't have much—a criminalist at the Columbus Branch of the State Crime Laboratory had testified that there was “sufficient similarity” between hairs collected on bedding from the crime scene and hairs belonging to White “to conclude that they could have had the same origin.”
But under cross-examination, the analyst was forced to admit that his level of certainty was quite low: the hair collected in the victim's house “could have” come from White, by which he meant nothing more than “it's more likely it did than didn't.”

The prosecutor, however, had a trump card in his deck.

The victim had identified White as her attacker, not once but three separate times. As any D.A. will tell you, producing a positive ID by the victim is one of the most effective ways to lock a man up.
In the words of Supreme Court Justice William J. Brennan Jr., “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That's the one!' ”

But John Jerome White was not the one.
DNA tests conducted in 2007 on those same crime-scene hairs excluded him as the perpetrator.

By the time White walked out of Macon State Prison in December of that year, the victim had long since died, but the finger she raised some twenty-eight years earlier had left a jagged scar.
Without her error, White wouldn't have spent almost half of his life in prison. It was that simple and that cruel.

Yet there was a still darker twist to this case. With White identified, the file was closed.
The authorities never looked for the real
perpetrator and had no idea how close they had been to catching him—not decades later, after he had raped another Meriwether woman, but way back in 1979.
It was then, just a few weeks after the assault, that the victim had stood at the police station in front of the five men pictured below.

White appears in the middle of the
lineup wearing ripped jean shorts and a white T-shirt.
He is rail thin, with a relaxed, almost feminine pose—legs together, elbows in, hip slung to the side.
He looks directly at the camera.

The victim had no trouble picking him out—the one holding the number 3.
As she explained, she was “almost positive” that he was the perpetrator.

It was an awful mistake. But it was only half of the story. As it turned out, she made
two
fateful errors that day.
Standing before her, just two spots to the right, was her real attacker: James Edward Parham, number 5, round-faced in jeans and a striped shirt, glancing off to the side.
At the police station, she had looked upon the true perpetrator and picked out an innocent man.

Parham's inclusion in the lineup had been a mere coincidence.
The police were focused on White.
Parham just happened to be locked up for an unrelated offense at the moment the victim was brought in for the identification, and he was pulled in as a “filler.”
The police had no idea that he was actually the person they were looking for.
And it would be almost thirty years before anyone would connect the dots.

White's case is unusual, but it is not isolated.
Even among the limited number of DNA exoneration cases that have been catalogued by researchers, there are at least two other instances in which a victim was given the opportunity to identify the true assailant and selected an innocent man instead.

In one of those cases, a twenty-two-year-old college student, Jennifer Thompson, was raped at knifepoint in her apartment.
She was determined to help the police catch her attacker, and when she was presented with a photo array, and then a lineup, and then an in-court identification, she named the same man, Ronald Junior Cotton, each time.
Thompson was “completely confident,” and Cotton was given a life sentence.
But then another man in the prison wing where Cotton was locked up, Bobby Poole, began bragging that he was actually the one who had attacked Thompson.
At Cotton's retrial, Poole was brought into the courtroom: “Ms. Thompson, have you ever seen this man?”
Without hesitation she responded, “I have never seen him in my life. I have no idea who he is.”
Cotton was sentenced again to spend the rest of his life in prison.
But, just like White, he turned out to be innocent, and the guilty party—matched through DNA—was none other than Poole.
As Thompson wrote later, “I was certain, but I was wrong.”

These tragedies bring the problems with witness memory into stark relief. If a person who was face to face with her attacker for an extended period of time can fail to identify him and instead implicate another man, what about all the other cases, the vast
majority, in which a witness catches only a passing glimpse of the perpetrator, and that person does not appear in the lineup down at the police station?

While there are other ways to identify a suspect or piece together events, including surveillance footage and DNA evidence, witnesses provide the most common means of figuring out what happened.
Some witness memories, like the face of the perpetrator or the make of his car, are critical to solving a case.
Others are important for determining
how
events transpired, which can reveal a motive, establish a necessary element of a crime (for example, that the killing of the victim was premeditated), or eliminate a self-defense claim (the victim pulled out a knife only
after
the suspect pointed a gun at him). But nearly every case turns on the memory of a witness at some point, whether it's steering a police officer toward evidence, encouraging a reluctant prosecutor to press charges, convincing a juror to convict, or influencing a judge at sentencing.
To cite just one statistic, each year in America some 77,000 people are charged with crimes after being identified by eyewitnesses in police lineups.

Our dependence on witness memory would not be so troubling were it not for the clear picture that emerges from the thousands of studies on memory, experiments with mock witnesses, and real-life cases.

There is, for instance, compelling evidence that eyewitness identifications are frequently inaccurate.
When the actual perpetrator appears in a lineup along with several innocent fillers, witnesses fail to pick anyone out about a third of the time.
And of those witnesses who do choose someone, one third select a filler.
This is great news if you're guilty, because it means that your chance of being identified in a lineup is only about 50 percent.
But even more disturbing is what happens when the perpetrator does
not
appear in the lineup: in that situation, people select an innocent filler about half of the time (rather than correctly declining to select anyone).
Moreover, people who successfully pick the suspect
in a lineup turn out not to be so reliable after all: when those individuals are shown an identical lineup
without
the suspect, roughly half of them simply select someone else—an innocent person.

It is no surprise, then, that erroneous eyewitness identifications are one of the leading causes of wrongful convictions.
Of the first 250 DNA exonerations in the United States, 190 of them appear to have involved mistaken identifications.

The mystery is how such horrible injustice can arise when, in many cases, no one intended to mislead or deceive.
Victims tend to be strongly motivated to identify the people who actually committed the crimes against them.
The vast majority of other witnesses who come forward want to help solve cases. And police, prosecutors, jurors, and judges have powerful incentives to catch and convict true perpetrators.
There is nothing in John Jerome White's case, for example, to suggest that the police set him up or deliberately bent the rules; they were simply trying to bring a rapist to justice. After his exoneration, White himself was reluctant to attack the people whose actions had deprived him of freedom for so long.
It wasn't a story of some evil conspiracy, just a case in which “some people made some mistakes.”

White was right, but he also missed something important: the mistakes were neither random nor unexpected. As we'll see, they were the predictable outcome of a criminal justice system that exacerbates the limitations and frailties of human memory.

Most of us have strong intuitions about how our memories work.
One of the most widely shared notions is that they are basically like video cameras: over the years, our brains capture thousands of images and clips that we can retrieve whenever necessary.
Sure, sometimes we forget where we stored things, or the image was blurry to begin with, but when we do successfully retrieve one of those stored pictures or videos, we are viewing an authentic and accurate record of what was once before our eyes.

Not only do a large majority of us report that we have excellent memories, but we also expect other healthy human beings to perform basic memory tasks with accuracy and consistency.
As a result, we have great faith in the power of memory as a tool in the criminal justice system.

Part of that faith is quite warranted. In some ways, our memories are indeed the amazing crime-fighting tools we believe them to be.
We have an uncanny ability, for example, to remember certain faces.

But we also all know that our memories fail on a regular basis. I regularly cannot recall the names of people I have just been introduced to, crossword puzzle clues I read seconds earlier, and grocery items I assured my wife I did not need to write down.
How is it possible that I can readily remember a useless fact I came across back in college, like the year
On the Origin of Species
was first published (1859), but not the last four digits of the phone number I was just given for the dermatologist? How is it that years later in a Tube station in northeast London I easily recognize the woman who had a locker next to me my freshman year of high school, but I struggle to place the student who sat in my class just last semester when I run into him at a bar near campus?

The answer is that our memories aren't really like video cameras at all.
To begin with, our real memories are severely hampered by limits in perception and attention. We are simply incapable of processing the incredible amount of material we encounter every second of every day.
Just seeing or hearing or smelling something does not create a discrete memory that we can readily recall.

As a demonstration, I'd like you to describe a person whose image you have seen thousands of times. Indeed, chances are high that you are carrying at least one copy of his picture with you at this very moment.