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Monday, October 15, 2012

The Hitman's Tale and Wrongful Convictions

    This is my second post on the terrific article by Nadya Labi, The Hitman's Tale, in the Oct. 15, 2012, edition of The New Yorker.  Labi tells the story of Vincent Smothers, convicted of eight murders in Detroit, all of them committed as a gun-for-hire.  There's no dispute about Smothers' guilt; he continues to concede his guilt while serving a life sentence.  But Smothers confessed to twelve murders.  Police prosecutors did not pursue charges on four becuase they had already convicted a teenager, Davontae Sanford, of those murders.  Sanford's conviction has all the red flags of a wrongful conviction: it is based on little more than his confession, given under police interrogation as a fourteen year old of sub-par intelligence, and with a history of falsely claiming to have committed lesser crimes but no history of violent crime.  Labi describes Sanford's trial judge has having pushed the parties to reach a plea bargain, which they eventually did, and of opening stating that he would have given a harsher sentence after a trial conviction. (Instead, Sanford got 37 to 90 years.)

    There's nothing new here for those familiar with the literature on both false confessions and wrongful convictions.  But what continues to shock is how poorly the criminal justice system responds to very strong indicators of wrongful convictions, and how poorly designed it is to do so.

  Part of the barrier is the overwhelming commitment to finality of judgments, no matter the stakes or the reasons for believing a prior decision erroneous.  Part of it is the absence of any structure to really investigate post-conviction errors seriously.  Whether Smothers' confessions undermined Sanford's conviction was assessed by the same police and proseuctors who handled Sanford's prosecution, that is, those with personal confidence that their prior work was correct and a disinclination doubt the results they worked to achieve.  (They are apparently convinced, even in retrospect, that a 14-year-old with no record and no physical evidence or eyewitnesses linking him to the murders is the more likely killer than the experienced hit man with a record of committing similar drug-deal-related killings who can testify to the murders in detail.)   It seems obvious that reassessment of cases like Sanford's should be handled by a different team of police and prosecutors who can view the case with fresh eyes and less vested interest—or by a different sort of body altogether, like the wrongful conviction commssions in North Carolina and the U.K.

    Finally, there are also clear indications in the article—especially in last two pages, which focus on Sanford’s attempt to set aside his guilty plea, which the trial judge refuses to do—about how individual judges, and the judicial system as a whole, just don’t take seriously their responsibility to uncover and establish the truth.  As the work of Mirjan Damaska and other comparativists have described, this is a tendency of the adversarial system of justice (in contrast to the European inquisitorial model) taken to extremes: the priority is on resolving conflicts between the parties, which the plea did, rather than ensuring that public court judgments establish, and rest upon, the factual truth.

    One example from this case: part of the reason for not setting aside Sanford's guilty plea is that Smothers initially declined (Labi suggests perhaps he would not now) to repeat his confessions in a hearing on Sanford's case.  His thinking, as Labi describes it, is that he had done enough of that already—he'd confessed to police and repeated his admissions subsequently; surely would be enough to help Sanford.  A system that took factual truth seriously would not hinge its outcome in good part on a witness's idiosyncratic rationale for choosing not to testify.  It would compel Smothers to testify.  It could do so by granting his immunity for his testimony, without the slightest cost to the public interest, because Michigan already has Smothers in its custody for the rest of his life; there' no more punishment to add, and so no loss from waiving a chance for additional convictions.  There is, however, a need for ensuring that Sanford's conviction is correct.  And there is, or should be, a public interest in establishing who actually killed the four victims Sanford was convicted of killing.  But our system instead prioritizes efficient conflict resolution and finality, and places the levers of power in the hands of officials with little incentive to revisit their mistakes and great incentives to avoid recognizing them.

Posted by Darryl Brown on October 15, 2012 at 02:43 PM | Permalink

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