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  • Joshua Holland

Why Does Our Justice System Fight So Hard to Keep Innocent People Behind Bars?

In the criminal-justice system romanticized by Hollywood films, those convicted of crimes are generally guilty. And a protagonist need only prove that someone’s been wrongly imprisoned to get them freed by a judiciary that values truth and justice. The scrappy investigative reporter, jaded detective, or overmatched defense attorney comes up with the key piece of evidence that proves beyond doubt that someone has been wrongly convicted, and in the next scene that person walks out of the courthouse to be surrounded by joyful loved ones and supporters as the credits roll.

The real world is often quite different. Since it was established in 1992, the Innocence Project has succeeded in reversing the convictions of over 200 people, but the group says that a “staggering number of innocent people” remain behind bars today.

Perhaps even more troubling is that even when clear, indisputable evidence emerges showing that someone has been imprisoned for a crime they didn’t commit, prosecutors, police, and judges will often fight tooth and nail to keep them incarcerated.

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In his new book, Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions, University of Cincinnati legal scholar Mark Godsey examines why that happens. Godsey was a former prosecutor who would later go on to co-found the Ohio Innocence Project, a chapter of the national organization. The book, which is in part a confessional, looks at how innocent people can become the victims of faulty eyewitness testimony, bad forensics, and a variety of blinding cognitive biases on the part of law-enforcement personnel, prosecutors, and judges, and why the system so tenaciously defends the status quo, even when it’s guilty of railroading innocent citizens.

With so much attention rightly focused on racial injustice in recent years, Godsey’s book offers another important piece of the puzzle. You can listen to my 25-minute discussion with Godsey in the player above, or read a transcript that’s been edited for length and clarity below.

Joshua Holland: You were an accomplished prosecutor in New York—a prosecutor’s prosecutor, as you write in the book. You believed in the system. And at first, you were skeptical about the Innocence Project. Tell us a little bit about how you came to be an advocate for reform.

Mark Godsey: It was by accident. I was very proud of my job and loved being a prosecutor. I went into academia to become a law professor, and the first school where I got a job had an Innocence Project. When I arrived, they said, “The professor who runs it is on sabbatical this year. Since you’ve got a criminal-law background, you’re going to have to supervise it.’ I really couldn’t say no—I was untenured, I was the new guy on the block. But I remember thinking, “You’ve got to be kidding me. There are no innocent people in prison.” That was my view.


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I went to the first meeting and the law students were talking about this guy they just visited in prison named Herman May, and they were totally convinced he was innocent. I remember sitting there, just doing internal eye rolls and thinking, “What a bunch of bleeding-heart nonsense.” But then DNA testing ended up proving that he was innocent and he was released. It was a huge eye-opener for me. It made me realize that my assumptions perhaps had been wrong—I’d been a little bit too cocky about the criminal-justice system that I’d been a part of.

So I went through a conversion in that one year, and then the very next year, I founded the Ohio Innocence Project. And we’ve now freed 25 Ohioans, who together served 471 years in prison for crimes they didn’t commit.

JH: Twenty-five people who had served over 470 years—that works out to just under 20 years, on average.

MG: Our longest was Ricky Jackson, who served almost 40 years for a murder he didn’t commit. You’d think you’d be totally broken and a mess after going into prison at 18 years old and getting out when you’re basically 58, but he’s an incredibly inspiring person. These exonerees are often really inspirational people that make you realize that when you get upset about traffic or stupid things, there’s a lot more important things in life that we’re taking for granted.


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JH: Your book reveals how hostile police, prosecutors, and judges often are towards efforts to absolve those who have been wrongly convicted, even when there’s solid evidence. You detail how even simple requests for records are ignored or treated as some sort of effort to undermine the credibility of the courts.

Yet, as you write, these officials who appear from the outside to be operating with an abundance of bad faith and dishonesty see themselves as the good guys and gals, and believe themselves to be doing the right thing. How do you square that circle?

MG: The first thing that shocked me when I started doing post-conviction innocence work is when we had several cases with DNA evidence, and it was absolutely clear the person was innocent. I saw these prosecutors just going into denial and spinning all these ridiculous theories about how the person might still be guilty. They almost make you laugh. My first reaction was, “Are these people kidding? Are they serious?” I’m in court thinking, “Is this Candid Camera?”

That’s how ridiculous these theories could be. And I realized that the Innocence Movement is really pointing out some flaws at the basic core of the criminal-justice system, and those in the system are really in denial about it. I think I was too, as a prosecutor. So I started studying the psychology behind it and seeing how, when you’re in a bureaucracy that’s cocky and has been around for centuries, and you become a part of it as a prosecutor, and you believe that it’s something where the whole is greater than the sum of the parts, and then somebody comes along and says there are all these flaws in it, it’s very hard to accept.

When you’ve been a prosecutor or a police officer for 10 years, you become conditioned to just think, “My job is to fight this claim. I’m not supposed to admit that a mistake has been made,” and you just do it robotically without even thinking about it.

I have a grip on that as a former prosecutor, because I had that mentality as well. Really, you just tend to write off these people who are challenging the system as these outsiders who have these crazy theories, and there must be some catch somewhere. People in these roles become very close-minded to any claims of innocence. That’s one of the things we’ve got to change.

In the private sector, there are incentives for being open-minded and for playing devil’s advocate. In the justice system, we’re often missing that devil’s advocacy. And then complacency and arrogance just sort of set in. That’s one of the things that the book tries to challenge.

JH: You talk about this idea of “administrative evil.” You explain that when they’re part of a bureaucracy that affirms their actions, individuals do things that they would not necessarily do outside of that system. Can you talk a little bit more about that?

MG: Administrative evil is a psychological concept that came out after the Holocaust when people started trying to explain how ordinary Germans could have participated in this genocide. The theory is that when people are part of large bureaucracies like the criminal-justice system, and everyone is sort of moving in lockstep, in unison, and they’re following certain policies, they can do things that cause great injustice. Things that are really unfair, like fight to keep an innocent person in prison. When you work in a bureaucracy like that, the values of the bureaucracy—and the steps you’re supposed to take to function within it—replace your internal moral compass. I knew this as a prosecutor, where you get conditioned to just follow what you’re supposed to do. If you really could step out of that role, somebody might be able to just sort of shake you out of that bureaucratic mindset and say, “Step back from this a minute. Look at why you went to law school. Look what you’re actually doing to this person.”

When you’ve been in that system—when you’ve been a prosecutor for 10 years or you’ve been a police officer for 20 years—you become conditioned to just think, “My job is to fight this claim. I’m not supposed to admit that a mistake has been made,” and you just do it robotically without even thinking about it. I give many examples of prosecutors who have done that, and how I did that as a prosecutor.


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JH: One of your clients, Nancy Smith, was quite obviously innocent. If she had had a robust offense, would she have ended up in prison in the first place?

MG: Absolutely not. In the early ’90s, there was a 60 Minutes episode that featured a daycare center where parents allege that their 3-year-olds had been molested, and they all ended up suing the daycare center. After that 60 Minutes episode aired, there were these copycat claims at daycare centers all across the country, and they all had something in common, or many of them did, which is that they were daycare centers with deep pockets, and all these families got millions of dollars in settlements. We now know that in most of these cases, the charges were trumped up and the parents got these little kids to say things that weren’t true.

Nancy Smith’s case was one of those. She was a bus driver for Head Start, so she would go on a bus route and she would pick up these little kids—3- and 4-year-olds—take them to daycare, and then at the end of the day she’d pick them up and take them home. She went to another job in the middle of the day when the kids were in school. One of the parents got several of the parents whipped up on a particular day in question, and said that Nancy didn’t take their kids to school but instead took them to her boyfriend’s house where they allegedly abused the children all day.

What’s amazing about this is that Nancy had a bus aide—because you can’t just have a bus driver with a bunch of 3- and 4-year-olds. The kids will go nuts. You have to have somebody in the back keeping them calm. The bus aide was ready to testify [that no crime had been committed], but that never happened. In addition to that, all the kids actually were marked present at school that day. And then on top of all that, Nancy went to this other job between dropping the kids off in the morning and coming back to pick them up at the end of the day, and the records show that she was at work that day. So there was conclusive proof from multiple sources that this never happened, but the defense attorney did no work whatsoever to bring these facts forward.

The testimony of the children was ridiculous—they changed their story so many times, it was clear to any objective person that they had been coached by their parents. Her defense attorney just thought that there was no way that the prosecutors were going to get a conviction in this case, but then she ended up having to serve 15 years in prison before all this came out and she was ultimately freed.

JH: You write that a key piece in all of this is the dehumanization that’s inherent in the job of locking people up. Prosecutors and judges have to see the accused as cases rather than individuals. You detail in the book how prosecutors and judges can appear to be completely immune to the hardships that people who have been unjustly convicted of a crime suffer, often for years on end. How did this manifest in Nancy Smith’s case?

MG: Nancy Smith was exonerated and freed, but the prosecution refused to admit that a mistake had been made. They kept appealing it, and they eventually got her exoneration overturned. And not because she wasn’t innocent. It also wasn’t because the court thought she was guilty. They kept her locked up because of a jurisdictional issue—the Ohio Supreme Court ultimately said that the trial court didn’t have jurisdiction to exonerate her, which meant she had to go back to prison until we could fix it. So she’d have to sit in prison while we relitigated the case, which could take forever.

She agreed to take a plea deal so she wouldn’t have to go back to prison. It was just an absolutely gut-wrenching decision for her. She didn’t know if she was making the right decision. She was basically on the verge of vomiting through this entire court proceeding. The day that it happened, the courtroom was just full of cameras. The judge came out in his robe for this proceeding, and looked at all the cameras and just started laughing, and said, “Hey. If I’d known there were going to be cameras here today, I would’ve gotten myself a haircut.” Then he just kept cracking jokes and hamming it up for the cameras.

It just dawned on me that this guy was completely oblivious to the human suffering in the room. It was just another day at work for him because he’s been caught up in this bureaucratic mindset. You sort of lose your humanity when you’ve been involved in the criminal-justice system for so long. It was like sitting there watching a doctor tell somebody they have six weeks to live, but cracking jokes while they’re doing it.

In the criminal justice, we don’t have the right training, we don’t have the right mindset to fight these bureaucratic effects of dehumanization, administrative evil, and things like that, so it happens more than it needs to.

JH: In the book, you offer insights into the psychology and the incentives that lead prosecutors, judges, and the police to falsely convict people, and resist efforts to free the innocent, but you don’t discuss how racial discrimination or implicit bias plays out in these injustices. That’s obviously very prominent in the news these days with Black Lives Matters movement, etc. What role does race play?

MG: Obviously, racism is a huge problem in the criminal-justice system, and it’s a huge part of wrongful convictions. But what I focus on is things like confirmation bias, malleable memory—things that don’t get as much attention. If I were to address racism, it would end up swallowing the entire book, because it’s such a pervasive problem. It’s also addressed elsewhere in other books, and I’m trying to highlight things that aren’t regularly discussed.

If you tell people up front it’s a book about racism, everybody thinks they’re not a racist, so they just sort of check out, and think, “Okay, this doesn’t apply to me.” But if you disarm them on that, then you can get them to learn about confirmation bias and tunnel vision and all these psychological flaws that we all have.

So it’s subtly about racism, but I think that the points I make about the other psychological flaws aren’t getting enough attention, and I think they are very important and need to be addressed.

JH: You mentioned these laughable theories that prosecutors tend to offer to counter your claims. I know this is a form of gallows humor, but what is an “unindicted co-ejaculator”?

MG: It’s sort of a joke in the Innocence Movement. It’s a play on the phrase “unindicted co-conspirator,” which is a common phrase in American court rooms. Basically, you’ll have a client who was convicted of rape and has been in prison for 20 years. You look at the trial transcript, and the victim at trial said, “This guy raped me. I wasn’t sexually active,” and they collect semen at the hospital, so there’s a rape kit that has the semen of the perpetrator.

The victim’s testimony at trial 20 years ago is very clear that there was one person who raped her, broke into her house, or whatever the terrible facts of the case may be, and so 20 years later, the Innocence Project does DNA testing and proves that the guy is innocent. Instead of accepting the truth, many times the police and prosecutors will come back and they’ll say, “So the DNA—the semen that was collected after the rape—doesn’t match the guy in prison. Clearly, there must have been two rapists. Clearly, the victim was mistaken. Two guys broke into her house. We’re getting the DNA results of the other person. We don’t know who it is, but your client must have raped her too. He just didn’t ejaculate.” So no matter what the evidence is, they spin it and come up with these theories in order to justify keeping the person in prison. You see it time and time again.

JH: One would think that the kinds of psychological and sociological biases you discuss in the book would be less prominent in the world of forensics because this is a scientific field. Many people assume that forensic science follows the scientific method, people publish independently reviewed studies on forensic techniques, there are professional conferences, etc. But you show that that’s not necessarily the case.

MG: On television shows like CSI, forensics are portrayed as miracles of modern science. But the reality is so far from that. In 2009, the National Academy of Sciences, which is an independent agency, came out with a scathing report showing how bad the state of forensics is in this country. We need a complete overhaul. All kinds of wrongful convictions are caused by faulty forensic testimony. Some techniques that are frankly junk science are being used to convict people, and have been for decades.

I can go on forever about this—there are all kinds of examples. And we’ve recently discovered how confirmation bias plays a big role in faulty forensic analyses. A psychologist conducted these amazing studies. He went to leading fingerprint experts and he said, “We have a case where a fingerprint expert years ago testified that the defendant’s fingerprint was found at the crime scene, but we now know the person is innocent, he wasn’t at the crime scene. Can you look at the fingerprint from the crime scene and the defendant’s fingerprint from that case and tell us where the fingerprint expert went wrong?” What each expert didn’t know is that he had actually gone into their own case files and had pulled a fingerprint that that expert had called a match in court years before and caused a person to get convicted. So they’re looking at one of their own findings that they called a match, but now they’re being told this is from a case where a mistake was made. He got 80 percent of them to flip their answer and conclude that the prints didn’t match. He’s since replicated this study in different fields of forensic science. It shows how the human mind works to see what it expects to see. When you’re told an answer beforehand, your mind is set up to actually only look for evidence that confirms what you solidly believe the answer will be, and your mind won’t even register conflicting information. As a prosecutor, you’re often told by the police, “Hey, we know this guy did it. We know the fingerprint is going to match. We know the bullet is going to come from his gun. Just confirm it for us.” The mind operates differently when it’s doing that kind of analysis than it would if you were to set up a blinded or more neutral question.

Despite the fact that we know this—and despite the fact that the National Academy of Sciences came out and said that we’ve got to start doing this differently, we can’t tell forensic scientists what the right answer is before they start—nothing has changed.

JH: Powerful as it is, psychology alone doesn’t explain all of the dynamics that you discuss in this book. Having been on both sides of the courtroom, can you talk a little bit about the incentives that would encourage people to deny what is sometimes very plain evidence of innocence?

MG: I was a federal prosecutor in New York City. Federal prosecutors and judges are appointed by the president. They don’t have to run for reelection. They don’t have to get the endorsement of local law enforcement. When I came back to Ohio, and started doing innocence work, I was absolutely shocked at how the [state] judges [who are elected] just seemed to be politically aligned with the prosecution. The judges would simply line up with the prosecution and ignore plain evidence of innocence. I detail in the book how the imperatives of electoral politics cause prosecutors to always want to look tough on crime, and they end up being conditioned to look tough on crime all the time instead of being reasonable in some cases.

It’s the same with judges. The person that judges want to get to endorse them and appear on commercials with them come re-election time is the prosecutor. This is common in the 38 states where we have elections. So if a judge does something that’s going to really upset the prosecution, a prosecutor may run somebody against that judge or endorse his or her opponent. It creates this dynamic where the system isn’t neutral and fair like many people expect it to be. Instead there’s a sense that one needs to get to the right result.

JH: There is some research which shows that elected judges tend to be more punitive—“tougher on crime,” as they say—than appointed judges.

MG: Particularly in election years. The system is politically stacked against the defense and in favor of the prosecution. I think anybody who’s gone through what I’ve gone through would understand the need to move away from the election process because one of the reasons the founders set up the federal system so that judges are appointed is that we need at least one of the branches of government to be insulated from the political process.

JH: Let’s talk a little bit about how you think some of these issues could be addressed with some simple reforms.

MG: Some reforms are fairly simple. There should be screening mechanisms set up for the forensic sciences so that the experts are truly using the scientific method, they’re doing it in a vacuum and they don’t know what the right answer is before they start. That’s a fairly inexpensive reform that can be done tomorrow.

I have a whole chapter on memory malleability and how the way line-ups are done—the way they show photos to witnesses and things like that—taint the outcomes. There are very simple steps that can be taken to change the eyewitness identification process and interrogation process to cut down on false confessions. This is not groundbreaking stuff.

Other things, like changing the system so that judges and prosecutors are not elected anymore, would be much more difficult. That may take generations or decades of yelling and screaming in order to get people to realize how important that it. Maybe that’ll never happen, but with some of the leading causes of wrongful convictions, there are fairly inexpensive steps that can be done to minimize the error rate. One of the frustrating things about this is that so little has been done


JH: That plays back into the basic thesis of your piece of your book, which is that the system is ultimately set up to protect the system, and the actors within it have every reason to play along. Mark, I want to thank you so much for taking the time to speak with me. I really do appreciate it.

MG: Thanks for having me.

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