Unfair (10 page)

The best explanation is that using a gun as a pointer leads people to perceive ambiguous objects as guns because perception and action-planning employ shared processes in the brain.
And that suggests that having a gun at your fingertips can make the world seem a far more threatening place, with potentially deadly consequences.

Even the surrounding landscape—the spray-painted alley, the trash in the gutter, the abandoned row houses—may influence a modern-day Whitey's actions.
Back in the early 1980s, George L. Kelling and James Q. Wilson advanced a “broken windows” theory, which asserted that potential criminals took cues from their environment: “If a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken….One unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”
For a long time, the notion that litter, rundown buildings, and
burned-out cars could encourage criminal behavior was based mostly on anecdote, but recent empirical work has begun to bolster Kelling and Wilson's ideas.

In one set of experiments, researchers in the Netherlands found that by making very minor changes to the visible disorder in a real neighborhood, they could alter people's behavior.
When there was more graffiti, significantly more people stole a five-euro note (visible inside a letter perched in the slot of a post office box).
When the experimenters illegally locked bikes in plain view, more than triple the number of people trespassed in an area clearly marked
NO THROUGHWAY
.

On a positive note, green space in cities may have the opposite effect. Crime, it turns out, does not lurk in the bushes.
Indeed, in my hometown of Philadelphia, a recent study found that areas with trees, shrubbery, and grass experienced less crime, in particular fewer robberies and assaults.

Even accepting that the backdrop can play a causal role in human dramas, it seems hard to believe that elements in our situations could ever lead a person to commit a truly atrocious act—say, killing a man. But, in fact, the most famous series of experiments in psychology came remarkably close to proving just that.
The question that sparked it all was a straightforward one: What percentage of the population would deliver a potentially lethal shock of electricity to another human being simply for getting a question wrong on a test?

Although logic suggested that only a sadistic person would flip the switch, Stanley Milgram found that 63 percent of experimental subjects delivered the full 450 volts when an experimenter instructed them to.
What was even more interesting was that Milgram could get compliance rates to vary between zero and 92.5 percent just by changing minor elements in the environment. Did the participant first see two peers refuse to obey orders?
If so, obedience plunged. Did the instruction to continue the experiment come from a scientist in a gray lab coat or a lay
administrator?
With a scientist, compliance shot up. Was the location of the experiment Yale University or a private facility in Bridgeport, Connecticut?
In the Bridgeport lab, the number of committed shockers plummeted.

We want to believe that atrocious crimes are always caused by atrocious people who are very different from us.
But that is simply not the case.
There is psychological truth behind Hannah Arendt's famous characterization of evil as “banal.”
Arendt was writing about the trial of the Nazi Adolf Eichmann for the
New Yorker
, and in observing the proceedings she was struck by how utterly ordinary Eichmann seemed.
Here was someone who had done monstrous things—overseeing the Final Solution—yet he did not appear to be a monster.
Although subsequent research has revealed that Eichmann may have been a more enthusiastic executioner than he let on, Arendt's broader message has endured.

The implications are hard to accept: we may all have the potential to harm, to be criminals. But the threat to our self-esteem is actually graver than that. Acknowledging the science means losing vital cover. If situational factors play such a powerful role in offending, we can no longer claim to be outside observers. When we decide not to regulate weapons, when we elect to leave swaths of our neighborhoods blighted or cut nutrition programs for women, infants, and children, when we provide young inner-city men with few options but to join gangs, we become implicated in the crimes that eventually result.

The major effect of knocking down the “mug shot” view of criminals, then, is to eliminate the barrier that stands between us and those we lock up. This is difficult, but it's critical to achieving a just legal system—a topic we'll return to at the end of the book. When we appreciate that a person's likelihood of committing a crime drastically increases with the wrong genes or a blow to the head, it makes it easier to feel empathy for those who have done wrong, to forgive them, and to offer help rather than hurt. And when we understand that the power of our environments can
lead us all to commit terrible acts, we suddenly have a reason to change those conditions to ensure that no one is led astray.

Without a “mug shot” notion of crime, we'd look at the photographs of Frank Masters, John Powell, Alick Evan McGregor, and William Johnston with different eyes. Real mug shots would no longer be objects of amusement and curiosity. We'd see them for what they are: reminders of the work still left to be done.

It isn't just murderers who make deathbed confessions. Sometimes prosecutors do, too.

Gerry Deegan was dying of cancer.
He had worked for the D.A. in Orleans Parish, Louisiana, since law school, battling to put bad men away.
Now his number had come up, and he wanted to tell his friend Michael Riehlmann something.
Riehlmann was a former prosecutor himself—same parish. He listened.

Nine years earlier, Deegan had done something he now regretted.

It all started with Raymond T. Liuzza Jr., the son of a well-known New Orleans businessman, bleeding to death in front of his house in the early morning of December 6, 1984.
The only witness to the shooting described the assailant to police as a six-foot-tall African American with “close cut hair.”
But that didn't narrow things down much, and the police were casting about until the Liuzza family announced a $15,000 reward for information leading to the conviction of Raymond's murderer.

The money lured Richard Perkins out of the depths: “I don't mind helping [you] catch [the perpetrator],” he told them, “but I would like [you] to help me and, you know, I'll help [you].”

According to Perkins, two men were behind the crime: Kevin
Freeman and John Thompson.
The police snagged Freeman first, then kicked in the door to Thompson's grandmother's house.
Thompson's two sons were there, and his girlfriend, his mom, his brother and sister, and his grandmother.
They watched as the police, guns drawn, took Thompson away.
He was twenty-two years old.

Freeman matched the description the witness had given: tall, with closely cropped hair that had earned him the nickname Kojak.
But it was Thompson—four inches shorter and hair in a large Afro—who would catch the charge.

His photo in the paper had attracted the eye of a father whose three children had recently been involved in a seemingly unrelated incident—an attempted carjacking.
Now, looking at the Afro in the photograph, the children thought they were staring at the carjacker once again.
And when they went down to the station, they picked out the same newspaper photo from an array of mug shots.

The D.A.'s office had their man.
What's more, Freeman had turned quick and easy and was ready to be the key witness in a murder trial against Thompson.
All they had to do was think about strategy: they had been dealt a strong hand for the death penalty, but they had to play their cards right.

The opening move was to try Thompson on the armed robbery of the kids, because a conviction would discourage Thompson from testifying in his own defense during the more critical murder trial.
If he chose to testify, the rules of evidence would allow the prosecution to introduce his robbery conviction to impeach his credibility—a potentially devastating hit.
And without Thompson's testimony, the defense would have a much harder time presenting his side of the story and reducing the impact of the testimony against him.
Just as important, a prior violent felony on Thompson's record could help secure an execution verdict in the second case.

Deegan was enlisted to assist James Williams on the armed robbery case, while Williams and Eric Dubelier handled the murder case. And Deegan and Williams knocked it out of the park: Thompson was sentenced to 49.5 years in prison without the possibility of parole on the robbery charge based on the identifications of the three victims, which set the stage for a clear win for the prosecution in the murder trial.
Thompson was going to be executed.
Harry F. Connick Sr., the district attorney for Orleans Parish (and father of the musician and actor of the same name), had a signature victory—a sign that, even in the sometimes-troubled Big Easy, justice eventually came to the wicked.

John Thompson was sent to prison and then to death row in the Louisiana State Penitentiary—the infamous Angola, Alcatraz of the South.
He was sitting there now, as Deegan and Riehlmann spoke.

So what did Deegan want to get off his chest?

He hadn't done right in the first trial.
During the carjacking, the eldest child had injured the assailant, and the man had bled onto his pants.
A crime-scene investigator had taken a swatch of the bloody fabric, and the crime lab had run a pretrial test of the swatch, which had conclusively identified the blood type of the assailant.
But Thompson's lawyer never knew about it because the report had not been handed over, and Deegan himself had checked the swatch out of the evidence room on the first day of trial and never returned it.

He had kept all of this to himself for nine years: he had suppressed blood evidence.

Back in 1963, in the case of
Brady v. Maryland
, the Supreme Court made clear that prosecutors must turn over evidence that is favorable to the defendant and material to issues of guilt or punishment.
Failing to do so—in common parlance, committing a
Brady
violation—is a contravention of the constitutional right to due process.

Riehlmann suggested that Deegan reveal what he had done—come clean. It was the right thing to do.
But when Deegan elected to keep his mouth shut, so did Riehlmann.

For five more years Thompson sat in his isolation cell, waiting for the day he would die. His execution had been scheduled six times.
Each time it was delayed for an appeal, but the appeals had run out.
His seventh and final date was May 20, 1999.

In a last-ditch effort, Thompson's lawyers hired a private investigator to look through the evidence one final time.
It was less than a month before the execution. There wasn't much hope the P.I. would turn up anything, but nonetheless she scanned through the microfiche of the crime lab archives.
And then there it was: a copy of the lab report with the carjacker's blood type.

B, it said.

Thompson had type O blood.
He was innocent.

His conviction for the armed robbery was vacated, which led to a reversal of his murder conviction.
Thompson was finally able to testify in his own defense.
At the new trial, Thompson presented evidence that the man who had been the government's key witness against him in the first trial—Kevin Freeman—was actually the murderer.
It took the jurors only thirty-five minutes to find Thompson not guilty.

After more than eighteen years in prison, Thompson walked out of Angola on May 9, 2003.

How does such an atrocity—there is no other word for it—occur? What could lead someone to hide evidence that could potentially save an innocent man's life?

The Supreme Court has given us an answer.
Prosecutors are mostly upstanding people, but there are few bad ones mixed in, as in any profession. Our existing legal regime adequately trains lawyers on their ethical obligations, but, at the end of the day, lawyers make their own choices.
Prosecutors know their legal
responsibilities; when a troubling incident like this one occurs, it's because someone decided to disregard his duty and act in a dishonest way.
And in the Court's view, not much can be done to prevent it, because the problem lies with individual moral compasses, set years earlier, rather than with institutional and other situational pressures.

After being released from prison, Thompson successfully sued District Attorney Connick on the grounds that he had acted with deliberate indifference to the need to train prosecutors in their responsibilities to disclose exculpatory evidence, like the blood evidence that was kept from Thompson's attorneys.
But when the case made it to the Supreme Court, Justice Clarence Thomas, writing for the majority, overturned the $14 million in damages Thompson was set to receive—$1 million for each year he was on death row—relying on the above reasoning.
In the majority's opinion, ethical legal training is effective, the prosecutor's role is clear, and there just wasn't proof that Gerry Deegan's actions were anything but an isolated incident.

Similarly, Justice Scalia, in a concurrence joined by Justice Alito, characterized the withholding of evidence as the result of the actions of a lone “miscreant prosecutor” who had committed “a bad-faith, knowing violation.”
Deegan, in this framing, was a rogue agent—a loose cannon “willfully suppress[ing] evidence he believed to be exculpatory, in an effort to railroad Thompson.” To suggest that broader forces within the D.A.'s office might have contributed to the deprivation of Thompson's rights was ludicrous.
If you had a large barrel of apples, a few rotten ones were unavoidable: “the inevitability of mistakes over enough iterations of criminal trials” was something that society just had to accept.

This aligns with our common sense, although many of us would go even further.
Yes, we should expect there to be good and bad prosecutors, but we also think there is something unsavory about lawyers in general. They are sharks or hired guns, ready and willing to do whatever it takes to win.

Despite the pervasiveness of these stereotypes, explanations of dishonest behavior that focus on the bad character of certain lawyers
or all lawyers
are largely inaccurate. Lawyers do cheat and lie. They do break the rules and cause immense suffering.
When Deegan failed to turn over the blood test to Thompson's defense and hid the actual sample, he was violating the law and, more fundamentally, breaching basic moral tenets: a man's life was at stake, and Deegan kept him from learning of evidence that could have saved him. That is all true. The big question is, why? Until we have an accurate picture of what is driving things, we won't make serious progress in eliminating attorney misconduct.

If you spend time studying dishonesty, you will quickly notice a strange paradox: although most of us care about being moral and ethical, we step over the line all the time. Our behavior can be baffling.

On the one hand, we are rule-following creatures. We stop at red lights and pick up after our dogs even when no one is around; we do not shout curse words when visiting elementary schools or reach our hand into the tip jar at Starbucks or grope passing strangers or hunt other humans for sport. And we celebrate our rules of moral living in our religions, in our professions, and in our schools. We have monuments to the Ten Commandments and mandatory ethics seminars and criminal codes. To be labeled as unethical is to be tagged with a badge of ignominy.

On the other hand, take a look around: we are swimming in a sea of dishonesty.
At this very moment there are people right in front of us—strangers and those we know; our idols, our enemies, and our friends—behaving badly: employees lying on their time sheets or padding their expense accounts; athletes feigning fouls to win penalties or taking performance-enhancing drugs to gain an edge; cheating spouses and partners; men and women engaging in insurance fraud and tax fraud and defrauding their elderly
relatives; millions of Americans downloading billions of songs and videos that they did not pay for.

There is evidence of pervasive cheating at nearly every stage of life. In light of recent data, it may be time to retire our romantic notions of youthful innocence.
Cheating by students is rampant: over half of high school students admit to cheating, and the numbers appear to be just as bad or worse at the college level.
Graduate students cheat, too, with business students leading the way (56 percent admit to doing so) and aspiring lawyers actually below average (45 percent).
What's more, top students appear just as likely as the rest of the bell curve to violate academic rules.
In recent years, significant cheating has been revealed at the elite Stuyvesant High School in New York, the Air Force Academy, and Harvard.

In truth, people dodge and skirt, hustle and scam on Beggars Row and Wall Street and every avenue between. Watch your children, your spouse, your students, your co-workers, your employees, and you will see the game being played.

So what's driving it all? Why do people cheat? And what is it about our legal system that makes prosecutors particularly vulnerable?

If dishonesty doesn't come down to just a few people with bad characters, might the underlying commonsense model of why people cheat still be correct—that is, that people choose to cheat whenever the benefits outweigh the costs of potentially getting caught and punished?

Researchers decided to test that theory by paying people to solve number puzzles and varying the factors that we assume influence dishonesty. What they found was baffling.
Making it less likely that participants would be caught lying about the number of matrices they had solved did not significantly increase the level of cheating—nor did increasing the amount of money that participants were paid for correct answers.
Indeed, when the researchers
increased the payout up to $10 per matrix, cheating actually decreased.

Our dishonesty, then, is not a simple matter of cost-benefit analysis.
Lots and lots of people engage in dishonest behavior, but even when provided with the chance and incentives, they don't generally cheat “big.”

In one study documenting this phenomenon, behavioral scientists gave people the opportunity to cheat without getting caught on a multiple-choice test that awarded money for each general-knowledge question they got right.
And sure enough, a very large number of study participants did.
But each person cheated by a relatively small amount—only 20 percent of the amount he could have gotten away with.

It's as if there is something inside of people limiting how fast the dishonesty engine will turn.
According to researchers, that mechanism may be our own egos.
We are each strongly motivated to maintain our image as a virtuous person—and that motivation can act as a powerful constraint on our self-interested actions.
We want to believe that we are honest and ethical, and when we cheat, we endanger that rosy self-view.
The more an instance of cheating threatens to darken our picture of ourselves, the less likely we are to act.

In an interesting demonstration of this dynamic, a group of experimenters presented participants with an opportunity to earn money from cheating by lying about how many times a coin they had flipped had come up heads.
Although all participants were aware that they could cheat without getting caught, some participants were told, “Please don't cheat,” while others were told, “Please don't be a cheater.”
It's hard to imagine that such a subtle linguistic cue would have any effect at all, but the researchers found that it did.
When the verb “cheat” was used, some people still cheated, but when the self-relevant noun “cheater” was used, participants' identities were suddenly implicated, and there was no cheating.