Home > Journals > Michigan Law Review > MLR > Volume 112 > Issue 6 (2014)
What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison — and to the death chamber. That is why I recommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publicized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds it to the light. That is what happened in the Carlos DeLuna case, which drew no attention at the time and remained in near-total obscurity until Professor James Liebman and a team of five law students painstakingly dissected the case in their book Los Tocayos Carlos (the Carlos look-alikes). Their book was the product of an in-depth investigation of the case, from the first 911 call to the police through the execution and the evidence gathered since. They have also published the results online, including multimedia and images of key documents that they uncovered. The result is an exhaustive postmortem. Whether political theorist Hannah Arendt was right to call Adolf Eichmann a banal person caught up in a twisted Nazi culture that made evil seem normal — that is another question. But cases like DeLuna’s show how entrenched failures of our criminal justice system can make the individuals involved seem all too banal, even if some were by turns plodding, incompetent, misguided, or even malicious. In Anatomy of Injustice: A Murder Case Gone Wrong, journalist Raymond Bonner presents a vivid account of tunnel vision gone wrong, but a case in which the system did eventually — if only partially — right itself. Bonner unravels the case against Edward Lee Elmore, a mentally retarded black man who was sentenced to death in South Carolina in 1982 (the year before DeLuna’s trial in Texas). Once again, the outcome was not due to one “bad guy” but rather to a criminal justice system with practices and procedures that, predictably, create errors that are very difficult to correct. While the Liebman team drills deeply into one case, Professor Dan Simon’s book, In Doubt: The Psychology of the Criminal Justice Process, takes a panoramic, empirical view of the larger problem (Simon, p. 1). Simon digested decades of social science research into a readable and concise book. And an important lesson emerges once the banality of wrongful convictions is cast in the mold of cognitive research: Individual actors may not act as “evil” villains trying to frame an innocent person. They may tend to assume that a suspect is guilty (Simon, p. 24). Well-intentioned criminal justice actors, however, can be precisely the ones to fall prey to a guilt-bias and make errors, particularly when working in groups in law enforcement agencies (Simon, pp. 28–29). Ordinary tendencies to confirm prior theories, susceptibility to tunnel vision, and other everyday cognitive biases may blind criminal justice actors to alternative theories and entrench their views, even when they are wrong. The fault for any one wrongful conviction does not simply lie with a few bad actors — even malicious actors depend on the cooperation and support of many others — but with an entire system that we must all take responsibility for improving.
Brandon L. Garrett,
The Banality of Wrongful Executions,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol112/iss6/7