When Some Other Dude Really Done it

It turns out the five kids convicted in the famous Central Park “wilding” case are probably innocent. [THIS JUST IN: MAYBE NOT, AND IN ANY CASE INNOCENT ONLY OF RAPE. SEE UPDATE BELOW] [ See the Village Voice story or this somewhat more skeptical account from Just One Minute. The prosecutors, as usual, are resisting reopening the case. Glenn Reynolds has what seems to me the right take on this one. Just once, I’d like to see a prosecutor defeated for re-election, or defeated in running for higher office, for nailing an innocent man and then trying to make it stick after the new evidence developed.

The basic problem is that Anglo-Saxon law relies on witnesses, and witnesses aren’t really very reliable. Even when they’re subjectively telling the truth, memory isn’t a photograph, it’s the story someone tells himself about what happened. Unfortunately, jurors believe that witnesses are much more reliable than they are, or, rather, jurors believe themselves to be much more skilled than they actually are at deciding from looking and listening to a witness whether that person’s words are a correct picture of the facts. A secondary problem is that police use techniques — such as the “array” photo line-up where the subject is asked to find a match, as opposed to a “sequential” photo line-up where the subject examines each picture on its own merits — that increase the error rate. And it turns out to be easier than you’d think for a skilled interrogator to trick or bully a scared kid into confessing something he didn’t do.

But the worst problem of all — this is Glenn’s point — is that too many prosecutors try to prevent the development of exculpatory evidence post-trial and try to make the convictions stand up even when new evidence is developed. When I worked in the Justice Department in the late 70s and early 80s, the saying “The government carries its case when justice is done” was widely repeated, and, I think, believed. That point of view seems to have lost favor: one of the many casualties of the great crime wave.

My horseback guess is that something like 2% of all the people now in prison are flat-out innocent: not borderline cases where the details of conduct are in dispute, but cases of clear crime where, as most defendants assert, Some Other Dude Done It. On the one hand, 98% is a pretty respectable specificity rate. On the other, if I’m right, it means we have 30,000 of the wrong people behind bars. Every state, and the federal government, ought to have a small group of lawyers and investigators doing officially, with all the powers of the state, what the Innocence Project does unofficially. But any governor who tried to set up such a unit would risk being called (absurdly, if you think about it) “soft on crime.”

This is one of the things that makes Hinduism an attractive faith. I’d hate to consign any soul to the eternal torments of Hell, but three incarnations as a castrated hamster with the shingles seems just about right for leaving an innocent man in prison because you’re too gutless to admit a mistake.

UPDATE: Tom McGuire (the MinuteMan) pulls together all the threads of the Central Park story. So change “probably innocent” above to “quite possibly innocent of rape.” The general point stands; its application to this case now looks shaky. At worst, the five are already out of prison, having completed their terms, so this is not one of those cases where the (possibly) innocent person is rotting in prison while the prosecutor sucks his thumb.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com