March 28, 2007
Recent articles on prosecutorial tunnel vision
I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision. Here are two articles discussing this idea:
Abstract: The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.
Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.
Abstract: This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision. Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited. The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system. Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.
January 28, 2007
Information on Ted Kaczynski and Ohio DP law
To give you a focus for examining modern death penalty statutes, the reading packet encourages thinking about how Ted Kaczynski might be prosecuted under the death penalty statutes in Texas and Florida. Though not in the text, you should also consider how Ted might fare under Ohio's death penalty statute. (Ignore for this exercise that these states would not likely have jurisdiction.)
For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski. That entry has (too) many great links, though I would especially encourage checking out this short article entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted's brother). Also worth a read is this 1999 article from Time magazine by Stephen Dubner.
UPDATE: Life is all about timing, and apparently ours is good. As we look back at the Unabomber's crimes and punishment in class, Ted Kaczynski writings are making new headlines. From this article in the Yale Daily News:
Fourteen years after opening a package bomb sent by the Unabomber, Yale computer science professor David Gelernter ’76 still feels pain every day, and more may soon be coming.
After nine years in prison, Ted Kaczynski has returned to both the headlines and the courtroom as he challenges a government plan to auction off his expansive writings to raise restitution for his victims. But as Kaczynski fights the auction on First Amendment grounds, some of his victims, including Gelernter, have raised concerns about the possibility that Kaczynski's musings about bombmaking could wind up the focus of a morbid bidding frenzy — and open up old wounds at the same time.
January 21, 2007
Important series on capital representation
Any lawyer or law student interested in the death penalty should be attentive to the realities of representation issues in capital cases. And that means every lawyer or law student interested in the death penalty must read Stephen Henderson's fantastic series of related articles about the poor quality of capital defense assembled here under the heading "No Defense: Shortcut to Death Row." The lead piece is available here and is entitled "Indefensible? Lawyers in key death penalty states often fall short."