Unfair

by Adam Benforado

  There were other critical materials that the prosecution team (including Eric Dubelier, who was partnered with Williams on the murder case) had failed to pass along to the defense. Thompson’s attorneys might have seriously undermined the testimony of Richard Perkins, the man who first provided the police with Thompson’s name, if they had been able to show that he lied under oath when he said that he had no knowledge of reward money before coming forward, but the prosecution did not pass along the audiotapes of Perkins’s discussion of the cash prize with the victim’s family. Likewise, the defense team might have shown the inconsistencies between the testimony of the prosecution’s key witness, Kevin Freeman, and what Freeman purportedly told Perkins about the murder, but the defense team never received the police report containing Perkins’s recollections. And, critically, Thompson’s attorneys were never able to point out the discrepancy between the eyewitness’s initial description of the murderer’s “close cut hair” and Thompson’s Afro, because they were never given the relevant police reports.

  All of this suggests a culture of dishonesty—and indeed there is now significant evidence of prosecutorial misconduct within the D.A.’s office over a period of years. As Justice Ginsburg put it, “Disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.” District Attorney Connick himself had been indicted for withholding a crime-lab report in a different case, and several other convictions had been overturned by Louisiana judges based on prosecutors’ failing to disclose Brady material while Connick was in charge.

  As the tragedy of the New Orleans prosecutor’s office shows, dishonesty can spread like a plague when given the right conditions. We take cues from those around us in deciding which behavior is acceptable and which is not—and when the norm is to bend the rules, it will be hard for most people to resist. On a broader scale, the negative stereotype of lawyers as cutthroat, manipulative, and amoral may actually cause unethical behavior, because it suggests pervasive and egregious dishonesty in the profession. Everyone else is doing it, so why not me?

  Clearly, we take cues for our moral actions from those around us. But we also take cues from our own past behavior. This explains, in part, how we can start with a very minor act of dishonesty and gradually shift to more serious transgressions over time. Should I cheat on this math test or not? Well, I copied my algebra homework from my friend last night and this is pretty much the same thing, so it really isn’t going to make a difference in how I feel about myself. Take a few steps down the path of dishonesty and you may soon find yourself miles away from the person you thought you were.

  It is not just that small infractions often lead to bigger ones; scientists have also shown that greater dishonesty can be induced by simply altering a person’s moral self-view. In one of my favorite experiments, researchers had participants take a test while wearing sunglasses that they were told were either genuine designer models or counterfeits. You might expect that the fake shades would make no difference at all, but in fact the percentage of people cheating more than doubled in the counterfeit condition. According to the researchers, the participants wearing the counterfeit glasses suddenly saw themselves in a new light: with the badge of dishonesty on their face, it was easier to cheat. And they also viewed their peers differently, predicting a significantly higher rate of cheating than did the people wearing “authentic” sunglasses.

  It is easy to see how the slippery slope might affect a prosecutor. Initially, a colleague or superior might pressure him to bend a minor ethical rule (say, deliberately failing to mention a relevant case in an evidentiary motion because it undermines a key argument). Awareness of that transgression may then lead him to adopt a more lenient moral standard. After the initial breach of ethics, acting a bit more dishonestly (say, failing to provide the defense with a witness’s description of the perpetrator that only partially matches the defendant’s features) would not have a major impact on the prosecutor’s overall sense of self-worth. Making matters worse, the research predicts that the more the prosecutor cheats, the more he is likely to believe that others—his colleagues and his opponents on the defense team—are also cheating, further promoting his dishonest actions. It’s a dangerous cascade, especially when lives are at stake.

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  As improbable as it sounds, one of the most effective ways to rationalize our ethical lapses involves reframing our bad actions as good—a means of restoring order or serving justice. A wrong committed to remedy a wrong can become a right. Indeed, research suggests that a major driver of dishonest behavior is a desire to even the scales.

  In one experiment, scientists looked at what would happen when a customer was treated rudely by a coffee shop employee and then given back more change than he or she deserved by the same employee. What they found was that people who were mistreated kept the money at a much higher rate than those who had not been mistreated. Customers on the receiving end of rudeness seemed to have been given a great excuse to justify keeping the shop’s money.

  It is likely that lawyers who feel that the other side has been given an unfair advantage by a judge (for instance, after a motion has been denied or evidence has been kept from a jury), or who believe that attorneys across the aisle are using underhanded tactics, are more inclined to engage in dishonest acts. The chip on your shoulder can be both a motivation and a justification for bending the rules in your favor. And that’s true even where the perceived imbalance does not come from anything that the opposing attorneys or the judge has done. For a prosecutor, the chip may simply be a feeling that she is at a disadvantage because she has to work particularly long, grueling hours at lower pay than lawyers in the private sector or has an unreasonable boss or didn’t go to a fancy law school. We might also imagine a new attorney feeling that she is a step or two behind other prosecutors in the office and concluding that she just needs to cheat a little bit until she catches up. Deegan was the least experienced of anyone on the prosecution team—he’d been with the district attorney’s office for less than a year when he was assigned to the Thompson case.

  Along similar lines, one way to convince ourselves of the righteousness of our actions is to disparage the person we’re lying to or cheating. If we are hurting someone who is himself in moral disrepute, our actions suddenly become more justifiable. And it’s particularly easy to see ourselves as serving moral ends when the victim has already been arrested and charged with a crime.

  Deegan could readily cast himself in the role of a defender of justice. There was a very real possibility that if Thompson’s blood had not matched the sample taken from the victim of the carjacking, Thompson would not have been convicted of the robbery, and without that conviction he might have been able to dodge the murder charge altogether. If you firmly believed he was guilty of brutally killing Raymond T. Liuzza Jr., it might seem quite acceptable to break the rules to ensure that Thompson got what he deserved. Moreover, there is a sense among those who work on the side of the government that most criminal defendants have already gotten away with numerous crimes in addition to the ones they are charged with. If you speak with prosecutors candidly, you will be surprised at how many, when pressed on a time they bent the rules a bit, will offer up the same excuse: “Well, even if he wasn’t guilty of this crime, he was guilty of something.”

  So, in many cases, it may be the impulse to do right—to act altruistically—that causes us to cut corners. In a startling finding, scientists have shown that people may actually cheat more when their cheating benefits others but not themselves. If we are acting solely for others, it is hard to see ourselves in a negative light and much easier to rationalize unethical acts. People who work for nonprofit foundations, schools, or other public benefit organizations may be relatively more inclined to bend the rules because the charge of enhancing social welfare seems to justify the dishonest behavior.

  If this theory is correct, both prosecutors and public defenders might well be particularly vulnerable to rationalizations of this kind. In a sense, a
prosecutor who does not bend the rules is letting many people down: the victim’s family, the police officers who worked the case, his fellow prosecutors, and society as a whole (including future victims who would otherwise be protected). He may also be letting down all of the people who expect him to excel in his career—his partner, his children, his parents, his friends. Ironically, then, it is caring deeply about other people, not a callous lack of empathy, that can set in motion some acts of dishonesty.

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  It’s clear that rationalizing dishonesty is part of human nature. Still, some people are more honest than others. How can we tell which individuals are more likely to cheat?

  Some of the personal characteristics that scientists have identified might be expected. Guilt-prone people, for example, are less likely to commit ethical transgressions. Other discoveries are more novel.

  Sparked by intriguing findings that pathological liars have considerably more white matter (the cells that transmit signals between different areas of the brain) in their prefrontal cortex than the rest of the population, and knowing that white-matter structures have been shown to be associated with creativity, researchers decided to look at whether differences in creativity across the population might influence levels of cheating. Their hypothesis was that people who were more creative would find it easier to come up with convincing stories to justify unethical behavior. Sure enough, in their experiments, the most creative participants were also the most dishonest. Moreover, the researchers found that they could increase cheating across the board by priming people to get them into a creative mindset. Interestingly, general intelligence doesn’t appear to be relevant; it’s specifically creative capacity that matters.

  All of this would lead one to expect that the more creative lawyers would be more likely to engage in dishonest behavior, but—perhaps more crucially—it also raises the possibility that lawyers may be particularly susceptible as a group. Much of what lawyers are trained to do, of course, is to come up with justifications, reasons, and arguments for various actions or events. They are in the business of creating plausible stories that help advance their position. One might even say that creativity, above all else, is what separates successful from unsuccessful lawyers. It is unsettling to think that a prosecutor’s ability to knit together a compelling narrative that ties a defendant to a crime might also allow him to come up with a convincing story to justify breaching the defendant’s rights.

  And with frequently vague ethical rules and considerable room for discretion, lawyers often find themselves operating in zones of ambiguity, where creativity tends to have the biggest impact on dishonesty. Almost all of the most common acts of prosecutorial misconduct can be recast. Are you suppressing potentially exonerating evidence or keeping an immaterial report from confusing the jury? Are you making an improper closing argument or being a zealous advocate? Are you badgering and manipulating a witness or ensuring that the truth is revealed through rigorous cross-examination? Are you encouraging erroneous testimony or providing an opportunity for the jury to hear all sides?

  Lawyers may be especially good at rationalizing their dishonest acts, but they’re also put in situations that make the behavior particularly tempting. It made a difference that Deegan could simply check out the blood swatch from the police property room. It also mattered that the blood test report was sent to the prosecutor’s office, which could then fail to turn it over to the defense. That took literally no effort at all. We should worry, then, about the enormous control that prosecutors have over the state’s evidence and witnesses: they are the ones who decide if and when the defendant’s team will receive the ballistics report or the DNA report or a copy of the witness statement or the initial police write-up. Give even the most upstanding fox the keys to the henhouse and see what happens.

  In addition, research suggests that we are particularly likely to act dishonestly when we’ve already used up our reserve of self-control. According to some psychologists, willpower is a limited resource, and, unfortunately, lawyers often work under conditions that seriously deplete their store. A prosecutor faces the same challenges as the rest of us: trying to stick to his New Year’s resolution and go running before work, attempting to control his emotions in the face of an unreasonable boss, fighting to pay attention during a boring conference call, struggling not to lose his temper with a rebellious teenage son. But he may face other stresses as well. Up against tight deadlines, an assistant D.A. frequently has to stay on top of multiple cases at the same time, which means juggling court opinions, statutes, facts, and other details. Moreover, he must work to satisfy the needs and desires of multiple constituencies whose interests may conflict. Figuring out how to please the victim’s family, the public, the judge, and his boss, all while trying to achieve justice and fend off attacks from the other side, inevitably leads to major mental fatigue—and, far too often, dishonesty.

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  Given the likely frequency of prosecutorial misconduct, it seems strange that it is so rarely investigated or disciplined. The main reason is that it’s hard to detect. Many of the cases over the last two decades were brought to our attention only when a DNA exoneration prompted an examination of how an innocent person had come to be convicted. Concealing evidence, one of the most common kinds of misconduct, is particularly hard to spot, because the defendant has no way of knowing what’s being kept from him. And all too often attorneys do not even recognize that they have done anything wrong. Deegan eventually came to regret his decision, but in some cases, even when our immoral actions are front and center, we are able to delude ourselves into believing that the benefits of our dishonesty were rightfully earned. In one set of experiments, people who cheated on a test by using an answer key and received a high score tended to interpret that score as evidence of their high intelligence! It seems likely that prosecutors who use dishonest means to gain an edge and end up winning will later ascribe their success to their hard work, skill, and wisdom. Winning effectively wipes the slate clean.

  Most of the dishonesty in our legal system, then, is going to remain invisible. But that doesn’t mean there’s nothing to be done. Our moral flexibility is a two-way street: while cheating can be contagious, the people around us can also promote doing the right thing. We need to tap into the positive effect we can have on one another by changing how government lawyers see their role. Research suggests that the more prosecutors are focused on winning, rather than on achieving justice, the more likely they will be to act dishonestly. Unfortunately, they receive many subtle (and not-so-subtle) cues that what really matters is their scorecard. In one notorious example, prosecutors in Cook County, Illinois, participated in what was known as the Two-Ton Contest, with the prize going to the first attorney to convict defendants whose combined weight exceeded four thousand pounds. But leadership within a prosecutor’s office can turn things around by introducing robust ethical norms and ensuring appropriate monitoring.

  Growing experimental evidence suggests that knowing that we are being watched can help us behave in the right way. Indeed, contrary to the Supreme Court majority’s belief that Connick’s supervisory shortcomings were not to blame for Thompson’s wrongful conviction, there is good reason to think that effective oversight in the D.A.’s office might have prevented the injustice Thompson suffered. Had Gerry Deegan been working in an office that took Brady seriously, with colleagues keeping an eye out for ethical breaches, he might very well have decided to pass along the critical blood evidence to Thompson’s attorneys.

  We know such a cultural shift is possible because it’s happening now. In 2006, Dallas County District Attorney Craig Watkins created a new unit to address wrongful convictions by having a team on the prosecution side reexamine cases in which the defendant’s guilt was in question. Watkins argued that prosecutors have a major interest in pursuing claims of innocence—not only because that can lead to catching the real perpetrators, but also because prosecutors have a responsibility to clean up their mistakes. The initi
ative has been extremely successful, helping to exonerate thirty-three people since it began. Its accomplishments have prompted the creation of similar programs in Cook County; Wayne, Minnesota; Brooklyn; and Santa Clara, California. The message to government attorneys in these jurisdictions is powerful: ensuring the integrity of the criminal justice process is at the core of the prosecution’s role, and there are smart, diligent people checking your work.

  Establishing new mechanisms of supervision and redefining attorney roles requires a significant commitment to change. But there are smaller measures all offices can take to encourage honesty. In the laboratory, even subtle moral cues have been shown to help. For instance, asking individuals to sign an honor code—or just try to write down as many of the Ten Commandments as they can remember—can greatly reduce or even eliminate cheating on a test. More astonishing, the benefits of these ethical reminders persist even when individuals do a poor job of actually recalling the Commandments and when the honor code is completely made up. MIT, for instance, doesn’t have an honor code, but researchers found that it didn’t matter: they could effectively quash cheating by having students sign a fake one (“I understand that this experiment falls under the guidelines of the MIT honor code”).

  This research suggests that we ought to install moral reminders for lawyers that help interrupt the process of rationalization and self-justification that occurs in moments of temptation. One idea might be to have prosecutors recite an oath—or write down what they believe their particular moral or ethical responsibilities to be—prior to the proceedings each day of trial. Likewise, to encourage attorneys to turn over exculpatory evidence to the defense team, we could ask prosecutors not only to sign a statement promising that they had complied with their Brady duties, but also to articulate in a few sentences why refusing to turn over such material is immoral. As scientists have discovered, the key is making the reminders a regular part of the process without having them become so routine that they’re invisible.