The moment he opened the case, the jeweler felt something pressed against his back. He turned around slowly to see that it was a gun. Between them, the robbers appeared to have two guns. They prodded him toward the back of the store, where Gentile lived in a private residence. As he was being marched past a showcase, Gentile surreptitiously pressed a silent alarm to alert police. One of the men warned Gentile not to touch anything, and the jeweler assured the robbers that he would comply with their instructions.
Three people were sitting at a table in the back of the store. One was a store employee; the others were Gentile’s friends. Holding them at gunpoint, one of the robbers warned, “Don’t look at us or we’ll kill you.” The trio looked quickly away. In short order, the jeweler found himself handcuffed to his employee, Rose Madera, while his two friends Abner Zeigler and Matthew Greco were handcuffed to each other. All the victims were forced to lie facedown on the floor. Gentile felt someone rifle through his pocket; a ring on his finger was removed. The victims lay still for five or ten minutes, as the robbers ransacked the store. Suddenly Gentile heard running footsteps and a voice shouting, “The cops, the cops are outside!”
The robbers ran toward the back of the store, through a parlor and a kitchen, and into a yard. They disappeared down an alley at the back. Gentile could not get up, so he asked his friends to buzz in the officers.
Philadelphia police officer Kenneth Rossiter was on patrol that day in South Philadelphia when he responded to a radio call from a fellow officer. In the backyard of a home about a block and a half from the jewelry store, the other officer had found some dropped jewelry. Rossiter met up with the other officer and they knocked on the door of the house, and on the windows, but no one answered. Some neighbors called out that they could see someone fleeing, and the officers took off in pursuit. Rossiter spotted a man running about a block away. The man turned north, ran behind a bank and through a parking lot, and ran north again. Rossiter ran a parallel route, and as he arrived at an intersection, he saw the man make a throwing gesture, as if he were discarding something. The man raced west, with Rossiter and the other officer in pursuit. They lost sight of him again. But close to the intersection of Hicks and Morris streets, about three large blocks from the jewelry store, Rossiter spotted the man sitting on a step. He had neither gun nor stolen merchandise in his possession. The officers placed him under arrest.
Police took the man back to the jewelry store, where Gentile identified him as one of the robbers with a gun. In the area where Rossiter had seen the man fling something away, police later recovered a .38 caliber revolver from under a parked car.
The photo of the man Rossiter arrested was the one that Catherine Valente saw on television two days later. Ballistics tests showed that the gun found was the same gun that had been used to murder Raymond Fiss.
The arrested man was identified as Ernest Porter, and prosecutors charged him with murder. Porter denied the charge. A single fingerprint lifted from the door of the beautician’s shop was said to match Porter’s left thumbprint. At the murder trial, Officer Rossiter conceded he had lost sight of the running man several times, and that the man he had arrested had no evidence on his person linking him with the robbery. There were no fingerprints on the gun. But prosecutors put Vincent Gentile on the stand, and the jeweler emphatically identified Porter as one of the robbers. Prosecutors used Gentile’s testimony to link Porter to the man who threw away the gun, and used the gun to link Porter to the murder of Raymond Fiss.
“Mr. Gentile, I’d just like to ask you, are you positive that this defendant in the white striped shirt is the defendant who was in your store with the handgun that day?” the prosecutor asked at one point in Ernest Porter’s murder trial.
“Yes, it was,” Gentile replied.
Porter’s public defender mounted virtually no defense. The jury took only forty-five minutes to find Porter guilty of the murder of Raymond Fiss.
Go ten blocks west of where Fiss was shot, and you get to the Schuylkill Expressway. Follow it west as it curves past central Philadelphia, past the art museum and the boathouses that light up at night. Hop onto West Girard Avenue, and then go west on Lancaster to Lebanon Avenue. If you’d made the six-mile trip in 1992, you would have arrived at the Love Pharmacy at 6525 Lebanon Avenue. The Love Pharmacy was owned by Thomas Brannan. He was sixty-four, and a very gentle and popular man. He often opened the pharmacy after regular hours—including all hours of the night—if people needed emergency medications. He had standing instructions to his employees—if they were ever robbed at gunpoint, no one was to offer resistance. Lives and safety were more important than money to Thomas Brannan.
On a Thursday morning that November, two young black men ambled into the Love Pharmacy. Brannan’s sister, Patricia Gibson, was working in the store. One of the young men told her he was suffering from stomach cramps. Gibson suggested he try the medication Donnagel. The young man’s friend suggested Pepto-Bismol. The men argued with each other, as they took in the layout of the pharmacy. One of the men asked Gibson what time the pharmacy closed. She said seven o’clock. The men left.
Sharon Brogan went to the Love Pharmacy that evening to pick up a prescription. She entered the store around six-thirty, but then remembered she had forgotten to bring a medical card. She lived nearby, so she turned around to go home and get it. As she exited the store, she noticed four young black men standing near a Cadillac in front of the store. When she returned to the store a few minutes later, the men were no longer outside the store; they were inside. One of them stood at the door. Brogan tried to get in, but the young man told her the store was closed.
A voice in the background shouted, “Get her in here!”
The young man grabbed Brogan and pulled her inside. A holdup was under way. The man at the door went through her pockets and took her checkbook. Brogan saw the cashier Maureen Quinn in the back, while another woman, Diane Copes, lay facedown on the floor.
The leader of the robbers asked Brannan for a prescription drug; the pharmacist told him pharmacies in Pennsylvania did not carry that drug. Quinn, the cashier, perhaps remembering Brannan’s instructions to be cooperative in the event of a holdup, led the robber to a cabinet where all controlled substances were kept under lock and key. Misunderstanding what Quinn was doing, and believing she was contradicting her boss, the robber asked Brannan why he had lied.
The robbers made Quinn push the NO SALE button on the cash register. All the store employees were now on the floor, lying facedown as the robbers ransacked the pharmacy’s money and drugs. They took a bottle of the narcotic Percocet, ten bottles of Xanax, about sixty money orders, and approximately four hundred dollars in cash.
Then the women in the store heard a shot—it came from the robber standing over the prostrate body of Thomas Brannan. The pharmacist had been offering no resistance; he was shot in the back as he lay facedown on the floor.
Brogan heard one of the other robbers exclaim, “What did you do that for?”
The robbers quickly exited. Quinn called police. Brannan was not dead, but he was dying.
The pharmacist told medics his stomach was on fire. Gentle to the last, he made a quip when someone checked on him a moment later: “I’ve had better days.”
Five days after Brannan’s murder, someone tried to cash one of the stolen money orders from the Love Pharmacy. The cashier, Mitchell Wolf, called Traveler’s Express, the bank that owned the account, and then the pharmacy, which was listed as the issuing agent. When Wolf heard a recorded message on the answering machine that the pharmacy had been closed because of a murder, he called authorities. Police, meanwhile, were following up on a tip from a man who claimed to have heard something from one of the robbers—the tipster said the man who shot the pharmacist was called Arthur Hawthorne. The tipster identified Hawthorne in a photograph. Hawthorne was arrested eight days after the murder; he threw a telephone at police officer James Westray when the cop burst through the door. Hawthorne tried to grab Westra
y’s shotgun. The police officer reversed the gun and slammed it into Hawthorne’s head, and knocked him to the ground.
The other robbers were quickly rounded up. One of the four, David Sheppard, said Hawthorne and another young man had asked the others to help pick up a prescription. He claimed he had not known a robbery was planned until it was under way. Sheppard said he had remonstrated with Hawthorne in the getaway car about shooting the pharmacist. “It was fucked up, because the guy gave up everything and there was no reason to shoot him. He was an old guy.”
Police showed a photo array that included Hawthorne to Sharon Brogan, the customer who had been pulled into the pharmacy as the robbery was getting under way. Brogan identified photo number six as the man who was standing over the pharmacist when he was shot. It was Hawthorne.
The same day, Diane Copes, who had had to lie facedown in the pharmacy, also identified Hawthorne as the man who had shot Thomas Brannan. Maureen Quinn, the cashier, also independently identified Hawthorne as the murderer. “Number six looks like the man who grabbed Tom, and that’s the man who shot Tom.”
Hawthorne’s ex-girlfriend turned over a tape to police on which the robber had said he was going to have to leave her for a while and go away. And Hawthorne’s sister said her brother had incriminated himself when she’d asked him if he was involved in the killing.
“Shut up. You talk too much,” he had said at first.
“You must have had something to do with that. You’re sitting there looking all stupid,” she’d retorted.
“Yeah,” Hawthorne had admitted. “I killed that man.”
The crimes I have just told you about involve a number of other factors. At the time of his murder trial, Ernest Porter faced other robbery charges, and a rape charge. Arthur Hawthorne had allegedly robbed two other stores in July 1992; when police officer Robert Dunne arrived at the scene of the second robbery, he found himself staring into a 9 mm semiautomatic gun. At point-blank range, Hawthorne pulled the trigger. The gun clicked twice but did not fire. In October, Hawthorne again pulled a gun on police; both times, he was released on bail. Both men had long and troubled emotional histories. Porter had been in psychiatric care since he was four; Hawthorne came from a dysfunctional family, where drugs ruled his life from an early age.
In 2006 Stanford University psychologist Jennifer Eberhardt and three other researchers, Paul G. Davies, Valerie J. Purdie-Vaughns, and Sheri Lynn Johnson, conducted an analysis of why some violent crimes produce death sentences while others result in life imprisonment or lesser terms. Eberhardt and her colleagues examined a database of more than six hundred cases in the Philadelphia area, cases in which the crime committed was serious enough to warrant the death penalty. From this group of cases they extracted the photographs of all the black defendants who had been convicted of murdering white victims. The group included Ernest Porter and Arthur Hawthorne. They asked a large group of independent people who knew nothing about the cases—not even that they were looking at criminals—to rate the faces on one measure: the degree to which they looked stereotypically black. Whether or not race has any meaning as a biological construct, people had no trouble identifying stereotypically African features: thicker lips, broader noses, curlier hair, and darker skin tone. Take a look at the two images in Figure 2. These are pictures of volunteers, not criminals. See if you have any trouble telling which face looks more stereotypically African.
Now look at the two images in Figure 3. The picture of Arthur Hawthorne is on the left, and Ernest Porter is on the right. Do you have any trouble telling which face looks more stereotypically African?
Figure 2. Stanford psychologist Jennifer Eberhardt showed that people are quickly able to pick out features that are stereotypically African. These two men are volunteers.
Figure 3. Stanford psychologist Jennifer Eberhardt has studied whether the features and skin tone of convicts influence the severity of their sentences.
Once the psychologists had obtained ratings for all the defendants, they compared the sentences of those who looked more African than average with those who looked less African than average. Without any other information, without knowing anything about the crimes or the extenuating circumstances, without hearing arguments by prosecutors and defense teams, without having a chance to think about who made up the juries, you would think it would be impossible to guess which criminals got the death penalty. You would be wrong. Defendants who looked more stereotypically black than average were more than twice as likely to receive the death penalty as those who looked less black. If you split the convicts into two groups, the “less black” group stood a 24.4 percent chance of getting the death penalty. The “blacker blacks” had a 57.5 percent chance of being sentenced to death.
Porter’s conviction involved a far more circuitous case than Hawthorne’s conviction. Porter was identified by the jeweler Vincent Gentile in connection with a robbery. Police then linked a gun thrown by a man fleeing the robbery to the Fiss murder. There were no eyewitnesses to the murder, and no fingerprints on the gun. The only person who got a glimpse of Fiss’s killer—the septuagenarian Catherine Valente—said on the day of the killing that she would not be able to identify him. In the other case, there were more than half a dozen people who saw Hawthorne kill Brannan, and several others who provided corroborating evidence. Raymond Fiss had had an altercation with his assailant before he was shot; by contrast, Brannan had offered no resistance and had been lying facedown on the floor when Hawthorne shot him in the back. But it was Porter who got the death sentence and Hawthorne who got life in prison.
It is important to note that Eberhardt’s research does not tell us that Porter should have received a life sentence or that Hawthorne should have been sentenced to death. But what it does tell us is that there are systematic differences in the way people with Ernest Porter’s skin tone and features have been evaluated in the Pennsylvania criminal justice system. Whatever our view of these cases in particular, and of the death penalty in general, we can agree that such results are disturbing.
When the Pennsylvania Supreme Court refused Ernest Porter’s appeal in 1990, Supreme Court Justice James T. McDermott told Porter that to escape the jaws of justice required extraordinary luck. Waxing eloquent from the bench, McDermott said, “Those who bring a criminal purpose to the daily lives of others, as did the appellant here, must pass through that sticky web of the ordinary round of things. To alter them to fit a criminal purpose requires more than malice and a gun. It requires that the passerby, the late or early riser, the sleepless or ill neighbor, the returning party goer, house painter, roofer, locksmith, cement crew, sudden fire, clocks running slow or fast, and the other quotidian needs and purposes that tie us to the earth synchronize with their single purpose. As the appellant was to find, they rarely do.”
McDermott was wrong. Chance, in the role of skin tone and facial features, plays a very large role in deciding the fate of men such as Ernest Porter.
There are a host of other examples in the criminal justice system that reveal an appalling lack of consistency. Some kinds of crimes are much more likely to be solved than others. Some criminals get the book thrown at them; others get away with lighter charges. Prosecutors in urban areas are less likely than their counterparts in rural areas to seek the death penalty for cases involving crimes of equivalent seriousness. Where violent crime is common, there appears to be a desensitization effect that prompts urban prosecutors to unconsciously rate these crimes as less egregious than their rural counterparts do. A variety of reports suggest that police (and the mass media) are much more interested in crimes involving white victims than in crimes involving victims who are people of color. Also, Eberhardt found that the bias against darker-skinned convicts in death penalty sentencing was limited to cases involving white victims, and did not extend to cases where victim and perpetrator were of the same race. Something about black-on-white crime activated unconscious stereotypes that linked criminality with race in the minds of jurors.
There is a better explanation for the data, a simpler explanation. Juries that decided to send all those extra people with Ernest Porter’s skin tone to death were convinced they were doing the right thing. If you spoke to these juries, you would not find them packed with bigots. You would find upstanding people who were firmly convinced they were doing the right thing—much as Frances Aboud’s preschoolers thought they were doing the right thing in associating words such as “cruel” and “bad” with some faces rather than with others.
Like in many other areas where the hidden brain influences us without our awareness, there is one fundamental problem that is rarely addressed when we think about racial disparities in the criminal justice system. Like deciding which people to hire for jobs, or guessing which stocks to buy, the criminal justice system is based on the idea that human behavior is the product of conscious intention. We believe that juries that want to be fair are fair. We believe good intentions equal good outcomes. The assumption—the false assumption—is that biased outcomes result from deliberate bias and that such errors can be overcome by setting up a confrontational system where prosecutors and defense attorneys keep one another honest.
Why do we hold so resolutely to this assumption in the face of all the evidence to the contrary? For one thing, it is easier. We are programmed to trust our memories, judgments, and perceptions. When we feel we are acting fairly, it is easy to conclude that we must in fact be acting fairly. Besides, the alternative is terrifying. If we accept the possibility that people—well-intentioned people—can be unconsciously biased into doing the wrong thing even when they explicitly feel they are being careful and fair, we must acknowledge that our system of justice is not just prone to occasional error but that it is designed to fail regularly. The jury system, after all, enshrines the personal intuitions of twelve human beings as the word of law. Given the unconscious errors that jurors, judges, and prosecutors—and even defense attorneys—are vulnerable to, gross failures are inevitable, just as buildings based on a child’s understanding of physics will inevitably fall. Re-imagining our system of justice based on the new understanding of the brain and behavior is a daunting undertaking. It isn’t surprising that we prefer to hold on to the myth that the good intentions of honest people can keep unconscious biases at bay when it comes to decisions involving the lives and deaths of other human beings.
The Hidden Brain: How Our Unconscious Minds Elect Presidents, Control Markets, Wage Wars, and Save Our Lives Page 20