Unfair (44 page)

It took four days:
“Juan Rivera, Center on Wrongful Convictions.”

But the police, as they often do:
“Juan Rivera, Center on Wrongful Convictions.”

Although the polygraphs administered:
Brief for Defendant at 77,
Rivera
(No. 2-09-1060). It is worth noting that, in experiments, falsely telling participants that a polygraph shows that
they committed a violation increases the number of people who admit to that violation. Kassin et al., “Police-Induced Confessions,” 17.

Rivera immediately became upset:
Brief for Defendant at 7–8,
Rivera
(No. 2-09-1060).

At around midnight:
Brief for Defendant at 9,
Rivera
(No. 2-09-1060).

He wasn't able to get the words out:
Brief for Defendant at 9,
Rivera
(No. 2-09-1060).

Over the next few hours:
Brief for Defendant at 9–10,
Rivera
(No. 2-09-1060).

By 3 a.m., the officers had:
Brief for Defendant at 11,
Rivera
(No. 2-09-1060).

Rivera, left on his own:
Brief for Defendant at 11, 27,
Rivera
(No. 2-09-1060).

Moved to a padded cell:
Brief for Defendant at 11, 27,
Rivera
(No. 2-09-1060).

The nurse on duty described him:
Brief for Defendant at 11–12,
Rivera
(No. 2-09-1060).

When she checked back:
Brief for Defendant at 12,
Rivera
(No. 2-09-1060).

Returning in the early morning:
Brief for Defendant at 12,
Rivera
(No. 2-09-1060).

The document, though, was so inconsistent:
Brief for Defendant at 13,
Rivera
(No. 2-09-1060).

The two detectives:
Brief for Defendant at 13,
Rivera
(No. 2-09-1060).

These interrogators focused on:
Brief for Defendant at 15,
Rivera
(No. 2-09-1060).

After a few more hours:
Brief for Defendant at 15,
Rivera
(No. 2-09-1060).

Questions like:
Brief for Defendant at 15,
Rivera
(No. 2-09-1060); Simon,
In Doubt
, 136.

Information that only the real perpetrator:
Simon,
In Doubt
, 136.

Juan Rivera discussed the crime:
Rivera
, 962 N.E. 2d at 67; Brief for Defendant at 5,
Rivera
(No. 2-09-1060); Brief for Respondent at 7,
Rivera
(No. 2-09-1060),
http://www.law.northwestern.edu/​legalclinic/wrongfulconvictions/​exonerations/documents/​Rivera_States2011Brief.pdf
.

Moreover, at least fifteen:
Rivera
, 962 N.E. 2d at 65–66. It is notable that a significant number of false confessions cases have involved taking the suspect to the crime scene. Garrett,
Convicting the Innocent
, 33.

Lamentably, these are just the types:
Simon,
In Doubt
, 136.

While a more rigorous interrogation protocol:
A less error-prone interrogation approach would have involved eliminating suggestive questioning, contaminating information, and coercive pressures, among other things. Although the Reid manual explicitly bars contaminating confessions by providing relevant details to a suspect, it still occurs. Garrett,
Convicting the Innocent
, 23.

This can be problematic when it comes to:
In Doubt
, 126; Carol Toris and Bella M. DePaulo, “Effects of Actual Deception and Suspiciousness of Deception on Interpersonal Perceptions,”
Journal of Personality and Social Psychology
47 (1984): 1063–73.

Beginning the process with a theory:
Simon,
In Doubt
, 126.

This, in turn, can lead them:
Simon,
In Doubt
, 137.

One study found that mock interrogators:
Simon,
In Doubt
, 137.

The results were stark:
Simon,
In Doubt
, 137.

As is common in false confessions:
Brief for Defendant at 9, 10, 42,
Rivera
(No. 2-09-1060). It is very common for suspects to provide facts that contradict what is known about the crime, appearing in at least 75 percent of known false confession exoneration cases. Garrett,
Convicting the Innocent
, 33.

And once a confession is extracted:
Brandon L. Garrett, “Introduction:
New England Law Review
Symposium on ‘Convicting the Innocent,' ”
New England Law Review
46 (2012): 680.

In turn, your defense attorney:
Kassin et al., “Police-Induced Confessions,” 23. While prosecutors tend to maximize the charges they bring against confessing defendants and seek higher bails, defense attorneys tend to push plea bargains thinking they'll lose at trial. Drizin and Leo, “The Problem of False Confessions,” 922.

Perhaps most important, a confession:
Once they get a confession, the police wrap things up, which means that new evidence of innocence tends to be disregarded and leads focused on other suspects tend to be ignored. Kassin et al., “Police-Induced Confessions,” 23; Drizin and Leo, “The Problem of False Confessions,” 921–23; Garrett,
Convicting the Innocent
, 35.

In one particularly egregious case:
Garrett,
Convicting the Innocent
, 35.

He was turned down, however:
Garrett,
Convicting the Innocent
, 35.

In eight of the first 250:
Garrett,
Convicting the Innocent
, 35.

The only reason these men:
Garrett,
Convicting the Innocent
, 35.

As remarkable as it is:
Garrett,
Convicting the Innocent
, 35.

Hard-nosed interrogations are particularly:
Simon,
In Doubt
, 132; Garrett,
Convicting the Innocent
, 21.

Failing to gain a confession:
Simon,
In Doubt
, 132.

By the time Juan was brought in:
Martin, “Prosecution's Case.”

In December 2011:
Martin, “Illinois: Inmate Cleared.”

Juan Rivera spent half his life:
Martin, “Prosecution's Case”; Martin, “Illinois: Inmate Cleared.” Juan suffered, as the court put it, “the nightmare of wrongful incarceration.”
Rivera
, 962 N.E. at 67–68.

It took Juan keeping faith:
Black and Fuller, “3rd Life Sentence.”

In a deeply troubling twist:
Steve Mills and Dan Hinkel, “DNA Links Murder and Rape of Holly Staker, 11, to Second Murder 8 Years Later,”
Chicago Tribune
, June 10, 2014,
http://articles.chicagotribune.com/​2014-06-10/​news/chi-dna-links-murder-and-rape-of-holly-staker-11-to-second-murder-8-years-later-20140610_1_holly-staker-dna-evidence-dna-match
.

During the closing argument:
Martin, “Prosecution's Case.”

Members of the media and others:
Martin, “Prosecution's Case.”

Ninety to ninety-five percent:
Lindsey Devers, “Plea and Charge Bargaining,” U.S. Department of Justice, January 24, 2011, 3,
https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf
; John H. Langbein, “Torture and Plea Bargaining,”
University of Chicago Law Review
46 (1978): 12.

Let that sink in:
Langbein, “Torture and Plea Bargaining,” 12; Devers, “Plea and Charge Bargaining,” 3.

Suppose you were told that:
Innocence Project, “James Ochoa,” accessed May 6, 2014,
http://www.innocenceproject.org/​Content/​James_Ochoa.php.

Twenty-year-old James Ochoa:
“James Ochoa”; R. Scott Moxley, “CSI Games: If DNA Evidence Doesn't Fit in Orange County, Alter It?,”
OC Weekly News
, March 13, 2008,
http://www.ocweekly.com/​2008-03-13/​news/csi-games/
.

He took the plea and spent:
“James Ochoa.” Thankfully, the stabbing was not fatal. Moxley, “CSI Games.”

The Supreme Court believes that:
Lucian E. Dervan and Vanessa A. Edkins, “The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem,”
Journal of Criminal Law and Criminology
103 (2013): 12, 46–47.

In one recent study extending:
Dervan and Edkins, “The Innocent Defendant's Dilemma,” 1, 3.

Over half of innocent participants:
Dervan and Edkins, “The Innocent Defendant's Dilemma,” 1, 3.

If we really believe in transparency:
Langbein, “Torture and Plea Bargaining,” 18.

Despite the bluster of the prosecutors:
R. Scott Moxley, “The Case of the Dog That Couldn't Sniff Straight,”
OC Weekly News
, November 5, 2005,
http://www.ocweekly.com/​2005-11-03/news/​the-case-of-the-dog-that-couldn-t-sniff-straight/2/
.

Most critically, the sheriff's crime lab:
The perpetrator's gun and hat both had DNA matching the same person, but not Ochoa's. R. Scott Moxley, “Oops,”
OC Weekly News
, October 26, 2006,
http://www.ocweekly.com/​2006-10-26/​news/oops/
.

But the real cards were:
R. Scott Moxley, “The Case of the Dog That Couldn't Sniff Straight,”
OC Weekly News
, November 5, 2005,
http://www.ocweekly.com/​2005-11-03/news/the-case-of​-the-dog-that-couldn-t-sniff-straight/2/
.

Mug shot photographs:
Frank Masters
, photograph, 1890 (New Zealand Police Museum, Porirua);
John Powell
, photograph, 1889 (New Zealand Police Museum, Porirua);
Alick Evan McGregor
, photograph, 1887 (New Zealand Police Museum, Porirua);
William Johnston
, photograph, 1887 (New Zealand Police Museum, Porirua).

Which one was convicted of raping:
“Frank Masters,” New Zealand Police Museum, accessed May 13, 2014,
https://sites.google.com​/site/newzealandpolicemuseum/home/online-exhibitions/​mug-shots/selectedbiographies/frankmasters
.

Which one was a tightrope walker:
“William Johnston,” New Zealand Police Museum, accessed May 13, 2014,
https://plus.google.com/photos/1051448457432646m30/​albums/5450146114861830929/​5450149070403000498?banner=pwa&pid=5450149070403000498&oid=1051448457432646m30
.

Which one was sentenced:
“John Powell,” New Zealand Police Museum, accessed May 13, 2014,
https://plus.google.com/photos/105144845743264611130/albums​/5450146114861830929/5450148046638424946​?banner=pwa&pid=5450148046638424946&oid=105144845743264611130
.

When a suspect was recently apprehended:
Michael Muskal, “Exterminator Charged with Murder in Death of Philadelphia Doctor,”
Los Angeles Times
, January 24, 2013,
http://articles.latimes.com/​2013/jan/24/​nation/la-na-nn-philadelphia-exterminator-murder-20130124
.

And as I began writing:
Frank Masters
;
John Powell
;
Alick Evan McGregor
;
William Johnston
.

The Internet provides a titillating:
“Celebrity Mugshots,”
CNN.com
, last updated March 20, 2013,
http://www.cnn.com/​2013/03/19/showbiz/celebrity-news-gossip/bruno-mars-mugshot-smile-gq
;
http://www.bing.com/​search?q=hot+mug+shots&qs=n&​form=QBRE&pq=hot+mug+shots​&sc=1-12&sp=-1&sk=
.

The rapist was the man:
“Frank Masters.”

The others in the lineup:
“John Powell”; “Alick Evan McGregor”; “William Johnston.”

Masters was a serial sex offender:
“This Day: An Extraordinary Scene,”
Evening Post
, December 4, 1889,
http://paperspast.natlib.govt.nz/​cgi-bin/paperspast?a=d&cl=search&d=EP18891204.2.45&srpos=58&e=——10​–51-byDA—2%22frank+masters%22-all
;
“Urgent Private Affairs,”
Evening Post
, June 10, 1886,
http://paperspast.​natlib.govt.nz/​cgi-bin/paperspast?a=d&d=EP18860610.2.11
.

Though all of those affected:
“Frank Masters”

Even if we could trade:
“This Day.”

During his fourth trial:
“Criminal Sittings,”
Evening Post
, October 5, 1888,
http://paperspast.natlib.govt.nz/​cgibin/paperspast?a=d&cl=​search&d=EP18881005.2.54&srpos=20&​e=——10–11-byDA—2%22frank+masters%22-all
.

And at the suggestion of his lawyer:
“Criminal Sittings.”

Nonetheless, Dr. Johnston:
“Criminal Sittings.”

So, despite Masters' pleas:
“Criminal Sittings.”

At his sentencing for that crime:
“This Day.”

“He couldn't help himself”:
“This Day.”

In addition to “suggesting that he should”:
“This Day.”

He wanted to do good:
“This Day.”

The reporter who recounted:
“This Day.”

But the judge was less sure:
“This Day.”

We all have intuitions:
Sharrona Pearl,
About Faces: Physiognomy in Nineteenth-Century Britain
(Cambridge, MA: Harvard University Press, 2010), 1, 38.

The idea that a person's facial traits:
Pearl,
About Faces
, 1, 11.

The message in the wind:
Pearl,
About Faces
, 186.

Darwin, Edison, and Daguerre:
“Victorian Science: An Introduction,” Victorian Web, last modified December 6, 2008,
http://www.victorianweb.org/​science/intro.html
.

One of those swept up:
Encyclopedia Britannica Online
, s.v. “Cesare Lombroso,” accessed May 18, 2014,
http://www.britannica.com/​EBchecked/topic/346759/Cesare-Lombroso
.

The Lombrosians were convinced:
Simon A. Cole,
Suspect Identities: A History of Fingerprinting and Criminal Identification
(London: Harvard University Press, 2001), 23.

They were particularly interested:
Cole,
Suspect Identities
, 23.

One of Lombroso's epiphanies:
Gina Lombroso-Ferrero,
Criminal Man According to the Classification of Cesare Lombroso
(New York: The Knickerbocker Press, 1911), xv.

Those among us who seemed:
Lombroso,
Criminal Man
, xv.

They were “born criminals”:
Jonathan Finn,
Capturing the Criminal Image: From Mug Shot to Surveillance Society
(Minneapolis: University of Minnesota Press, 2009), 14; Lombroso,
Criminal Man
, xv.

In order to identify those “degenerates”:
Cole,
Suspect Identities
, 23; Finn,
Capturing the Criminal Image
, 15; Encyclopedia Britannica, “Cesare Lombroso.”

He and his followers set about:
Cole,
Suspect Identities
, 23.

These were all on:
Cole,
Suspect Identities
, 24.

Man and cow image:
“File: De Humana Physiognomia-Kuh und Mann.jpg,”
Wikimedia Commons
, last modified August 1, 2008,
http://commons.wikimedia.org/​wiki/File:De_Humana_Physiognomia_​-_Kuh_und_Mannjpg/
.

Lombroso's project was greatly:
Finn,
Capturing the Criminal Image
, 15–16.

There were devices to record:
Finn,
Capturing the Criminal Image
, 15–16.

Perhaps my favorite invention:
Cole,
Suspect Identities
, 58; Robert Fletcher, “The New School of Criminal Anthropology” (Washington, DC: The Anthropological Society of Washington, April 21, 1861), 24–25.

Frigerio claimed that criminals:
Fletcher, “The New School of Criminal Anthropology,” 24–25.

In the quest to record:
Cole,
Suspect Identities
, 22.

Although mug shots were initially used:
The first use of photography in fighting crime was a simple means of making manifest a person's otherwise hidden criminal past. Cole,
Suspect Identities
, 20–22. And, in that sense, it paralleled earlier practices of altering the body of the criminal to signal his evil nature. Cole,
Suspect Identities
, 7. In preceding centuries, ne'er-do-wells had been literally marked. Cole,
Suspect Identities
, 7.

Medieval Europeans, for example, commonly resorted to branding and mutilation, and there are recorded examples in the American colonies as well. Cole,
Suspect Identities
, 7. Many readers will be familiar with Hester Prynne's scarlet letter A, but an alphabet soup of marks existed to convey to any onlooker the particular criminal character of the man or woman in question. Cole,
Suspect Identities
, 7; James A. Cox, “Bilboes, Brands, and Branks: Colonial Crimes and Punishments,”
Colonial Williamsburg Journal
, Spring 2003,
http://www.history.org/​foundation/journal/spring03/branks.cfm
. In Maryland, each county had an array of branding irons:
F
for forgery,
H
for stealer of hogs,
M
for manslaughter,
SL
for seditious libel,
R
for rogue, and
T
for thief. Cox, “Bilboes, Brands, and Branks.” The camera rendered such markings unnecessary—with a photographic record linking a man to his bad act, a preexisting mole or crooked nose could provide the same information.

The British and French recorded images of prisoners as early as the 1840s. Cole,
Suspect Identities
, 20. And, in the subsequent decades in the United States, police departments began to assemble “rogues' galleries” that could be displayed for members of the police—and sometimes the public—to view hundreds of photographs of known criminals in order to be able to note them later. Cole,
Suspect Identities
, 20-21. By comparing and cataloguing these photos, physiognomists hoped to capture the signs of criminal nature in the body with great accuracy. Cole,
Suspect Identities
, 24.

One British innovator, Francis Galton:
Wayne A. Logan, “Policing Identity,”
Boston University Law Review
92 (2012): 1573; Cole,
Suspect Identities
, 24.

What does a hotel thief:
Cole,
Suspect Identities
, 24.

Galton would take the pictures:
Cole,
Suspect Identities
, 24.

Conceivably, a person could then:
Cole,
Suspect Identities
, 26.

The work of Galton:
People had devoted their professional lives to devising complex classification systems, writing books, creating journals, circulating pamphlets, and holding society conferences, and it was mostly all bogus. Pearl,
About Faces
, 189.

And far worse, their crackpot:
Finn,
Capturing the Criminal Image
, 16–17, 20.

It seems we have come:
“Dachau Liberated: April 29, 1945,” This Day in History,
History.com
, accessed May 19, 2014,
http://www.history.com/​this-day-in-history​/dachau-liberated
.

We teach the forcible sterilizations:
John Kitzhaber, “Proclamation of Human Rights Day, and Apology for Oregon's Forced Sterilization of Institutionalized Patients” (speech, Salem, OR, December 2, 2002); Elizabeth Cohen, “North Carolina Lawmakers OK Payments for Victims of
Forced Sterlization,”
CNN.com
, July 28, 2013,
http://www.cnn.com/​2013/07/26​/us/north-carolina-sterilization-payments
.

Those, like Sylvester Stallone's mother:
Hope Reeves, “I See…Hemorrhoids in Your Future,”
New York Times
, March 10, 2013,
http://www.nytimes.com/​interactive/2013/03​/10/magazine/one-page-magazine.html?_r=0
.

Working toward an objective:
And, indeed, both men's work was the target of significant contemporary criticism from other criminologists. Neil Davie, “Lombroso and the ‘Men of Real Science': British Reactions, 1886–1918,” in
The Cesare Lombroso Handbook
, eds. Paul Knepper and P.J. Ystehede (New York: Routledge, 2013), 344–47; Neil Davie,
Tracing the Criminal: The Rise of Scientific Criminology in Britain, 1860–1918
(Oxford: The Bardwell Press, 2005), 21–22, 105–06, 257–59. Galton was even able to admit that his initial theory that criminals could be identified based on their fingerprints turned out to be false. Pearl,
About Faces
, 207.

Just as problematic, in considering:
Adam Benforado, “The Geography of Criminal Law,”
Cardozo Law Review
31, no. 3 (2010): 825–27 nn. 6–12.

As a general matter, we're inclined:
Lee Ross and Donna Shestowsky, “Contemporary Psychology's Challenges to Legal Theory and Practice,”
Northwestern University Law Review
97, no. 3 (2003): 1092–93; Alan Page Fiske et al., “The Cultural Matrix of Social Psychology,” in
The Handbook of Social Psychology
, 4th ed., vol. 2, eds. Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey (New York: Oxford University Press, 1998), 920.

And when we hear about some:
Arthur G. Miller, ed.,
The Social Psychology of Good and Evil
(New York: Guilford Press, 2004), 2–3.

We tend not to pay much attention:
Ross and Shestowsky, “Contemporary Psychology's Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social
Psychology,” 920; Benforado, “The Geography of Criminal Law,” 826–27. This is particularly true for those of us who live in Western individualistic cultures. Miller,
The Social Psychology of Good and Evil
, 24; Ross and Shestowsky, “Contemporary Psychology's Challenges to Legal Theory and Practice,” 1093.

Normally, we stick with our simple:
Ross and Shestowsky, “Contemporary Psychology's Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social Psychology,” 920.

Sometimes that turns out to be right:
One fifteen-state study by the U.S. Bureau of Justice Statistics showed that only 1.2 percent of those released after being convicted of murder were rearrested for homicide within three years. Patrick A. Langan and David J. Levin, U.S. Department of Justice,
Recidivism of Prisoners Released in
1994 (Washington, DC: Bureau of Justice Statistics, June 2, 2002), 1,
http://www.bjs.gov/​content/pub​/pdf/rpr94.pdf
. More broadly, approximately half of all of those convicted of homicide have no arrests for any crimes in the five years after being released. Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, U.S. Department of Justice,
Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010
(Washington, DC: Bureau of Justice Statistics, April 2014), 8,
http://www.bjs.gov/​content/pub/pdf​/rprts05p0510.pdf
. Counterintuitively, violent offenders appear significantly less likely to reoffend than those convicted of property or drug offenses. Approximately three out of four state prisoners are rearrested within five years of being released. Durose, Cooper, and Snyder,
Recidivism of Prisoners
, 7.