Unfair

by Adam Benforado

  As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behavior but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be powerful players out there taking advantage of this knowledge to stack the cards in their favor at the expense of the weakest?

  I was drawn to these issues in the early days of law school, as I began to realize that the way we understand the thinking and behavior of our legal actors is incorrect—and, frequently, harmful. The more I read and thought about things, the more convinced I became that we need a new model, grounded in the science of the mind, for our legal system to be truly just. In the last decade I’ve dedicated my professional life to exposing the flaws and pointing the way forward.

  The supporting evidence in this book includes research I’ve conducted with other legal scholars and psychologists as well as studies I cover in my law school courses and outside lectures. Although the science is powerful, we need to handle it with care. Among other things, we need to remember that the laboratory can be different from the real world, that correlation is not causation, and that not all findings are equally established and robust. There is a danger when lawyers, judges, and policymakers start making changes to our legal system based on a flawed understanding of the relevant science or on unsubstantiated research.

  But we also need to be conscious, right from the outset, of the immense cost of failing to consider potentially relevant scientific insights until they have reached the level of dogma. As we wait five or ten or fifty years for a finding to become incontrovertible, people’s lives are being upended by legal rules, principles, and norms that often have no scientific basis at all.

  Many academics and journalists voiced grave misgivings when Judge Luisa Lo Gatto of Como, Italy, reduced the sentence of Stefania Albertani from life in prison to twenty years, based, in part, on structural images of her brain showing that two areas, the anterior cingulate gyrus and the insula, contained less gray matter than those of the average healthy woman. Stefania had pled guilty to murdering her sister, burning the corpse, and later trying to kill her parents. Critics of the reduced sentence made compelling arguments that the neuroscience linking deficiencies in these parts of the brain to reduced inhibition and increased aggression was far from fully developed and that it was a real leap to use it to explain a particular individual’s actions. Moreover, they noted, Stefania’s brain had been compared with the brains of just ten other women.

  These are legitimate concerns. Yet few who sounded the alarm thought to question the basis of Stefania’s initial sentence.

  It seems obvious that a person who chooses to force-feed her sister lethal quantities of psychotropic drugs before setting her on fire deserves severe punishment. But what research is there to demonstrate the underpinnings of that intuition—that “guilty minds,” evil, free will, and so on actually exist? Our thoughts, beliefs, and actions are simply the product of roughly 100 billion neurons, each with its associated synapses, sending out and receiving neurotransmitters. If some of these electrochemical reactions don’t occur in the normal way, because of, say, a tumor or a traumatic brain injury, a person may lack empathy, or hear voices, or have trouble remembering things. Be born with the wrong set of genes, which lead to the wrong set of electrochemical reactions, and your chances of committing a crime skyrocket. Where do notions of personal volition and blameworthiness fit in?

  Skepticism is critical to building a better legal system, but some of the skepticism about the latest research seems to reflect fear of change and blind faith in the status quo as much as it reflects a careful weighing of the science. We must not be so cautious that we end up tacitly sanctioning a system that rests upon superstition and myth.

  Our judicial system is flexible enough to respond to new developments in the mind sciences that reveal flaws in our laws and processes. There are solutions and remedies within our reach. Some of these solutions, like reconceptualizing which behaviors we punish, are grand and ambitious and must be the focus of long-term efforts. But many others, directed at police training, rules of procedure, courtroom design, and our legal code, can be implemented in the near future. Whether we choose to pursue them will have less to do with our natural limitations and much more to do with the robustness of our commitment to equal justice under the law.

  Are we willing to look into the deep recesses of our brains as we seek to root out unfairness, even if it means learning things about ourselves that we wish were not true—and transforming practices that have been around for centuries?

  Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter if certain people are disadvantaged from the outset simply because of the structure of their brain or the shape of their face?

  How troubled are we by the thought that, this very day, men and women are sitting on death row for crimes that they did not commit—one in every twenty-five, by the best estimate?

  The development of DNA testing in the 1980s has given us a glimpse of the problems that beset our justice system. But it is as if we lit a single match in a vast, dark mansion. The dim light has allowed us to see that our criminal process can be horribly flawed—over three hundred people have been exonerated based on genetic mismatches since that time, more than 95 percent of them wrongly condemned as murderers and rapists. “The ghost of the innocent man convicted” is no “unreal dream,” as the esteemed jurist Learned Hand once assured us.

  Yet the magnitude of the crisis is many times larger. Still in the shadows are the vast majority of cases in which potentially exonerating DNA evidence wasn’t available, no good lawyer could be found, or an erroneous conviction just wasn’t worth fighting. Beyond the room in which we stand are the guilty who went free, the victims who were ignored, the prisoners suffering silently, the innocent men pushed up against walls and patted down. There are corridors of injustice we’ve never thought to inspect. And were we to finally descend to the pitch-black basement, we would find the weight of everything above us resting in sand—the key assumptions that our legal system makes about human nature, good and evil, honesty and dishonesty, without much real-world support at all.

  There is no way to appreciate the grievous unfairness in our house of law or fashion a remedy until we understand the human psychology that is driving it. That is the goal of this book. It is time to turn on the lights.

  PART I

  Investigation

  1

  THE LABELS WE LIVE BY

  The Victim

  Jerry Pritchett had stepped out in the cold January night. It was Friday, a little past nine, and Jerry was wearing his slippers. He was just fetching something from his car. But he paused.

  There, between the bare ginkgo trees, was a pale, gray-haired man flat on his back in the dim light of a street lamp. The sidewalk that lined the neat brick houses on the north side of Gramercy was empty, save for the body. As Jerry approached, it was clear that something was wrong, but the man couldn’t speak. When Jerry asked him a question, he only groaned in reply. He wasn’t carrying a wallet, but Jerry saw a wedding ring and a watch.

  Jerry’s wife, Claude, made the 911 call and then joined her husband. She noticed that the man seemed disconnected: his eyes wouldn’t meet hers, and when she spoke he didn’t seem to understand. He was trying to move himself into a sitting position, but because he was using only the left side of his body, his strength kept giving out, causing his head to pitch back against the concrete. Jerry placed one of his slippered feet under the man’s skull.

  Less than ten minutes after the emergency call, four D.C. firefighters pulled
up to the house. Almost as soon as they started to attend to the man, he began to vomit.

  Claude thought that the man had suffered a stroke, but the firefighters smelled booze. This wasn’t a stroke or heart attack: as one of the firefighters remarked, “Nine out of ten times it’s alcohol-related.” The engine driver found a little blood on the man’s head above the right ear, but there wasn’t any noticeable swelling, and a little pressure applied with a gauze pad stopped the bleeding. They decided not to perform a complete assessment or record the man’s heartbeat, breathing, or blood pressure.

  When one of the responding police officers arrived on the scene and asked the firefighters what was wrong, they said that the man was “possibly intoxicated,” that he “fell and hit his head.” As a result, the cops kept to the periphery. According to protocol, they should have worked to secure the scene and begun a preliminary investigation to figure out whether a crime had occurred, but here it didn’t seem necessary: this was just a drunk.

  The ambulance carrying emergency medical technicians finally arrived, twenty-three minutes after it was dispatched. “What we got?” the crew leader asked, and one of the firefighters replied, “ETOH,” which is short for ethyl alcohol, the alcohol in wine, vodka, and other spirits. She wasn’t pleased: “We came all this way for an ETOH?”

  The firefighters had noticed a few things that didn’t quite add up—the constriction of the man’s pupils, for instance—but they didn’t pass that information along. And neither of the EMTs asked; the man’s condition was as obvious as the foul stench of vomit on his coat. Consequently, they loaded him onto a stretcher without a backboard or neck collar. Given her advanced training, the crew leader was supposed to take charge of the patient, but she got in front to drive without examining the man.

  As the assistant EMT did a neurological assessment in the back, he found that the man was barely conscious—scoring a 6 on the 15-point Glasgow Coma Scale, which called for a Priority 1 designation. The assistant, though, classified him as a Priority 3, meaning that he was stable. The man’s inability to form words, his diminished eye and motor responses, just came down to intoxication—nothing to worry about. The assistant skipped the other cognitive tests and left the run sheet blank.

  Although Fire and Emergency Medical Services policy requires transporting patients with altered mental status to the closest appropriate facility, the EMTs decided to take the man to Howard University Hospital. It was twice as far away as Sibley, but the crew leader needed to run some personal errands, and Howard was more convenient. The patient could sleep it off in the ambulance just as well as he could at the hospital.

  When they arrived at Howard, the EMTs moved the man onto a gurney and told the triage nurse that he was drunk. He was pushed into the hallway and left there; fifteen minutes passed, then thirty, then an hour. The hospital staff didn’t know about the low Glasgow Coma Scale score or any other details about the man, and they, too, took the diagnosis of intoxication at face value. As the triage nurse later explained, she assumed he’d been talking to the EMTs and was now sleeping, so she “just let him sleep.”

  No one at the hospital performed the required intake assessments, and when the triage nurse discovered that the man had an abnormally low temperature, she disregarded the information and moved on. After all, it was a cold night. She didn’t check his pupils because that would wake him up, and sometimes when drunks woke up, they became belligerent and tried to leave the hospital. Shining a light in his eyes would just mean taxing an already short-staffed hospital. “I saw he was not in distress so I did not wake him,” she later explained.

  When she passed the man off to the charge nurse, the triage nurse said, “We have another ETOH.” And when the team leader for the C and D corridors of the ER was told the same thing, she just “left it alone.” He was not having respiratory problems, so he “was not a priority at that time.” With no reason to rush, the doctor elected to wait for the man’s vomit to be cleaned up before she examined him.

  Then something happened that changed everything.

  At around 11:30 p.m., another nurse came by to help the team leader sanitize the patient in hallway D. As they were moving the gurney, she noticed that the man’s breathing was different: he now seemed to have a growling snore. That was sometimes a bad sign, so they gave him a sternum rub to check his responsiveness, and the patient “flipped his arms and legs inward.” They repeated the rub, and he reacted the same way.

  The nurses couldn’t believe it: he was “posturing,” a common indication of a head injury. But wasn’t this an ETOH? No one had said anything about a head injury.

  The doctor saw the posturing from the nurses’ station, and they immediately moved the man to the resuscitation room and called the trauma team.

  What had seemed, a moment earlier, to be a routine case of over-imbibing had suddenly become a life-or-death emergency. They intubated the man and now began to discover more cause for concern. His pupils were unequal and did not react normally to light; his breathing was shallow; and they found a small bump and some blood on the side of his head.

  They had been looking at things all wrong. The symptoms he exhibited were caused by a neurological injury, not intoxication. And they had wasted hours.

  The man was taken in for surgery at 5:50 a.m., more than eight hours after he was first evaluated by emergency medical personnel. It would be for naught.

  David Rosenbaum, the award-winning New York Times journalist, died the next day of a brain injury when a blood clot caused his brain to swell. The sixty-three-year-old had retired a month earlier after nearly four decades at the paper’s Washington bureau covering the Capitol’s defining political battles. He had a wife, Virginia; two children, Dorothy and Daniel; and two granddaughters. He lived right around the block from Jerry and Claude Pritchett, on Harrison Street.

  —

  How had David injured his head?

  The major breaks in the case came down to luck. The lead officer on the scene Friday night when David was put into the ambulance just happened to stay on after his regular shift and answer a radio call about a missing person. When he visited the home and looked at a photograph of the husband who hadn’t returned from his evening stroll, it clicked: this was the same “man down” from earlier in the night on Gramercy Street.

  However, it wasn’t until well into Saturday, when credit-card companies called about several suspicious purchases on David’s accounts, that the police realized the extent of their mistake. This was a possible robbery and assault, and they hadn’t even secured the crime scene. The perpetrator or perpetrators had been given almost an entire day’s head start.

  But they caught a break. After seeing coverage of David’s death on the news, Michael Hamlin, a twenty-three-year-old maintenance worker, walked into the Seventh District police station to tell his story. Hamlin later claimed that it was out of remorse—the incident was “bearing on his conscience”—though there was some evidence that he thought he might be able to talk his way out, or at least avoid deeper trouble.

  According to Hamlin, he had picked up his cousin, Percy Jordan Jr., that night in his green Cadillac. He noticed the hard plastic pipe that Jordan, forty-two, had in his backpack and asked what it was for, to which Jordan shot back, “You know what it’s for.” As they drove, Jordan said, “Let’s go get someone,” adding that they should “go into some of the nice houses they got up there,” by which he meant David Rosenbaum’s northwest D.C. neighborhood. After they parked, they spotted a man with headphones walking down the street, and Jordan went to hide behind a tree right in front of the Pritchetts’ house. When David passed by, Jordan grabbed him, hit him in the head and waist with the pipe, and said, “Give it up, old man.” The force of the blows cracked two of David’s ribs and fractured his skull. With David on the ground, Hamlin ran over and grabbed the wallet out of his back pocket.

  It was a good score: around $270 in cash, which Jordan and Hamlin split, along with various credit and debit c
ards. Leaving the area, they used one of the cards to fill up the gas tank and purchase some snacks. They were back in the car, eating chips and sipping juice, before David was even discovered by the Pritchetts.

  —

  Lady Justice wears a blindfold. Visit the Supreme Federal Court of Brazil in Brasilia or the Shelby County Courthouse in Memphis, Tennessee, and you will see her: sword in one hand, balance in the other. As the great champion of liberty William Penn once explained, “Justice is justly represented blind, because she sees no difference in the parties concerned. She has but one scale and weight, for rich and poor, great and small.” That is as true for victims as it is for suspects and defendants. The identity of the victim does not influence police work, prosecutions, or sentences. Every man or woman is the same in the eyes of the law.

  At least, that’s what we’re told. When seventeen-year-old Trayvon Martin, an African American, was shot and killed by George Zimmerman, a neighborhood watch leader, in a gated community just outside Orlando, Florida, many around the country expressed outrage that Zimmerman had not been arrested immediately. It seemed to be a clear case of racial bias: when young black men are killed, no one cares. But the special prosecutor, Angela Corey, pushed back: “We only know one category as prosecutors, and that’s a ‘V.’ It’s not a ‘B,’ it’s not a ‘W,’ it’s not an ‘H.’ It’s ‘V,’ for victim. That’s who we work tirelessly for. And that’s all we know, is justice for our victims.” Ask any D.A., any police captain, any judge, and that’s the official line.

  But how accurate is this narrative of equal justice?

  Consider the case at hand. It can be divided neatly into two distinct periods: the time when the victim was John and the time when he was David. When his nametag read JOHN DOE ETOH, firefighters, EMTs, nurses, and doctors neglected rules and procedures, ignored responsibilities, and went through the motions. The police, for their part, did not interview potential witnesses, try to identify the victim, canvass the neighborhood, collect any evidence, or question why an apparently intoxicated person had no wallet. The headphones that were found next to John’s body in the grass were simply left at the scene. When the lead officer was asked whether he had filled out the mandatory incident report, he replied, “No, not for a drunk.”