Book Review: Blind Injustice

As one of the millions of people who binged Netflix’s 2015 docu-series, Making a Murderer, but who came into it already primed to rage due to my ideological leanings, “Balkoanization,” (reading Radley Balko in The Washington Post) and skepticism of police greatly enhanced by Ferguson the year prior and other incidents, I’m one of the “choir” Mark Godsey is speaking to in his 2017 book, Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions. I mention Making a Murder in that litany because Godsey references the docu-series quite a bit to highlight some of those psychological issues at work, and because he recommends pairing his book with the docu-series if you’re creating a curriculum about wrongful convictions (what a great class that would be!). Even though I’m one of the choir — that is, for the most part a.) I am aware of everything mentioned in this book, even if I’m not always aware of their precise technical terms, including the psychological issues; and b.) I am someone who believes strongly in what the Innocence Project and its state affiliates do, that the death penalty is unjust and immoral (among other issues), and that myriad problems plague the criminal justice system demanding widespread reform; aka I’m one of the flock when it comes to the “innocence movement,” as Godsey calls it — Godsey’s book is still worth reading for a comprehensive and organized examination of the flaws pervasive in the system, why reform has been like “battling a glacier” (one of the images a student of his evoked), and importantly, from the outset, Godsey states that his book isn’t a doom book; he offers solutions that have already been implemented in some states, could continue to be implemented in still more, and other solutions worth considering and adopting. In addition to that, Godsey’s perspective, as indicated by the subtitle, is genuinely compelling: He’s living proof that someone clouded by the very forces he’s elucidating, can come through to the other side, and start making a difference. Plus, it’s neat that Godsey is the co-founder of the Ohio Innocence Project, and in particular, works and lives in my city of Cincinnati.

The main thesis, if I can cobble it all together into one, of Godsey’s book is that prosecutors, police officers, judges, forensic scientists, witnesses, jurors, and criminal defense attorneys, broadly speaking, are not “evil.” They ae good people who genuinely think they are doing the right thing within the criminal justice system they operate in, and have often dedicated their entire lives to. In other words, basic human failings, not direct evilness, undergird all of the aforementioned professions, which informs the (mistaken) actions taken in the criminal justice system leading to wrongful convictions, and then fighting the exonerations of those wrongfully convicted. When you’ve created you entire self-image around being a good person and someone fighting for justice, as Godsey says, it’s difficult to confront the fact that you were not just wrong, but that your wrongness kept an innocent person locked up for a crime he or she didn’t commit, often for decades. The psychological name for this tension is cognitive dissonance, and that leads prosecutors, police and judges to resist change and to fight exonerations.

From this thesis, flows a number of other psychological issues Godsey highlights, such as administrative evil (it is well-documented in psychology and sociology how much group dynamics, such as a large bureaucracy (a prosecutor’s office, a police department, and the overall criminal justice system itself), can lead to going along with the group and dislodging that from you own personal morality, if necessary), dehumanization (seeing people accused of crimes as monsters, the “bad guy,” and even always referring to them as “the suspect” or “the defendant”), confirmatory bias (which I have to be self-aware is something that could be capturing me while reading this book!), issues with our memory of events we either directly experienced or only witnessed, and thinking humans are highly proficient “human lie detectors.” Spoilers: We’re not, at all. Human beings, even those supposedly trained up and with decades of experience, such as police officers, are barely better than mere chance (flipping a coin), if that, at ascertaining whether someone is lying or not. Body language is related to that issue, and so much of the nonsense in actual trials and what you see in our media (true crime media and otherwise) is based on nothing more than body language interpretation (voice falls into this, like trying to interpret the voice patterns of someone calling 9-1-1). In that way, body language interpretation is its own form of junk science.

Other forms of junk science highlighted in the book (and I’m probably forgetting some) include: hair sample analysis, handwriting sample analysis, fingerprint analysis (yes), shoe print analysis, tire tread analysis, bullet analysis, blood splatter analysis, bite mark analysis, and gunshot residue analysis (yes).

My parenthetical “yeses” might be a surprise to even those who have paid attention to the field, but there are abundant issues within those “sciences,” too.

Basically, the only truly independent, duplicatable science within forensics is DNA-matching, and that isn’t as ironclad as people think, either, but at least it’s actual science.

Additional areas of concern in the criminal justice system: Drug tests, eyewitness testimony (the leading cause of wrongful convictions), ]=false confessions (coerced and ones where police get the person to think they’ve truly committed the crime), and tunnel vision by police and prosecutors. Juries also have issues, of course, whether assuming a white coat forensic expert must, well, be an expert, or assuming if prosecutors brought a case to trial, then the person must be guilty, or the body language issue, or a myriad other issues that “contaminate” juries actually arriving at anything approaching the truth and justice.

Godsey also goes over the various pressure points, psychological and political, that affect all of the aforementioned professions. I think the most interesting one Godsey addresses is the issue of judges and prosecutors at the state and county level being elected to their positions. To be re-elected, judges need to appear “tough-on-crime” and they often seek the endorsement of prosecutors, which makes that an obvious conflict of interest. I would argue, however, that the issue there goes back to the elephant in the room problem inhibiting criminal justice reform more broadly: Us! The American public. Judges wouldn’t have to campaign on being “tough-on-crime” and Democrats, Godsey assesses, wouldn’t have to over-compensate to appear tough-on-crime, if the American public didn’t want that. But they do. Such campaigning works for a reason. Obviously, not everywhere, as there have been successful criminal justice reform-minded prosecutors and judges elected throughout the United States. But it’s not easy (and they often face strong opposition from police unions, which is another issue).

Finally, one of the broader problems Godsey addresses at the end of the novel, which is music to my choir ears, is that the incentive model is all wrong. Unlike in the private market, there is no feedback mechanism that forces police, prosecutors, judges, and criminal defense attorneys to correct for their mistakes, and be “rewarded” for correcting those mistakes. In fact, the incentives all run in the opposite direction.

But again, this isn’t a doomsday book. Godsey’s basic few solutions include:

• Eyewitness identification: Officers doing a photo line-up should employ the double-blind, sequential method to ensure they aren’t consciously or unconsciously influencing the witness (making it double-blind makes it more scientific and sound!).
• Interrogations: Interrogations should always be videotaped from beginning to end, and those tasked with training officers should rethink their method of interrogation in the first place.
• Jailhouse snitches (ugh): A few places have tightly controlled this issue by having a committee vet the “snitches,” which weeds out a lot of the problematic noise.
• Forensics: Blinding (just like with witness identification) to erase confirmation bias, such as removing forensic agencies from the control of law enforcement and the prosecutor’s office, aka ending that cozy relationship with wrong incentives; and we need to ensure more forensic disciplines are actually sound sciences.
• Defense attorneys: Leveling the playing field, so the criminal defense attorneys can adequately defend their clients.
• Police and prosecutors: Both professions should receive better training on the dangers of tunnel vision.
• Elections of judges and prosecutors: Immunizing both from the pressures of partisan elections, where both would be appointed by bipartisan commissions.
• Conviction Integrity Units, or CIUs: I see this as one of the most promising on the list. These CIUs have been set up in various prosecutor’s offices in the United States, and if they have the proper buy-in, they are actually exonerating more innocent people than even the best state chapter of the Innocence Project can ever hope to. That’s telling.

I would also add, incentivized by all of the psychological and political issues Godsey mentions, we have a pervasive issue in the United States where the vast majority of cases don’t even reach trial in the first place. Prosecutors wield far too much power and discretion in that area. This would partly be fixed by Godsey’s suggestion of leveling the playing field between defense attorneys and prosecutors; if a defense attorney could actually put forth a proper defense, then prosecutors lose their fear factor leading to guilty pleas, to some extent. Some have argued with abolishing plea bargaining altogether. I haven’t read much into reforms in that area, but my confirmation bias brain likes the sound of it.

Overall, if you are someone who considers yourself a true crime junkie, but anything I’ve said seems foreign to you, you owe it to yourself and your junkie obsession, to educate yourself via Godsey’s book. Same if you’re not true crime obsessed and have even less of an understanding of how the criminal justice system actually operates. And for the already-converted like me, it’s always helpful to have a handy resource like Godsey’s book and crucially, to be reminded of the real-world cases throughout his book because the innocent people are who we are fighting for.