States of Exception

Published on The Nation (http://www.thenation.com)

 

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The Real Injustice at the Heart of the Trayvon Martin Case

| April 18, 2012

At first there was near-unanimity of outrage and dismay. But in recent weeks, the polls reveal that Americans’ attitudes about the killing of Trayvon Martin have become starkly divided by race and party politics: eight in ten blacks say Martin’s killing was not justified, compared with just 38 percent of whites. Meanwhile, 56 percent of Republicans believe that there has been “too much coverage” in the media, as opposed to 25 percent of Democrats. There are plenty of theories to explain this shift, but surely one driver is that we seem to have stopped talking about the case itself and unconsciously substituted for it our usual litany of social anxieties.

It’s curious that so many discussions take an inevitable turn that is prefaced by: “Why aren’t we talking about…” The list of what we supposedly aren’t talking about is long and predictably partisan: gun culture in America; racially disparate rates of arrest and incarceration; “race card” playing; media as circus; statistics about “black-on-black crime”; school shootings as exemplary of “white-on-white” crime; “reverse racism”; high- and low-tech lynchings; Prohibition-era gangsters versus drug-prohibition-era “gangstas”; hoodies as exuding a nefarious life of their own; profiled presumptions-of-guilt as trumping constitutional presumptions-of-innocence; the propriety of shadowy organizations like ALEC crafting, funding and proselytizing for Stand Your Ground laws nationwide; whether Hispanics are white; and whether President Obama’s putative son does or does not look like Newt Gingrich’s putative son. These may be worthy issues, but they have drifted our focus away from how specific facts about the Martin case intersect with the specific peculiarities of Florida law. Given that George Zimmerman now faces trial, now is a good time to remind ourselves what this case is actually about.

Here’s the relevant text of Florida Statutes Chapter 776: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: …He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” Any person who does have such reasonable apprehension is “immune from criminal prosecution and civil action.” However, this immunity is not available to one who “initially provokes the use of force against himself or herself.”

Thus framed, the issues are relatively simple: Was Zimmerman’s belief that his life was in danger a reasonable one? Was his admitted pursuit of Martin “necessary to defend himself”? And did his admitted initiation of the encounter provoke use of force by Martin? These are questions of fact, now properly before a court of law.

What makes the case exceptional is neither race nor the politics of self-defense alone but rather the complete failure to prosecute—or even investigate—before now. Among the many flaws of Stand Your Ground, the standard of reasonable belief is not a warrant for total subjectivity. “Reasonableness” is an objective measure in the law; it refers to a public or community standard, not a privatized state of mind. The reason this case attracted such attention in the first place was the shocking complacency of the Sanford Police Department as enforcers of that standard.

Police failed to follow the most basic procedures for a homicide investigation: Zimmerman was never tested for drugs or alcohol, while Martin’s body was. After sticking him in the morgue, there was no attempt to identify Martin or to notify his family. This was not just sloppy and unprofessional; it flouted basic tenets of our jurisprudence. The police’s facile conclusion that there was nothing to contradict Zimmerman’s account is explicable only on one of two grounds: either they blindly deferred to the word of the confessed killer and thus abandoned any adherence to a community standard; or they instinctively shared Zimmerman’s vision, establishing being frightened to death by a young black man as a reasonable community norm.

Another strange feature of the current debate is the frequent assertion that because there were no witnesses to the shooting, there is “no evidence.” In fact, there is plenty: forensic reports about signs of struggle, the fact that Martin was unarmed, Zimmerman’s 911 call detailing intent to pursue Martin despite police exhortation not to, Martin’s phone conversation with a schoolmate, the voiceprint analysis of cries for help and, of course, Zimmerman’s catalog of at least forty-six prior calls to 911 to report a panoply of misplaced suspicions directed at unidentified others. The fact that this is “circumstantial evidence” does not render it a lesser kind of proof. Most crimes don’t come outfitted with cameras focused on the crime scene, after all, particularly homicides. Nearly all convictions are won by pointing to the irrefutable logic of a picture drawn from largely circumstantial bits and pieces of evidence.

Finally, there are those—particularly our friends at Fox News—who conflate the call for justice with a call to convict. This is a fundamental misapplication of civics. It’s worth repeating: what’s distressing about Martin’s death is that it took so long for his killer’s actions to be interrogated at all. Political philosopher Giorgio Agamben has observed that what distinguishes a state of exception is “not the chaos that precedes order but rather the situation that results from its suspension.” When law enforcement officers accept—without question—an admitted killer’s assertion that a homicide was justified because “he scared me,” they license open season. Without question.

Eyes of The Beholden….

Published in The Nation (http://www.thenation.com)
Our Dangerous Devotion to Eyewitness Testimony

Patricia J. Williams | January 18, 2012

 
“We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”

How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.

Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”

The costs of this phenomenon are perhaps best revealed in data compiled by the Innocence Project, which has concluded that out of 281 postconviction exonerations secured through DNA in the United States, eyewitness misidentification “was a factor in 75 percent…making it the leading cause of these wrongful convictions.” Luckily, there are substantiated ways to guard against such error. Experts have cited two main types of variables that can adversely affect eyewitness identification: “estimator variables,” the hardest to control for, which include things like the degree of lighting, distance or speed within a given crime scene, as well as the level of trauma to the witness; and “system variables,” defined as “those that the criminal justice system can and should control,” which include law enforcement tools like lineups and photo arrays. A number of reforms involving the latter have the proven capacity to boost the accuracy of witness IDs. These include “blind administration,” where an officer conducting a lineup is not aware of who the suspect is (and thus not capable of revealing his or her identity via gestures, vocal inflections or body language); “non-suggestive” lineups, made up of people who generally resemble a witness’s description, so that the suspect does not stand out; allowing witnesses to sign a statement indicating their level of confidence in their choice; and presenting members of a lineup sequentially rather than simultaneously (to mitigate the pressure to choose any kind of close-looking one when we are presented with a bunch of faces at once). Such remedial safeguards have so reduced the error rate—and so indisputably—that a number of local jurisdictions and eleven states thus far have adopted some or all of them as standard operating procedure.

It would seem logical, then, to implement these reforms universally, and for courts to screen eyewitness evidence for those basics of procedural reliability before such testimony is heard by a jury. But on January 11, in Perry v. New Hampshire, the Supreme Court rejected that notion, ruling that such a pretrial inquiry is not a requirement of due process “when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” This is subtle language: it’s not the same as what we think of as police corruption, as in overt suppression of evidence. Rather, it relates to the kinds of situations at stake in Perry: Was the suspect the only black man in a lineup? Was he handcuffed and flanked by police? Was his image shown in photo array after photo array until he began to look familiar? If the chief investigator was the one administering a lineup, was his belief in the suspect’s guilt communicated to the witness via subtle coaching? All such factors may be highly suggestive, triggering the irrelevant associations and false memories that can lead to inaccurate results.

Perry does two unfortunate things. It undercuts pretrial examination of virtually all “estimator variables,” no matter how problematic, since those are less likely to directly involve police. And by drawing the line at “unnecessarily suggestive” actions by state actors, the ruling sets a very high bar for challenging eyewitness evidence, ignoring the hefty empirical proof that misidentification is a pervasive fact of life. Justice Sonia Sotomayor, the lone dissenter in Perry, wrote that this ruling invites arbitrary results by making “police arrangement” the “inflexible step zero.” The concerns of due process ought to be based on the actual likelihood of misidentification, said Sotomayor, “not predicated on the source of suggestiveness.” Reiterating that any preventable misidentification is a miscarriage of justice—not merely where the police are setting the stage—she underscored the Innocence Project’s concern that inaccurate eyewitness testimony is the leading cause of wrongful convictions in US courts. DNA has exonerated eight misidentified inmates on death row. If we have at our disposal simple reforms that have been proven to guard against such tragic mistakes, why on earth should we not implement them universally?

Source URL: http://www.thenation.com/article/165725/our-dangerous-devotion-eyewitness-testimony

Reality Wars

Slouching Towards Faux

Patricia J. Williams | July 13, 2011

Shortly after Dominique Strauss-Kahn was indicted on charges of attempted rape, his friend Bernard-Henri Lévy wrote a defense of him that, among other wrongheaded assertions, denounced the American justice system as one where “anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.” What Lévy actually described is a presumption of guilt, not the American presumption of innocence. In the United States, the prosecutor—whose responsibility extends not merely to the accuser but to the general interests of justice—has the burden of proof. The accused doesn’t have to prove or disprove anything; indeed, the accused doesn’t have to say a word, as per our Fifth Amendment.

Lévy’s offhand remark came closer to describing the global media than our courts. Journalistic values like accuracy, accountability and respect for human dignity have fallen by the wayside as entertainment and titillation have prevailed. The inescapable rush to judgment that pours forth in hi-def in seemingly every public space—from elevators to taxicabs to airports to bank lobbies—is a kind of civic poison.

It’s because of the media that we find our democratic processes foundering in increasingly debased public discussion: Strauss-Kahn’s accuser is driven to suing the New York Post for its unsubstantiated claims that she is a prostitute. Pundits mock the very principled prosecutor, Cyrus Vance Jr., as a sucker for having dutifully and appropriately revealed potentially exculpatory information. Radio jocks spend hours dumping on those who believe the accuser’s history of lying has anything to do with Strauss-Kahn’s “obvious” guilt. When HLN opinionator Nancy Grace’s howling impersonation of blind Fury wins her more respect than the deliberation of an actual jury, as in the Casey Anthony murder trial, we worry for the safety of judges, defendants, accusers and jurors. We forget that the case against Anthony was circumstantial; as much as she lied to law enforcement—a crime for which she has been convicted—her child’s body was so decomposed there was no way to prove either how she died or who did it.

We are swimming in a gloop of scuttlebutt and tittle-tattle, driven by “unnamed sources” who always represent themselves as “close to the investigation” yet who speak only “on condition of anonymity.” Those deceptively anodyne descriptors have moved us down an ethical spectrum from transparent reporting to stories that are “underwritten,” bribed, extorted or outright lies.

Consider, for example, the insidious model of Rupert Murdoch’s media empire. Fox News Channel is a subsidiary of the Fox Entertainment Group, which in turn is a subsidiary of Murdoch’s conglomerate News Corporation. It’s a perfect circle, a consciously structured looping between news and entertainment, a business model premised on positing the amorality of “anything goes” as the civic equivalent of “freedom of the press.”

In Britain, Murdoch’s devouring influence is finally being challenged with revelations that his employees compromised a murder investigation by hacking into the voicemail of the victim and erasing her last messages; tapped the phones of politicians with whom Murdoch took issue; and paid police officers and government officials “in the six figures” for information about ongoing investigations. It is perhaps only in America that any enterprise of Murdoch’s labeled “fair and balanced” is still received as anything but laughable. We know, too, that paying for information has become broad practice among American tabloids like the Post; but we seem inured to the concern that tabloid sensibility is not just unreliable but corrupting.

The Anglo-American justice system constructs criminal cases as singular—as particular to named individuals and specifically delineated indictments. Social narratives, norms and values can never be entirely absent, but the system attempts to regulate their influence through mechanisms like the rules of evidence (barring rumor and unsubstantiated opinion) and standards of proof (like “reasonable person” and “reasonable doubt”). To keep from destroying reputations unnecessarily, we adhere to a presumption of innocence. Police are supposed to keep certain aspects of investigations closed until there is at least “probable cause.” Similarly, both sides screen and filter evidence for probity. In some cases, judges have the discretion to sequester juries from outside or inflammatory input. And we trust lawyers, prosecutors and judges to keep confidences as a matter of professional ethics.

But none of these structural buffers can operate as they should if a Murdoch-like empire runs the world, carelessly spitting out the home addresses of those it wishes to skewer, hacking into the phones of unlucky witnesses, pursuing stories into sealed records, private homes and bathroom stalls. Our democracy depends on a free press to discuss the issues of the day without interference from government. What that noble ideal does not account for is the existence of media monopolies able to exercise national and international control over civic spaces—even to the degree that their power vies with that of governments. Their careless, nonempirical, even fictionalized narratives invade privacy, ruin careers, mythologize racial stereotypes, exploit class divisions, exacerbate ideological discord, unleash mobs, wreak vengeance, assemble armies and annihilate the common good.

Today’s media chatter is beholden not to truth but rather to profit, fear and fantasy. What becomes of the duty to listen that is at the heart of free expression? What becomes of the shared mulling of ideas that allows us to think of one another as equals who exist in society with one another? What becomes of the measured thought exchange that is the essence of due process?

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Source URL: http://www.thenation.com/article/162003/slouching-towards-faux

Hidden Assets

The Hidden Cost of DNA Banking

Diary of a Mad Law Professor

by PATRICIA J. WILLIAMS

This article appeared in the April 12, 2010 edition of The Nation.

March 25, 2010

In March 2009, Lily Haskell was arrested while attending an antiwar demonstration. Within hours she was released. Although she was not charged with any crime, her arrest alone was sufficient for her to be required to submit a DNA sample. The ACLU of Northern California filed a lawsuit on her behalf, challenging the constitutionality of the statute mandating police to retrieve and retain DNA from anyone arrested for a felony. As Michael Risher, Haskell’s attorney, asserted, the statute subjects innocent Californians to “a lifetime of genetic surveillance” with no judicial oversight, simply because they might have wandered into the field of suspicion of a single police officer.

The collection of DNA has mushroomed in the past five years. California has the third-largest forensic DNA database of any government entity in the world (behind Britain and the US government). All three collect DNA from arrestees regardless of guilt. All three have databases highly skewed by race and class. In Britain 42 percent of black men have had their DNA sampled and stored. Until recently, however, forensic DNA samples were retained only from convicted felons who had committed violent or sexual offenses. With very little oversight or consistency, local rules for collection in criminal cases have expanded haphazardly, often including anyone who is arrested even mistakenly. People may challenge the retention of their DNA and sue to have it expunged, but that process can take years.On March 6 of this year President Obama appeared on America’s Most Wanted to announce support for taking DNA from all arrestees, for banking that data and for keeping it without restriction even if there is no subsequent conviction. Undoubtedly it would have been much more controversial if he’d advocated DNA collection for all citizens, but his proposal seems to have slipped under the radar when framed as “only” for arrestees. By this metric “innocence” becomes a matter of degree, with certain people less innocent than others, marked by suspicion, kept on file, looked at first, disproportionately subject to the vicissitudes of laboratory and storage error. And even if mistakes are rare, it is exceedingly hard to persuade anyone of that if you are tossed in with a category the public deems inherently suspicious.

Obama and John Walsh, the host of America’s Most Wanted, endorsed the patently false idea that DNA is no different from fingerprinting. DNA samples can potentially reveal data about all kinds of other aspects of the self, including probabilities for certain health conditions, and can potentially implicate close family members. Employers and insurance companies are already hungering for DNA analysis that may allow them to refuse jobs or coverage to those with the mere hint of genetic predisposition to certain medical conditions (never mind pre-existing conditions).

In addition to the invasion of privacy, we must also weigh the possibility of technical mistakes. As a report from the National Research Council observes, “There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories.” That measure of human error is never conveyed in narratives touting the perfect infallibility of DNA evidence.

Furthermore, while DNA has been vaunted as a revolutionary tool of exoneration–in ruling out suspects, in other words–it is much less precise as a mechanism of positive identification when dealing with “cold hits,” that is, attempting to match DNA fragments from a crime scene against samples stored in massive databases. Bioethicist Erin Murphy clarifies the point by comparing DNA typing to blood typing: “Imagine a murder scene at which police find a blood sample certain to belong to the killer. Crime scene technicians…show that it is type O. Later, the police find and draw blood from two suspects. One suspect is type AB; the other is type O. We can, with unreserved confidence, say that the first suspect is not the killer; but regarding the second suspect, we can only say that she is included within the class of people that includes the killer. The probability that she is the actual killer turns on how many other people have that blood type, along with any other evidence that we might be able to adduce.”

Finally, we risk sacrificing the American credo of free will: that we endeavor and achieve even when such accomplishment may be against otherwise calculated odds. DNA, for example, is being collected privately from those who submit samples for genetic ancestry tracking or from young professionals who pay thousands to outfits like 23andMe in exchange for overly deterministic pronouncements about “the gene for” this or that. This collection and storage of DNA by private means is thoroughly unregulated. The Genetic Information Nondiscrimination Act of 2008 prohibits insurers and employers from using genetic prediction in hiring or coverage, but the act is easy to circumvent. For example, every time we dispose of a coffee cup or a hangnail, that “garbage” is open to the exploitation of others, including police. Few who contract with genetic ancestry tracking or “personalized medicine” companies realize that their profit is derived both from consumers and from reselling their samples out the back door, in supposedly “anonymized” form, to research institutions and insurance companies. “Anonymized” means that names, addresses, Social Security numbers and birth dates are kept confidential. But less than 1 percent of the information that the human genome contains has been reliably decoded. The day is surely not far away when names and Social Security numbers will be quaintly unnecessary in pinpointing identity.

We are at the very beginning of a scientific revolution that will no doubt profoundly unsettle certain notions of privacy and bodily integrity. The rampant, unreflective “bio-prospecting” occurring in public law-enforcement agencies and at private-sector data-mining companies should give us pause.

Juvenile Injustice

 

Absolutely No Excuse

Diary of a Mad Law Professor

by PATRICIA J. WILLIAMS

This article appeared in the December 7, 2009 edition of The Nation.

November 18, 2009

 

 

 

On November 9 the Supreme Court heard arguments in Graham v. Florida and Sullivan v. Florida, a pair of cases asking whether the Eighth Amendment’s proscription against cruel and unusual punishment is violated by sentencing juveniles to life imprisonment with no possibility of parole. No other nation has sentenced juveniles to life. But in the United States there are approximately 2,500 lifers charged while under 18. Of those, 109 are children who committed offenses that did not involve murder;  all of them are kids of color—84 percent black.  Seventy-three of those chilren were 14 or younger when they committed their crimes.  And seventy-seven of those 109 were sentenced in Florida.

One of the named plaintiffs is Joe Sullivan, who was 13 when he was convicted of sexual battery. Terrance Graham, the other named plaintiff, was convicted of robbery when he was 16. He was released on parole, and then given life for a parole violation when he was 17. Sullivan and Graham are imprisoned in Florida, where according to Bill McCollum, the state’s attorney general, there has been a push to crack down hard on youth crime because, after a string of attacks on foreign tourists in the 1990s, the “problem was…threatening the state’s bedrock tourism industry.”

While the definition of “cruel and unusual” is the thrust of what the Court must decide, the racial and geographic makeup of this particular population of juvenile lifers is quite remarkable. Toss in the State of Florida’s conflation of crime and commercial interest, and it adds up to a very large, very cruel and most unusual elephant in the room. But the legal debate has not and will not openly acknowledge race as a factor. Rather, the Court is deeply divided along ideologically colorblind lines, which nonetheless have philosophical underpinnings that allow such inequities to remain uninterrogated.

At the heart of any criminal case is the determination of a defendant’s intentionality, which depends on some consideration of state of mind, or mens rea. There are two ways of expressing the query. On the one hand, we could ask if the act was intentional in a narrow sense: was the crime physically performed by the named defendant without radical chemical imbalances or physical coercion? This way of thinking places great emphasis on the act itself. On the other hand, we could frame the question in such a way that foregrounds the actor and his motives, an approach that requires more examination of the defendant and his thinking about consequences–that is, about meaning, relation, capacity.

Most of us recognize that there is a difference between (a) meaning to put one’s car into reverse; and (b) meaning to put the car into reverse while carelessly failing to check carefully behind it; and (c) meaning to put the car into reverse with the specific purpose of running over one’s cheating spouse. Situations (b) and (c) more or less illustrate the difference between first-degree murder and manslaughter. What the Eighth Amendment was crafted to patrol is punishment based on the bare schematic set out in situation (a)–where there is no possibility of mercy, no adjustment for intended outcome, no consideration of the state of mind of the actor, no tempering based on circumstance. Yet that, unfortunately, has been the direction toward which much of our law-and-order jurisprudence has been moving in recent years: not just trying juveniles as adults but also determinate sentencing in all categories. This is a move toward harsher and more fundamentalist outcomes. It relies on a philosophical equation, ancient as Parmenides, of morality as a pre-existing absolute. It is the reasoning behind such terminology as “the bad seed” or “born bad” or “beyond redemption.”

But that is not the standard by which the Anglo-American justice system operates–at least not since the days when we burned witches. The thought of reducing all guilt or innocence, all probation or prison into a soulless system of automation has been thought of as unjust for at least two centuries. To convict or sentence or execute someone based on resolutely mechanistic determinants is the very definition of unconscionable. Indeed, a system based on the word of the law alone doesn’t really need judges.

Juveniles have always presented a stronger case for mitigation because they are, well, juveniles. We make exceptions for them based on their immaturity, as both a biological and psychological presumption. We know that the prefrontal cortex, which governs executive function, does not fully develop until the early 20s. We know that juveniles are impulsive and are not sufficiently forward-thinking to calculate all the consequences of their behavior. As a legal matter, we take for granted that minors may not drink alcohol, get an unrestricted driver’s license or make a binding contract.

But in an extremely mechanistic view of humans as innately good or evil, social circumstance–including age–means nothing. In the cases now before the Supreme Court, the Eighth Amendment challenge to that way of thinking must also involve conscious consideration of who it is we categorically value as “innately good,” for their heinous acts will not define them ultimately, and who it is we are disposed to see as innately bad, for they will burn in hell. It is manifestly barbarous that children, who by definition are immature and unformed, should be tossed away for life, with no chance for rehabilitation or recognition of the possibility of change. And it is manifestly barbarous that there is such enormous disparity in the racial composition of these particular child defendants. It is barbarous that they are–particularly and glaringly in Florida–consistently and disproportionately deemed so incorrigible as to be throwaways, forever. In a civilized society, we must be able to see the difference between “making excuses” for deadly or criminal behavior and taking such factors as extreme youth into account as a mitigating factor for those who are still becoming legal agents.

post-race takes a pummeling….

 

 

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Having Barack Obama as president doesn’t make America colour-blind

The arrest of an African-American professor and the vilification of a Latina woman judge show that prejudice lives on in the USA

• , Sunday 26 July 2009

During a major policy speech on healthcare, even President Obama found time to weigh in: “… I think it’s fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And number three – what I think we know separate and apart from this incident – is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately…” Needless to say, the next morning’s papers talked about Obama calling Cambridge police “stupid”.

The arrest of Harvard professor Henry Louis Gates has been officially swallowed by the larger narrative of race in America. Now I love a good racial escapade as much as the next person, but this one strikes me as uniquely unfortunate both in its timing and its capacity for becoming a flashpoint for unrelated resentments.

The facts not in dispute are straightforward. Gates came home from a trip and found his front door jammed. With the help of his driver, he tried to push the door open, unsuccessfully. He then went to the back door, opened it with his key, turned off the alarm system and called Harvard’s property management company to report the sticky door. Meanwhile, a passerby called the police to report that “two black males” were breaking into a house. When the police arrived, they encountered Gates in his living room. Gates provided his driving licence and his Harvard ID.

Here the stories diverge. Gates says he asked the officer to identify himself and the officer refused. The officer says that Gates was unco-operative, called him a racist and began shouting so loudly – “Your momma!” and: “You don’t know who you’re messing with!” according to the police report – that the noise constituted “tumultuous behaviour” and “public disorder”. Gates was handcuffed and hauled off to jail for a few hours. A day later, a judge dismissed the charges, saying both sides had acted badly. Gates demanded that the arresting officer apologise; the officer demanded that Gates apologise. The Cambridge police department demanded that President Obama apologise, which he did, quite eloquently as usual. Gates took to national television to set the record straight. Al Sharpton announced his intention to march in protest. And Michael Jackson, pushed from the front pages for a hot minute, was finally able to rest in peace.

Most unfortunate, but as American crime blotters go, this one is no big deal. Yes, racial profiling is an endemic, massive problem, but in this instance the police were called because of at least minimally suspicious behaviour – two men trying to force open a door. And yes, (allegedly) shouting angry taunts at the police isn’t tea-time politesse, but it does seem that the officer might have responded to it in a more professional manner than elevating it to the level of public “tumult”.

What makes this case so interesting – and alarming – is the vitriolic public commentary that ensued. Early newspaper and on-line accounts helped seed confusion, varying wildly: some gave the impression that Gates was trying to break into a house not his own, some that he refused to identify himself or that he resisted arrest. None of that was true.

But the larger backlash has quickly moved from the individual incident itself to condemnations in the stereotyped plural, concentrating on a very tight set of recurring themes: Gates is “uppity”, arrogant, pseudo-educated. He should have been grateful that the police came to his house at all. Harvard was stupid for hiring him. African-American studies, the department Gates chairs, is a non-subject, only on the curriculum to keep black students from rioting. The Ivy League is run by politically correct “wusses” who don’t have the courage to get rid of “undeserving” “whiners”. Who could blame police officers for refusing to come to black homes or neighbourhoods if this is what they get? “Those people” have jobs a “more qualified” white person should be holding.

(Where, oh where, our fleeting “post-racial” moment of Kumbaya?)

I mentioned that timing was also a probable factor in this brouhaha. The entire week before Gates’s arrest was consumed with reports of the congressional hearings for Obama’s Supreme Court nominee, Judge Sonia Sotomayor. She would be the first Hispanic and only the third woman sitting in our highest court. Hence, racial resentment had already been simmering on the shock-jock media burners. Three ultra-conservative senators in particular grilled her, day after day, using some of the most prejudiced, stereotype-laden language we’ve heard publicly in many a year. Despite the fact that Sotomayor graduated at the top of her class from Princeton and Yale Law School, she has been attacked as not qualified, chosen not for merit but because she’s a woman or Latina. Pundits such as Pat Buchanan railed that “affirmative action is to increase diversity by discriminating against white males”. Furthermore, said Buchanan, there could be nothing wrong with a court of all white men, because, after all “white men were 100% of the people who wrote the constitution, 100% of the people who signed the Declaration of Independence, 100% of the people who died at Gettysburg and Vicksburg…”

Then, too, controversy erupted over a statement Sotomayor made years ago, in which she hoped her life experience as a Latina woman would lend her wisdom in ways that might allow her easier insights into situations that others might not have lived through. This, the so-called “wise Latina woman” statement, has got her relentlessly labelled a “reverse racist” by the shock-jocky press.

Finally, Judge Sotomayor was part of a panel of judges that ruled, based on established precedent, that a hiring test given by the New Haven fire department should be scrutinised for bias, after all the African-American applicants and all but one Hispanic failed the test. Coincidentally, barely a month ago, the conservative majority of the Supreme Court narrowly overruled that holding, saying that disparate impact was not alone sufficient to strike down the test – and that it was “racism” against the white firefighters who did pass the test. As a visual flourish, during Sotomayor’s hearing, row upon row of New Haven firefighters (in uniform, all white men but for that lonely Hispanic) sat in on the hearing, there to object to her nomination. The cameras loved it, panning their solemn faces relentlessly.

In short, the Sotomayor hearing and the New Haven firefighters case have reignited the general American debate about affirmative action. So when the extremely distinguished Harvard university professor Henry Louis Gates was carted off in handcuffs, allegedly calling out: “This is what happens to black men in America!”, there was a distinct shimmer of schadenfreude in some parts of the national psyche. The reactionary themes that had been percolating during the last few weeks came bursting to the fore: minorities are taking over! Obama is only appointing non-whites! White people are the truly oppressed! People of colour, particularly ones who went to Harvard, Yale or Princeton, are reverse racists.

The arrest itself is hardly the best example of either racial profiling or police-state oppression. But the discourse that has welled up in its wake reveals a public inclination that is marred by that and more.

Patricia Williams is professor of law at Columbia University

• guardian.co.uk © Guardian News and Media Limited 2009

DNA and Innocence

The Talking Helix

by PATRICIA J. WILLIAMS

 

June 23, 2009

Johnnie Earl Lindsey spent twenty-six years in prison for a rape he did not commit. He was convicted based on the victim’s misidentification of him from a photograph shown to her a year after the crime occurred. The jury found her perception more credible than the word of Lindsey’s supervisor, who had testified that Lindsey had been at work at the time of the assault.

 

Today’s extremely precise technologies for analyzing DNA were not dreamed of two decades ago, when Lindsey was arrested and tried. By ordinary measures, therefore, he had had his day in court. The victim asserted his guilt; he asserted his innocence; a jury of their peers believed that her story was true beyond any reasonable doubt. As a formal matter, the conviction withstands the requirements of due process, no reason to look back.

 

Luckily, Johnnie Earl Lindsey’s case fell within the jurisdiction of Dallas County District Attorney Craig Watkins. Watkins, who in 2008 became Dallas’s first black district attorney, inaugurated a unit within his office in conjunction with the Innocence Project of Texas to re-examine the forensic material in closed cases using improved methods of DNA analysis. The results have been nothing short of stunning: of forty cases reviewed, almost half have ended with complete exoneration of the men originally convicted–nineteen men who lost an average of twenty years each while wrongly imprisoned.

Nationwide, the Innocence Project has facilitated 240 post-conviction exonerations, seventeen of which were of death row inmates. Perhaps the most famous reversal was that of the young men so noisily and ultimately wrongly convicted in the Central Park Jogger case. But outside Dallas County, most of these successes have been the result of individual convicts mounting numerous appeals to have the evidence against them reopened. Craig Watkins’s program in Dallas suggests that the overall numbers would be even more staggeringly high if prosecutors in all states took it upon themselves to test available DNA samples from old or suspect cases.

Indeed, in recognition of the probative value of this new technology, all states now admit DNA testing at trial; and all but three states honor requests for some form of post-conviction testing. If the end of our justice system is the protection of all of us through the restraint and detention of actually dangerous people, then the potential accuracy of DNA testing is an opportunity to be embraced and enlarged.

But last week, in the case of District Attorney’s Office for the Third Judicial District v. Osborne, the US Supreme Court’s conservative majority marched stolidly backward in time, ruling that there is no constitutional right to post-conviction analysis of DNA samples. The facts of the case unfolded in Alaska, one of those three states where post-conviction DNA testing remains a matter of prosecutorial and judicial discretion. In 1993, one William Osborne was convicted of kidnapping and sexually assaulting a prostitute on the outskirts of Anchorage. The victim identified Osborne “with some uncertainty,” from a photograph and again at trial. The condom used in the rape was found at the scene, but was not tested for a match using the most precise DNA technology of the time. Osborne maintains that he requested that it be so tested and that the results be presented at trial; but apparently his defense counsel believed he was guilty and thought it better not to conduct such a test as a tactical matter. So no such request was presented to the trial court.

The condom was preserved, however, and is still in the possession of the district attorney’s office. Osborne, now having served nearly sixteen years, sued to have the semen in the condom analyzed at his own expense. On June 18, 2009, however, the Supreme Court of the United States held that he had no right to a new test–or as Justice Alito’s concurrence bluntly expressed it, no “right to rummage through the State’s genetic-evidence locker.”

How can this be? To most lay people, the merits of permitting such testing seem clear. To understand the Supreme Court’s reasoning requires some understanding of how much the Roberts-led majority adheres to formal devices and cost-benefit analysis, even if the results remain substantively suspect.

First of all, it must be acknowledged that statistics regarding DNA exoneration represent a profound challenge to the legitimacy of our entire criminal justice system. If nearly 50 percent of convictions are shown to be in error–in one jurisdiction alone–then why wouldn’t a coin-toss be better than the expense of the trial process? I daresay most of us would agree that this mockery of the Constitution’s most cherished liberty interest urgently requires a top-to-bottom examination of the entire system–as a constitutional matter in the courts, but also requiring political and legislative evaluation of police investigative techniques, the adequacy of defense counsel, the ethics of prosecutors, the notoriously inaccurate and suggestible recollections of stressed eyewitnesses, and the relative carelessness in handling forensic material, to say nothing of the prejudicial influence of tabloid media upon juries.

In the face of such a rapidly unfolding landscape, the Roberts opinion responds by passing on any constitutional oversight of this quintessentially juridical quandary. Instead, the majority posits its expressed preference for letting the “elected governments of the States…[confront] the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality, as well as the opportunities it affords.”

Noam Biale, a writer with the ACLU’s program on technology and liberty, worries that this language effectively buries any chance of a coherent response to the problem: “While couched in a reluctance to ‘short-circuit what looks to be a prompt and considered legislative response to new technology, the disparate impact this will have on criminal defendants is well illustrated by the Alabama Legislature’s recent passage of a bill that severely restricts access to dna testing for individuals convicted of capital offenses.” (Yet even as the law would restrict access for those whose fates are most in the balance, the bill also mandates the state’s DNA collection from anyone, including juveniles, arrested for a felony, thus increasing and hoarding the inaccessible stock of the state’s impenetrable “genetic evidence locker.”)

Secondly, reopening old cases is normally predicated on “new evidence.” Although it might seem a technicality to some, improved technological means of interpreting long-stored samples of semen or blood do not literally make those samples “new evidence.” Still, one may wonder why we shouldn’t simply concede that extracting new information from old data amounts more or less the same thing. But retrospectivity of any sort is not easily embraced by our justice system, double jeopardy being the least of it. The rule permitting re-examination of “new evidence” is accompanied by a very high standard for showing materiality, and generally assumes the rarity of such post hoc discovery.

DNA analysis, by contrast, conceivably opens the door to re-examining hundreds of thousands of cases. And the Roberts opinion explicitly shies away from the “costs” associated with constitutionalizing DNA access on a broad scale: “We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested…. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when?” The majority opinion dismisses such concerns as policy issues that courts should not be deciding. And Alito’s concurrence laments the economic costs of DNA analysis even more specifically, citing the “severe backlogs in state crime labs across the country.” But even the substance of this latter point is contentious: while there may be backlogs in many generally underfunded forensic labs, that stress has little to do with post-conviction dna requests. Stephen Saloom, policy director for the Innocence Project, points out that forty-seven states have such laws with little indication of “floods of litigation’ or inappropriate costs related thereto. Therefore, Alito’s concern would seem to be a red herring.

Fourthly, the Roberts court expresses both naïveté and alarming cynicism about the proper function of both defense counsel and prosecutors. The ethical responsibility of a prosecutor is not only to prove the guilt of a defendant beyond a reasonable doubt, it is also to provide access to materially exculpatory evidence at any stage. In the Osborne case, the victim claimed that only one man raped her. If Osborne’s DNA were ruled out as that in the condom, it would be pretty definitively and materially exculpatory. But it is hard to extract that responsibility from Alito’s image of an ironclad “locker” of genetic property presumptively belonging to the State of Alaska and Alaska alone, figured as though it must be guarded from the random “rummaging” of convicts who just want to “play games” with the system. “The procedures that the state labs use to handle these hundreds of thousands of DNA samples provide fertile ground for litigation,” Alito complains.

Similarly, the role of a defense attorney is not only to put the prosecution to its burden of proof but also to be a responsible spokesperson or “mouthpiece” for the wishes of the defendant. In this case, Osborne’s attorney made a tactical decision not to request a DNA analysis at the time of trial, despite Osborne’s contention that he requested the same. The attorney’s failure to make a request on the record at the time of trial is held against Osborne in his seeking the test post-conviction. In a footnote, Roberts passes over the problem as follows: “Given the reasonableness of trial counsel’s judgment, the state court held that respondent’s protestations (whether or not he made them) were irrelevant.” Justice Alito seems even less inclined to respect counsel’s responsibility to zealously represent the interests of her client, implying that resources are just plain wasted when “no detail of laboratory operation, no matter how minute, is exempt as a potential point on which a defense attorney will question the DNA evidence.”

We are undeniably in the midst of a scientific revolution. DNA, properly handled, allows us to collapse time, to peek into the past with more accuracy than virtually any other tool. By the same token, improperly handled, corrupted DNA samples have singular power to implicate the innocent. For example, European police spent years trying to track down a mysterious female “serial killer” whose DNA showed up at murder scenes across France, Spain and Switzerland. None of the crimes seemed related but for the presence of the mystery woman’s genetic print. Finally, it was discovered that the DNA belonged to a sloppy German assistant who worked in the lab where police sampling kits were produced.

For another example of the risks of misreading what DNA can tell us, one need do no more than return to the Osborne case. Justice Roberts refers to the fact that at the time of Osborne’s trial–some sixteen years ago, when testing was much more primitive than now–the state of Alaska performed “DQ Alpha” testing, an older, “relatively inexact” form of DNA test. Not only has this earlier test since been supplanted by the indisputedly more accurate “STR” test that Osborne is presently seeking, but DQ Alpha was not nearly as discriminating as the then-available so-called “RFLP” test that Osborne had asked his attorney to seek. Osborne also sought mitochondrial DNA testing of pubic hairs found at the scene, mitochondrial data being far more accurate than the visual examination to which the state’s expert witness subjected the hairs.

Yet Justice Roberts refers to the results of that outdated DQ Alpha test as though it were dispositive: “The semen found on the condom had a genotype that matched a blood sample taken from Osborne, but not ones from Jackson, K. G., or a third suspect named James Hunter. Osborne is black (as were all the suspects), and approximately 16% of black individuals have such a genotype. In other words, the testing ruled out Jackson and Hunter as possible sources of the semen, and also ruled out over 80% of other black individuals. The State also examined some pubic hairs found at the scene of the crime, which were not susceptible to DQ Alpha testing, but which state witnesses attested to be similar to Osborne’s.”

Worst of all, however, is the opinion’s casual implication that DNA can reveal “race.” DNA can reveal direct family relationship; it can reveal broad migratory patterns in human history. What it cannot do is reveal race; race is an incoherent social construct defined by malleable, ever-changing social and cultural perceptions rather than by biological phenomena. Furthermore, the data cited by the court assumes a neat biological distinction between “black” and “non-black.” In other words, using racial taxonomies to read DNA results ignores the reality that–particularly in the miscegenous melting pot of the United States–many people who look, and even identify themselves as, “white” or “Hispanic” or “Asian” could also have a recent West African ancestor. What’s missing from the primitive interpretations to which Roberts refers is any analysis of how “black” was defined; or how large the sample set was from which such a statistic was drawn; or what the frequency of that genotype might be in so-called “white” or other socially defined ethnic groups. Indeed, the use of racial category in this particular kind of DNA analysis has been rejected as unscientific time and again by the National Institutes of Health’s consideration of the ethical, legal and social implications of the Human Genome Project; as well as in refereed journals like Science, the magazine of the American Association for the Advancement of Science.

In sum, the importance of this new technology begs for unprecedented investment in the upgrading of labs, in maintaining the security of collection methods and in the integrity of its interpretation. The truth that DNA evidence offers us should also give us pause about other, non-forensic failings of justice. Johnnie Earl Lindsey, for example, refused ever to waiver in maintaining his innocence. As a result, he was denied parole repeatedly. He explains that in order to make parole you have to express remorse, and remorse is considered the equivalent of a confession. Unlike Lindsey, Osborne did confess–in order, he says, to be granted parole. That confession is one reason Alaska has refused to permit him access to the condom. Similarly, many of the people subsequently exonerated by DNA had confessed to crimes they didn’t commit, almost always in return for the promise of a more lenient sentence, as with the Central Park Jogger defendants, or in order to be eligible for parole. The lesson we must take from this is that the methods by which police, prison guards and parole boards extract confessions must also be thoroughly scrutinized.

For those interested in supporting these and other efforts at reform, you may donate to the Innocence Project by visiting its website. It also sponsors local projects all over the country, for which volunteer opportunities abound. (See the section on the website titled “What Can I Do?” For more information about Dallas District Attorney Craig Watkins, you can go to the website of the Discovery Channel’s series chronicling of that office’s work, “Dallas DNA.”

For some lucid summaries about the misuse of racial category in DNA analysis, a good place to start would be “Race and Reification in Science,” in the February 2005 volume of Science magazine, written by Troy Duster, director of NYU’s Institute for the History of the Production of Knowledge; or medical anthropologist Duana Fullwiley’s article, “The Biologistical Construction of Race: ‘Admixture’ Technology and the New Genetic Medicine,” in volume 38 of the journal Social Studies of Science, 2008. See also, “Among Many Peoples, Little Genomic Diversity,” in the June 22, 2009, edition of the Washington Post. And for the more scientifically inclined, see “The Role of Geography in Human Adaptation,” by Coop, Pickrell, et al., in volume 5 of PLoS Genetics, June, 2009. And the forthcoming (July/August) issue of Genewatch, the magazine of the Council for Responsible Genetics, will devote its entire issue to “Genetics And Race: Past Abuses, Present Prospects And Future Solutions.”

Finally, the bittersweet, nearly ignored after-life of the young men accused in the Central Park Jogger case will be the subject of a book and a PBS series by Ken Burns and his daughter Sarah Burns, probably out sometime next year.