Fault Lines
12 January 2019

The Richard Glossip Saga: When Being Right Matters More Than Doing Right

Sept. 28, 2015 (Mimesis Law) — Despite the last-minute reprieve, Richard Glossip is still scheduled to die this week on Wednesday. Prosecutors have been quick to dismiss additional witnesses and other revelations that have developed in the last few weeks that continue to point to Glossip’s innocence.

But throughout the case, prosecutors from the local district attorney to the Oklahoma Attorney General’s Office continue to tow the line: Glossip is guilty, there is no room for innocence.

Why is it so difficult to admit that they could be wrong?

Blackstone’s ratio, that “it is better that ten guilty persons escape than that one innocent suffer,” seems to have evaporated in high-stakes post-conviction settings. Instead, the prevailing mindset in such cases tends to sway in the direction of being right rather doing right.

While that level of stubbornness may serve Donald Trump in the polls, it should not suffice in our justice system. And that tunnel vision isn’t limited to just prosecutors. Police and defense attorneys can be just as susceptible to it. This is especially true when the defendant isn’t a choirboy.

One of the cases that epitomizes this is that of Frank Lee Smith in Florida. Smith received the death penalty for the 1985 rape and murder of an eight-year-old girl. Years later, Smith’s lawyers found testable biological material (semen) from the girl’s clothing. Lawyers in the case grappled over testing the DNA. Both prosecutors and defense attorneys thought Smith was guilty because he was a bad guy with a history of violence. Surely, they had the right man, so the DNA would only confirm what they knew to be true.

Ultimately, the DNA was tested, and it pointed to serial killer and rapist Eddie Lee Mosley. But it was too late for Frank Lee Smith. He died of cancer while on death row. Smith was posthumously exonerated in 2001 and in 2013 his family settled a lawsuit against the county for a paltry $430,000 because the defendants would use Smith’s criminal history to justify the conviction.

Prosecutors and police should be out to seek justice, but sometimes the objective becomes to win at all costs. There are multiple cases where prosecutors have fought tooth and nail to preserve a conviction rather than allow justice to prevail.

Perhaps part of the reason that admitting a mistake becomes so untenable is that it opens up the figurative floodgates to questions about other cases. Numerous crime lab scandals around the country make the cogs of the criminal justice system leery of coming forward with errors.

We need a system that is more accepting of mistakes. While we’ve made some strides through the work of the Innocence Project and other groups, changing the status quo is an uphill battle.

Tunnel vision is difficult to combat. It’s expected and ordinary for police and prosecutors to quickly attempt to put a public at ease that they will just as quickly find a suspect and get a dangerous person off the streets permanently. Once that person is identified and there is a tiny bit of evidence to support that conclusion, the tunnel vision kicks in, and all efforts are devoted to confirming that conclusion. Including making square pegs fit into round holes.

Part of the problem is our natural human propensity and psychology to gather evidence (or data points) and then use that evidence to confirm the pre-existing theory. Even after the fact, that conclusion remains inescapable, obvious, and correct.

There are also “institutional factors” inherent in the criminal justice system that strengthen and support tunnel vision and bias. Studies of institutional decision-making tell us that this is due to the disparity between the objective of the criminal law (justice, right?) and the obstinate incentives that stakeholders in the system receive in order to help reach those objectives (capture the bad guys, punish them, and thus keep the public safe).

The problem is that in most cases we can’t say with absolute certainty that that someone is without question guilty or not guilty. Reasonable doubt cannot overcome tunnel vision. The questions along the way that develop about the confidence in a case can easily be dispelled when tunnel vision takes over.

Tunnel vision led to an innocent man dying on death row in Florida. It matters not that Smith did not physically die at the hands of the state by lethal injection. He never saw his own exoneration.

Tunnel vision might lead to a similar result in Oklahoma. At this point, even if the Hail Mary came through and Justin Sneed confessed that he alone did the crime, I would guess that the powers that be would consider it “inherently suspect” and move forward with the execution.

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