To Err is Human

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Democracy's Constitution / Repairing The Systen

I really think you should take time to view the PBS documentary The Confessions. It tells the shocking story of the grave injustice done to four sailors in Norfolk, Virginia in  1997. (

A young  navy wife, Michelle Bosko, had been found raped and murdered in her apartment. Based on the “hunch” of one of her friends,  the police  started investigating a Navy enlisted man, Daniel Williams, for the crime. Williams at first denied any involvement, but after an interrogation that started late at night and ended 9 hours later, he  signed a confession to the rape and murder of Michelle Bosko. The  police had found their man and further investigation stopped, at least until months later when a DNA test  showed that Williams’ DNA  did not  match the blood found at the murder scene.

Instead of releasing Williams, the police decided that Williams must have had an accomplice. So a second sailor was arrested. He too at first denied any involvement, but after another long interrogation, he also  signed a confession, one which  implicated Williams. But then  the DNA report for the second defendant also  proved negative.  The police  response was to look for  a third and finally a fourth perp.  And, since  each new confession contradicted the earlier ones,  they too  had to be reworked to appear consistent.

All four defendants eventually were either convicted or pleaded guilty. Williams and two others were sentenced  to life without the possibility  of parole.  The fourth  was sentenced to 20 years for rape.

Why did the police continue to believe Williams was involved even when that conclusion became more and more implausible? Social science can help us with that question.   Michael Lewis’new  book The Art of Unknowing  tells  how two Israeli psychologists, Amos Tversky and Daniel Kahneman,  upended conventional wisdom by showing that the maxim “To err is human, to forgive divine” is at least half right. Their  basic  message is that human beings  tend to  decide many important issues by relying on intuition and human intuition is often wrong.

Take the initial judgment that Williams was the murderer-rapist.  It turns out that when we consider the truth of a hypothesis like “Williams did the murder” our minds tend to automatically focus on information that supports its  truth, thereby making it appear more probable  than it actually  is.  This “confirmation bias” would have led the police to convince themselves of  the truth of  Michelle Bosko’s friend’s “hunch” and led  them to elicit a confession from Williams to provide support for that conclusion.

And once they had a firm belief they had their “bad guy,”  the police were, like most experts, quite good at creating scenarios  that reconciled that  belief  with later evidence, like the negative DNA tests,  that undermined it. There must have been an accomplice– or, if necessary, three.

But it wasn’t only the police who erred; there was also the prosecutor who handled the case; he seems to have had no problem with the DNA evidence contradicting the prosecution theory. Then there was the judge who refused Daniel’s  lawyer’s motion to suppress the confession, and the appellate court that denied his appeal.  Our legal system seems to have a systemic  commitment to  resolving cases that sometimes  outweighs its fear  of convicting   innocent people.

I don’t doubt  that all the  officials involved wanted to convict a  guilty person, but  the system seems to have a greater need to convict someone.  The overworked police want to close the case and move on.  The prosecutor looks to  his or her “conviction rate.” The judge tries to clear a  crowded docket. And  the appellate  courts are too busy to carefully  review  every allegation of error, and therefore assume that serious errors have been corrected  below.

There are also  practical  reasons for turning a blind eye to questionable convictions.  Every admission of error encourages more charges of  misconduct,  leading to lawsuits and a growing  loss of public  confidence  in the  criminal  justice system.

I recognize  that what happened to Williams and his co-defendants represents an extreme example of  a system run amok, but sometimes dramatic cases highlight problems too ignored in less extreme circumstances.  If you have any doubt about whether police convinced of a defendant’s  guilt are willing  to use coercion to get a confession, just take a look at the  recent Netflix  documentary  Making of a Murderer.

Unfortunately  involuntary confessions  are not the only fallible  tool used to get convictions.  Eyewitness identifications are also often mistaken. And let’s not forget that   the plea bargains  involved in the vast majority of all convictions can easily be improperly  induced by over-charging or refusal of bail.

Our criminal process sees itself as a well-oiled machine producing  correct decisions, but the truth is that  it relies heavily on judgments, like which witness to believe, that  are based on intuitions  that Tversky and Kahneman warn us are often wrong.

It is time to rethink  our approach to crime and punishment in our world of uncertainty. There are  reforms that can  reduce errors in confessions, eye witness identifications, and the plea bargain process, and we should adopt them. But I  think we must also face a larger problem. “Guilty” really only means labelled so by a system   quite  capable of  error.  So while we should attempt to improve the process, we should also soften the consequences of a mistaken  verdict.

A good place to  start would be the death penalty.  As the the PBS documentary  makes clear,  the threat of the death penalty induces  false confessions.  More importantly,  it just  doesn’t make  sense in a world of uncertainty to impose a penalty that can never be corrected  if later proven to be  mistaken.

1 Comment

  1. Phil Meyer says

    Thanks John. Terrific piece. Look forward to watching the Frontline documentary soon.


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