Unfair

by Adam Benforado

  And it stands as a warning to all of us. We have been lulled into thinking that discarding the rack and the back-room brute was enough. But all we have done is change the form of our coercion. The wounds and scars are now hidden, which leaves us in a far more precarious position. How do we spot a coerced confession when there are no bruises or welts? How do we know to sound the alarm bell when no one wears the torturer’s cowl or beats out a confession, innocence be damned?

  During the closing argument of Juan’s third trial, the prosecutor Mike Mermel asked jurors, “Is there anything in the makeup of any of [the police officers involved in the case] that would lead you to believe that they were the kind of people who had dedicated their lives to this profession, yet just decided to just frame this poor innocent Juan Rivera because they were tired of investigating and wanted to go home?” If the answer was no, it followed, Juan must be guilty.

  But the science tells us that this is dead wrong. A person can end up admitting to a crime he did not commit when everyone is trying desperately to do their best, when justice is sought, when no detective rolls up his sleeves and puts a fist into the suspect’s gut. It wasn’t that the thirty-six jurors were stupid or apathetic. It wasn’t that Judge Starck or the prosecutors were corrupt. It wasn’t that Juan had incompetent lawyers. Members of the media and others have advanced all of those explanations, but they miss the real reason why Juan was sentenced to life in prison.

  Juan lost his third case because professionals and concerned citizens striving to do the right thing could not see the coercive forces behind his confession. We cannot afford such blindness. As I will show in the final chapter, empirically tested questioning techniques that avoid the pitfalls of the Reid approach are already being used in other countries and could be used here. But we must also ask ourselves the broader question of whether seeking an admission of guilt is a proper approach for a just legal system.

  In the United States today, the vast majority of people charged with a crime are presented with a choice: say you did it and receive leniency, or maintain your innocence and suffer the consequences if a jury doesn’t agree. Ninety to ninety-five percent admit guilt, which means no one ever has to come forward with any proof that the defendant is actually responsible, no jurors ever consider the evidence, and the trial process is completely short-circuited.

  Let that sink in: nine out of ten prisoners are being punished based solely on their own admission of guilt.

  We’ve put away the breaking wheel, yes, but how far have we really come?

  Suppose you were told that the victims of a carjacking had identified you as their assailant and that you had two choices: (1) plead guilty to the charge and spend two years in prison or (2) try your luck at trial, with a potential sentence of twenty-five years to life. If you knew you were innocent, would you take the risk? Twenty-year-old James Ochoa faced this very choice and decided that he couldn’t bear the chance that an Orange County jury would believe the victims’ mistaken identification. He took the plea and spent sixteen months in prison, during which time he was stabbed by another inmate, before the police caught the actual perpetrator on an unrelated carjacking and got a DNA match.

  The Supreme Court believes that such cases are rare, but the experimental evidence suggests otherwise. In one recent study extending over several months, college students were given a choice: admit that you knowingly cheated on a logic test, avoid a trial before the Academic Review Board, and give up the participant payment you were supposed to receive; or proceed to the trial, risking loss of the payment, assignment to a mandatory ethics course, and discipline from your faculty advisor. Over half of innocent participants falsely admitted to cheating.

  If we really believe in transparency, freedom from coercion, and justice grounded in proof, we cannot continue to operate a system based on plea bargaining. Despite the bluster of the prosecutors in Ochoa’s case, they were holding a weak hand: Ochoa had a strong alibi, eyewitness identifications were inconsistent, and the bloodhound that purportedly led the police to Ochoa’s front door had been improperly handled. Most critically, the sheriff’s crime lab had eliminated Ochoa as a source of the DNA and fingerprints left in the car and on the gun. But the real cards were never revealed, and no one ever evaluated the actual facts.

  That is the madness of the plea. And given that fewer than 10 percent of criminal defendants ever make it to trial, it would seem that the plea bargain should be the overwhelming focus of reform efforts. But its failings are interwoven with those elsewhere in the criminal process: the reason so many people elect to plead out is that they dare not take their chances with the rest of the system. If police investigations, trials, and punishments weren’t subject to the serious flaws taken up in the remaining chapters, innocent men and women would never plead guilty. They could put their faith in truth, justice, and equality and know it would see them through.

  3

  THE CRIMINAL MIND

  The Suspect

  Prisoner Records 1884–1889 New Zealand Police Museum Collection

  Can you spot evil in a face?

  Look at the men above. Which one was convicted of raping an eight-year-old girl? Which one was a tightrope walker caught for larceny? Which one was sentenced for killing a sheep?

  Our gaze traces the arch of an eyebrow, the crookedness of a nose, the jutting ear. We look at the lips: are they clenched, calm, frightened, angry? Are those the hands of a pedophile?

  We cannot help it. There is something about a mug shot that grabs us by the collar and pulls us in for a second, and then a second more.

  I find it hard to read about a crime without inspecting the accused. When a suspect was recently apprehended for the brutal murder of a young doctor in her home just up our street, the first thing I did was type in his name so that I could look at his face. It was almost automatic—a necessary step in the process of encountering a harm, examining its contours, trying to make sense of it. And as I began writing this book, I spent hours poring over photographs like these four, taken in New Zealand between 1887 and 1890.

  I am not alone in feeling the magnetic pull of these images. There are books and gallery exhibitions, government databases and private collections, eBay auctions, CNN slideshows, and dedicated websites all devoted to mug shots. They are ubiquitous: our most wanted and our least wanted.

  Part of the allure is pure voyeurism, of course. The Internet provides a titillating assortment of “hot mug shots” and “weepy mug shots” and “face tattoo mug shots”—and separate pages of celebrities and people with strange haircuts and people who have felt the strong arm of the law. We can gape at their eyes, painted up Cleopatra-style or swollen shut. But there is something more to it, I think.

  These faces—and bodies—offer the possibility of uncovering the signs and causes of criminality.

  When something awful has happened, we search for the harbingers that might have warned us away. And we seek the origins of the harm: we want to know what could lead a person to light a home on fire, shoot a man in the back, or sexually abuse a child.

  Look again at the four New Zealanders. The rapist was the man on the far left, Frank Masters. The others in the lineup committed simple property crimes: from left to right, John Powell (sentenced to two years in prison for killing a sheep in order to steal the carcass), Alick Evan McGregor (one month for larceny), and William Johnston, the tightrope walker (three months for larceny). Masters was a serial sex offender, having been convicted at least four times between 1885 and 1888 for indecency—more specifically, “indecent exposure in the presence of young girls.”

  Though all of those affected by Masters’s crime—the victim and her parents, the jurors, the judge, the surrounding community of Wellington—are long since dead, the rape of a child still unsettles us. What drove this man Masters? What was wrong with him? We burn to know, but there are few avenues to pursue.

  Even if we could trade places with the Crown Prosecutor back in December 1889, we still wouldn’t hav
e access to what Masters was thinking when he committed the crime. His real motives, his capacities, his impulses—they remain today as they were then: shrouded behind a bearded face, dark eyes, a bald head.

  At trial, Masters’s explanation for his terrible acts was one of compulsion, but the evidence before the judge and jury was difficult to parse. During his fourth trial for indecency, Masters had asserted “that he was not master of himself when he committed the offences, and knew nothing about them until he was arrested.” And at the suggestion of his lawyer, the Court ordered that Masters “be medically examined as to his sanity.” Nonetheless, Dr. Johnston, the Gaol Medical Officer, “found him to be…sane, but of filthy habits.”

  So, despite Masters’s pleas to the Court “to have steps taken to prevent him from doing such things again,” he was not long thereafter released, and promptly went out and raped a child.

  At his sentencing for that crime, Masters launched into “an extraordinary and wandering statement, speaking in lachrymose tones for upwards of 25 minutes,” according to the newspaper report. “He couldn’t help himself [he said], for he must be a lunatic—a thorough madman.” In addition to “suggesting that he should be ‘chained hand and foot’ in a lunatic asylum, [he] proposed a drastic remedy that would effectually prevent his repeating the crime.” He wanted to do good, “to get married and lead a proper life, and not go on in this way,” but there was something—his nature, his destiny—that brought trouble into his life again and again. The reporter who recounted the trial thought Masters was putting on a show: “That he was acting a part there could be little doubt.” But the judge was less sure: “Whether the prisoner was insane or not he could not tell.”

  In this context, it’s easy to see the appeal of tools, practices, and rules of thumb that promise to expose what is hidden: the true cause of behavior, proof of guilt, or a corrupted soul. The “trial by ordeal” described at the beginning of this book was just such a mechanism. It made interior evil manifest. A heretic might claim innocence, but submersion in water revealed the truth.

  Of course, we have not always needed elaborate rituals to unmask criminality. Indeed, for most of history, we’ve relied on nothing more than our own eyes. We all have intuitions about what criminal faces, postures, and behaviors look like. And we employ them every day, as we decide whether to count our change, how to respond if someone cuts in line, and when to cross the street as we walk home. As you gazed on the four accused New Zealanders, these unconscious associations were guiding your choice. We really do judge books by their covers—although it may be hard to articulate exactly what it is that we see and why it seems to point to criminality. “He just looks like a rapist,” we say, as if that explained everything.

  —

  The idea that a person’s facial traits offer a window into his character dates back to antiquity, but it was not until the nineteenth century that “physiognomy” was developed and organized to understand crime. To contemporaries, it felt like a moment of true revolution, a time to shed myths and backward practices. The message in the wind was that the world could be classified and explained, and that scientific and technological advances could be employed to improve society. Darwin, Edison, and Daguerre had shown the way. If the curve of a finch’s beak revealed its preference for a particular type of seed, why shouldn’t the slope of a man’s nose reveal his inner motives, good or bad? And if someone could design a machine to accurately compare noses, what was to stop society from creating a classification system for criminals? Eliminating crime seemed a real possibility.

  One of those swept up in the bluster of excitement was a professor at the University of Turin, Cesare Lombroso, who had previously been the director of the mental asylum in Pesaro. The Lombrosians were convinced that through a scientific approach, the origins of any criminal act could be identified. They were particularly interested in the possibility that those who committed crimes might be biologically different from the rest of the population.

  One of Lombroso’s epiphanies came during the autopsy of a notorious criminal, in which he was struck by how similar the anatomy of the head before him resembled a “savage” or “ape”: “At the sight of that skull, I seemed to see all of a sudden, lighted up as a vast plain under a flaming sky, the problem of the nature of the criminal—an atavistic being who reproduces in his person the ferocious instincts of primitive humanity and the inferior animals.” Here before him on the table was an explanation for the plague of crime. Those among us who seemed to have “an irresistible craving for evil for its own sake,” who sought to “extinguish life,” who were sexually depraved, or whose “excessive idleness” led to fraud and theft, were different in mind and body. They were “born criminals”—more like animals, for which these actions were normal. In order to identify those “degenerates” predisposed to engage in delinquent behavior, one had only to identify their bodily anomalies—“the stigmata,” in Lombroso’s words—that revealed a reversion back to a less evolved, animalistic state. It was not an entirely new notion—others had considered the connection between men and beasts centuries earlier (as the seventeenth-century woodcut on this page suggests), but Lombroso brought a rigor and focus to the endeavor. He and his followers set about carefully identifying and measuring various bodily features and proportions—from the existence of tattoos to the shape of the cranium—in an effort to map criminal degeneracy.

  Take out a mirror and you can begin to see yourself as the Lombrosians would have. Pointy head? Strong jaw? Pathetic beard? Receding brow? These were all on the list of criminal traits.

  Lombroso’s project was greatly facilitated by an array of new technologies. There were devices to record a person’s skull capacity and form; his blood pressure; his senses of touch, smell, and sight; his sensitivity to pain and temperature; and the way he spoke, among numerous other things. Perhaps my favorite invention is Louis Frigerio’s “otometer,” an instrument to measure the diameter of the ear and the angle at which it meets the head—the ear being, according to Frigerio, among the most critical of organs in signaling degeneracy. Frigerio claimed that criminals and the insane possessed large, flat ears that jutted out from the head, which made sense, he said, since these types of ears were also common in apes and other “inferior animals.”

  In the quest to record the physical state of the criminal for the purpose of objective comparison, no device was more promising than the camera. Although mug shots were initially used simply as a means of tracking criminals—with police departments assembling “rogues’ galleries” to help them spot known offenders—those interested in physiognomy had grander plans. One British innovator, Francis Galton, a cousin of Charles Darwin, developed an approach that involved taking various images of criminals and overlaying them in a single photograph. What does a hotel thief look like? Galton would take the pictures of six known hotel thieves and combine them into one archetype. Conceivably, a person could then identify a rogue destined to be a pickpocket before he had ever reached into an overcoat. A new dawn seemed upon the horizon: knowing the signs of criminality and its animalistic causes, one might reduce crime—or perhaps eliminate it altogether.

  But it was for naught. The work of Galton, Lombroso, and others turned out to be almost entirely incorrect. And far worse, their crackpot theories fed racist ideologies and were used to justify eugenic movements aimed at eradicating degeneracy by controlling who could have children.

  It seems we have come a long way from the calipered past: our soldiers opened the gates of Dachau, after all. We teach the forcible sterilizations of the first half of the twentieth century as a tragic failing. And we laugh at people who still believe it’s possible to divine a person’s nature from his body. Those, like Sylvester Stallone’s mother, Jackie, who offer such theories—Jackie being a preeminent “rumpologist”—end up fodder for standup bits.

  But much of our progress is an illusion. Having purged explicit, open physiognomy, we remain closet physiognomists, unaware that we are appr
aising a person based on the color of his skin, the thickness of his lips, or his uneven ears. That these assessments are implicit makes them all the more destructive. Working toward an objective and falsifiable system of classification, Lombroso and Galton put their claims into the public domain for inspection, testing, and appraisal. Our judgments, by contrast, are subjective and rarely scrutinized.

  Just as problematic, in considering why a person committed a crime, we tend to rely on a specious “mug shot” notion of criminality: we focus on a paper-thin, one-sided conception of the perpetrator, at the expense of the surrounding situation. As a general matter, we’re inclined to believe that a person’s actions reflect a freely made choice based on a set of stable character traits, preferences, and beliefs. And when we hear about some horrible event, like a murder, we immediately produce a metaphorical “mug shot” of the perpetrator: an evil person who chose to disregard our most vital social norms to serve his own desires. We tend not to pay much attention to the potential impact of other causal factors—like exposure to lead as a child or the pressures of being in a gang—unless they are utterly glaring (like someone forcing the perpetrator to act with a gun to his head). Normally, we stick with our simple “mug shot” account, which leads us to expect people’s behavior to be consistent across circumstances. Once a murderer, always a murderer.

  Sometimes that turns out to be right, but often it is not—and even when people act as we’d predict, it’s largely a coincidence. Our “mug shot” approach to explaining tragic events is skewed and unfair. By imagining most criminals as autonomous, rational actors deciding to pursue greedy, lustful, or hateful ends, we underestimate the significance of forces in the world around us and dynamics in our brains over which we have little control. Once again, we are paying attention to all the wrong things.