by Dax-Devlon Ross
Like many New Yorkers, I kept a fairly close eye on the “cuddling cops” trial. And, like most people I know, as information flowed from the courtroom I became more and more certain that the jury would convict the cops of rape. This isn’t to say I was being naïve. I remember Abner Louima. I remember Sean Bell. I’m perfectly aware that what’s reported to the evening news everyday isn’t a precise reflection of what’s going on inside the courtroom and certainly shouldn’t be relied upon as a determinant of guilt. Still, I was floored by the verdict.
I have to be blunt for a moment. At 18 a police-issued firearm was thrust at my throat. Five years later I was at a stop light in Harlem when a team of plain clothes cops jumped out of an unmarked van and ordered me out of my car. At 25 a team of baton-toting cops beat me in an alley in broad day light. I’ve never seen the cops as the good guys. Quite the opposite. Based on my experiences, not to mention those of friends and family, cops routinely abuse their authority. I figured this time they just happened to get caught with their hands in the cookie jar.
But part of my shock upon hearing the verdict also stems from the victim’s particulars: she was young, attractive and white. I know some of us squirm, sigh or groan whenever the subject of race is addressed but let’s, for once act like adults and hold our feet to the fire. At least some of the indignation and disbelief in response to the verdict is rooted in race. Yes, I know her identity is officially unknown to the public. But, again, I’m asking for honesty here. The moral indignation and public outcry that the verdict evoked – from “New York City cops can get away with anything” to “If you’re a woman in this city you don’t have a chance” – bore the unmistakable markings of a people unacquainted with the vagaries of the criminal justice system. What’s more, race is only part of the story when a situation involves non-whites. Otherwise it’s just a story. Consider the Dominique Strauss-Kahn scandal. The woman accusing him of rape is African. Ask me how I know? I have no clue; it’s in the ether, an ingredient in the salacious stew. Should it be part of the story? Of course not. Will it be nonetheless relevant? Of course. This isn’t the time or place to rehash the olden days, but suffice it to say the collective memory of antebellum America is steeped in images of white male sexual violence against African slaves, images that Strauss-Kahn attacking an African maid stir to the surface.
A Tale of Two Cases
After talking about the verdict with friends over the course of several days I found myself thinking about another New York City rape trial involving a young white woman—the infamous Central Park Jogger case. (Coincidentally, the story is back in the news with the recent publication of Sarah Burns’ new book, The Central Park Five: A Chronicle of a City Wilding.) Twenty-one years ago five teenage boys between the ages of 14 and 16 at the time of the crime were convicted of brutally raping and beating a woman later identified as Trisha Meili. On the surface (and even somewhat beneath) these two cases are strikingly distinct. But there are also some provocative parallels, chief among them the absence of physical evidence linking the assailants to the crime as well as the accuser’s diminished capacity at the time of the act. It was known from the outset of the trial that Meili had no recollection of the attack and could not identify her attackers; in the cuddling cops case the defense insisted that the accuser was too drunk to remember what happened to her. More or less, both trials boiled down to he said/she said. But while the jogger case jury convicted the five boys despite the absence of physical evidence (The principal evidence was video-taped confessions later determined inconsistent and given under coercive conditions), twenty years later the cuddling cop jury acquitted the officers because of the absence of physical evidence.
No physical evidence + shady memory = conviction
No physical evidence + shady memory = acquittal
The DNA Revolution
Since 1989 – the year Meili was attacked – DNA has been used to exonerate nearly 300 wrongfully convicted people. It has also been used to positively identify hundreds of criminals – including Matias Reyes, the actual Central Park rapist – who’d escaped prosecution for crimes they committed sometimes decades in the past. DNA profiling has been nothing short of revolutionary. Not only has it revealed the defects and breakdowns in the criminal justice system such as the extent to which false confessions, misidentification, and snitch testimony have colluded to convict innocent people, it has sparked significant reforms in interrogation rooms, court houses, and forensic labs. On the whole DNA has been arguably the most important innovation in the criminal justice process in the last two decades. But the thing about science is that it doesn’t arrive with moral preconditions. It just is. Strictly speaking, DNA testing was first used in England to capture a criminal. Only later did it evolve into an instrument of innocence. Frankly speaking, exoneration wasn’t its intended use. Conviction was.
Without question DNA has raised the reasonable-doubt bar. Even lay people – folks whose lives rarely intersect with the criminal justice system – have a heightened awareness of forensic science’s probative value. Thanks to the Law & Order franchise, Cold Case and a host of reality-based law enforcement shows, we’ve all come to fancy ourselves forensic experts. The problem arises when DNA – or in this case the lack thereof – becomes a substitute for sound decision making and a proxy for moral judgment.
The moment the D.A.’s office filed suit against the cops three years ago the defense quickly and loudly countered: the absence of DNA should put the clamps on the case. Without DNA, it argued, there was no proof of rape. Notice the sleight-of-hand skullduggery? In 1990 the absence of DNA linking the boys to the crime in the Central Park jogger case didn’t matter. The boys were convicted. In 2011 the cuddling cops put all of their eggs in the absence DNA basket. The difference is subtle but significant and here’s how: It’s one thing to scientifically eliminate or positively identify someone using forensics. Either the DNA does or doesn’t match the accused. There is no room for human interpretation and, therefore, error. It’s something altogether different to infer doubt based on the absence of DNA. In what was, in effect, a clever riff on Johnny Cochran’s memorable “If the glove doesn’t fit you must acquit” maneuver, the defense’s ‘No DNA, no rape’ campaign exploited 1) our tendency to grossly misconstrue the proper application of forensic science and 2) our over-confidence in our rational selves.
The Myth of Rational Decision Making
Following last week’s verdict, a pair of jurors came forward and offered insight into their decision. The accused’s testimony, “sounded like a construct from the prosecution,” said one. Another doubted Officer Moreno’s confession. “He wasn’t trying to confess anything. He was trying to get away from her outside his precinct. She was trying to attack him.” All of the statements offered by the jurors share a common thread: they’re rationalizations.
We know now that human beings are not as rational as we once thought. Brain imaging studies have shown that when Democratic and Republican voters are confronted with inconsistencies in both their candidate and the opposing party’s candidate they consistently 1) hold steadfast to their party allegiances and 2) judge their opponent’s transgressions more harshly than the candidate from their party. In his book, How We Decide, Jonah Lehrer describes the researchers’ fMRI observations of the voters’ brain data:
…[T]he voters weren’t using their reasoning faculties to analyze the facts; they were using reason to preserve their partisan certainty. And then, once the subjects had arrived at favorable interpretations of the evidence, blithely excusing the contradictions of their chosen candidate, they activated the internal reward circuits in their brains and experienced a rush of pleasurable emotion.
It doesn’t end there. Neuroscience has also discovered that when we are confronted with moral questions our emotional brain kicks in first and our rational brain only shows up on the scene after the fact to reason through our instantaneous feelings.
Why does this pose a big problem to a system that relies on a jury as triers of fact?
Well, in the grand scheme of things our legal system justifies its authority on the principle that the human brain is guided by cold reason not hot emotion, which just isn’t true.
With respect to the case against the cuddling cops, the degree to which the jury felt she was morally culpable may very well have guided their decision to acquit the cops of rape.
There’s a reason courts have specific rules regarding the admissibility of an accuser’s prior sexual history: rape trials are ripe for judgments of moral character. Left unchecked, they can easily devolve into interrogations of the accuser’s behavior. Herein lies the key distinction between the Central Park jogger and cuddling cops accuser that, to my mind, molded the outcome. Meile was out jogging when she was attacked. Was it smart? Probably not. Did it warrant her being raped and beaten? No. Was it immoral? Definitely not. The cuddling cop accuser was out drinking. Was it smart? Probably not. Did it warrant being raped and beaten? No. Was it immoral? Depends on who you ask.
Our criminal justice process is littered with human-error land mines that have to be disarmed one by one. Not until the early 1990s did science start to challenge the commonly held belief that the human brain was fully developed by age 12. Only then did brain imaging definitively reveal what parents and teachers had long sensed: the dumb decisions teens make aren’t just the result of raging hormones; the human brain – in particular, the prefrontal cortex where decisions are made – isn’t fully developed until age 25. But even as the scientific community was making these incredible breakthroughs, the law of the land was still permitting the execution of juvenile offenders on the basis of the old framework. The word had to spread. Americans had to buy in. The Supreme Court had to lay the groundwork for an “evolving standards of decency” doctrine to challenge the constitutionality of the juvenile death penalty. In all, integrating the science into the court room took more than a decade.
Fixing a Broken System
If nothing else, last week’s decision should demonstrate to us all that the jury system should be next in line to have its head examined. Before I conclude, consider Justice Thurgood Marshal’s assertion about the need for diverse juries forty years ago:
When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.
In the mid ’80s – more than a decade after Justice Marshall’s admonition – The Dallas Morning News published an expose revealing that in the previous year 90% of eligible and willing black jurors had been barred from serving by prosecutors. It also found that blacks accounted for only 4% of felony jurors over an eight month period and that blacks had a 1 in 10 chance (compared to 1-2 for whites) of serving on a jury. Not surprisingly, Dallas County has more wrongful conviction exonerations on its books than any other county in the nation: 21 since 2001.
In 2007 a Tufts study on juries confirmed what Justice Marshall already knew. According to the study diverse juries deliberated longer, cited more case-relevant facts during deliberation, made fewer factual mistakes, and were more likely to correct inaccurate statements than the all-white juries were. The study also found that white jurors in diverse groups mentioned more facts, made fewer factual errors, corrected more mistakes and raised the possibility of racism more often than did white jurors in homogeneous groups. In short, juries are frighteningly impressionable.
Diversity is just the beginning. If we expect our jury system to maintain a measure of legitimacy and to work as intended, then we have to implement the science that’s revealing how the brain really decides. The process of deciding human fate is too delicate to remain vulnerable to cognitive biases based on moral predispositions, too complex to remain susceptible to unscrupulous lawyering, and too important to get it wrong as often as we do.