Another day, another wrongful conviction: Perverse incentives in law enforcement

by John McBeath Watkins

There's a disturbing story out of Texas, about a man wrongfully convicted of murdering his wife serving 25 years in prison while the actual killer was free to kill again.

From NPR:

How was (Michael) Morton finally freed? His wife's brother had found the bloody bandanna the police left later that day, and he turned it in. For years, Williamson County fought Morton's requests to have the evidence in his case tested. Prosecutors ridiculed his efforts and taunted him, saying they'd consider DNA testing the evidence only if Morton would first take responsibility for the crime.
It was when a Texas appeals court finally ordered the bandanna DNA-tested last year that law enforcement's arrogance was blown to pieces. After remaining silent tor months, Anderson, the former Williamson County district attorney and now a state judge, held a press conference.
"As district attorney at the time, and as woefully inadequate as I realize it is, I want to apologize for the system's failure to Mr. Morton and to every other person who was adversely affected by this verdict," Anderson said.
Christine Morton's blood was found on the bandanna, as was the blood of another man, Mark Alan Norwood. Norwood has a long criminal record, including assault, and is now in jail awaiting trial
Not that the prosecutor needed to wait for DNA testing to come along.
The other bombshell occurred when the appeals court ordered the defense attorney and sheriff's files opened completely. The exculpatory evidence found there stunned Texas legal circles.
 The prosecutor in the case, Ken Anderson, has apologized to "Mr. Morton and to every other person who was adversely affected by this verdict,"

And who might the others "adversely affected" be?

A year after Christine Morton was murdered, An Austin woman named Debra Baker was murdered, and the DNA evidence points to the same man as allegedly killed Morton.

Anderson is now being investigated, and claims he broke no laws. He might be right, there are a lot of states where prosecutorial conduct  is not a criminal offense. I suppose his defense will blame the sheriff in the case, who is safely dead. But however the blame is apportioned, it highlights some perverse incentives in our legal system.

How does a prosecutor get to be a judge? By being a good prosecutor. How is his performance measured? By his conviction rate and success in securing convictions in high-profile cases.

How does a sheriff get re-elected? By making arrests, especially in high-profile cases, and assuring the voters that he's sent the villains to prison.

Now, we've discussed some of the perverse incentives in drug cases, but we should recognize that there are perverse incentives in all cases. Cops are judged by the number of tickets  the wright, the number of cases they close, and how quickly they locate the guilty party. Incentives do strange things to the way people think, allowing them to justify to themselves things that without the incentives they might not believe.

As Upton Sinclair said in his 1935 book, I, Candidate for Governor: And How I Got Licked, "It is difficult to get a man to understand something, when his salary depends upon his not understanding it."

Add to this what we've learned about the unreliability of eyewitnesses and how easily it is manipulated by police questioning witnesses, and you can see that even in the absence of bad faith, there's plenty of room for convincing people -- cops, prosecutors, judges and juries -- that the innocent are guilty.

We would never have known some of this if DNA testing hadn't come along. I was working as a reporter on the police beat for a newspaper in Texas when the Department of Public Safety (the name always reminded me of the Terror following the French Revolution) was taking Henry Lee Lucas around the state tying him to
 about 350 murders. Lucas actually confessed to about 600, but the 350 were the ones deemed "believable" by the Lucas Task Force -- until Hugh Aynesworth, a journalist, noticed that to commit some of those murders in different places at nearly the same time, Lucas would have needed to travel at speeds not humanly possibly. Suspicious prosecutors then interrogated Lucas about crimes they deliberately made up, and Lucas confessed to the imaginary crimes.

But before all that was known, I was talking to a veteran officer who said he'd sure like to talk to Lucas, there were some cases he'd like to clear. The statement struck me as off, so I asked if he had reason to think Lucas was involved. He shut up at that point, and I hope rethought the lure of easily closing cases with confessions that might not be true.

It seemed likely to me that a bum who had confessed to, at the time of that interview, more than 100 murders, might just be a pathetic loser who liked being the center of attention. And I don't have any super powers, just a tendency to observe critically.

Lucas was facing numerous death penalty cases at the time, as prosecutors signed on to the gravy train of easy convictions that would boost their reputations. The ones that exposed the hoax were perhaps thinking farther down the road, to the possibility of cases being overturned, or perhaps they had already made their reputations. There was also the matter of families that didn't believe Lucas's confessions to the murder of their loved ones, and wanted the actual killer arrested.

But there were also police ready to take the easy way, and take the easy case closing.

I'd like to think cases like this will change the way the criminal justice system works, but that line of Upton Sinclair's keeps coming back to me:

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."