Reading Los Angeles: Join The Times' new book club
Opinion Op-Ed

Fast-track executions?

What's wrong with this picture?

Exonerations of wrongly convicted prisoners are at an all-time high. Last month, the governor of Washington put executions on hold because, since 1981, when the state last updated its capital punishment laws, a majority of the 32 death sentences that were imposed were overturned. More than a dozen other states have also called a halt to executions, for various reasons.

And yet, three former California governors — George Deukmejian, Pete Wilson and Gray Davis — are urging the state to speed up a clearly flawed process of deciding who's to die. Their approach could theoretically limit the state appeals process, which now generally takes 12 to 15 years, to five years.

It may be easy for most people — even former governors — to ignore or dismiss these injustices. Many of the wrongly convicted are poor black men, invisible to the majority of Americans. Too many of us buy into what's on TV detective shows: irrefutable scientific tools that identify the guilty beyond a shadow of a doubt. Plus, nobody wants to admit that blameless people have died at the hands of the state. Humans will do almost anything to preserve their self-regard, including avoiding the implications of exonerations, every one of which, as social psychologist Carol Tavris says, "is stark, humiliating evidence of how wrong you are."

The facts should send chills up anyone's spine.

Take eyewitness testimony. According to the Innocence Project, which uses DNA evidence to challenge wrongful convictions, eyewitness misidentification is the culprit in more than 70% of the cases. Researchers have pinpointed the way misidentifications increase dramatically across class, age and racial lines. A recent Stanford study found that an interviewer's perception of whether subjects were white or black changed depending on such circumstances as where the subjects lived and whether they had been imprisoned.

Memory, an obvious aspect of eyewitness evidence, is just as insidious. "I remember what I saw" is a misleading illusion. And despite what instinct tells you, those who tell very detailed and consistent stories are more likely to be liars than those who are uncertain or self-contradictory.

Memory is malleable. It can be easily "primed" or implanted, when statements are heard again and again. As Nobel laureate in economics Daniel Kahneman points out, "familiarity is not easily distinguishable from truth." That phenomenon may explain why innocent people confess, usually after hours of persuasive talk from prosecutors. Up to a fifth of those later found to be innocent confessed to the crime.

Popular television crime shows suggest that misperceptions and flawed memories don't matter because "scientific" evidence trumps all. In truth, what witnesses see and hear and experience is still often the only evidence presented. Worse, "scientific" evidence isn't necessarily reliable or even scientific.

A single fingerprint can land you in jail, and yet the notion that everyone possesses a unique set of prints has not been proved beyond a doubt. Though certainly useful, fingerprints are not the fail-safe method of establishing identity that has been sold to courts and the public. Ballistics, hair sampling, matching teeth marks — all seemingly solid evidence — are potentially unsound. Texas has just decided to review convictions based on microscopic hair analysis, a forensic tool that DNA analysis has showed to be iffy at best. At least one Texas inmate, Claude Jones, was found guilty and executed in 2000 primarily because of microscopic hair analysis that was later proved wrong.

Even the gold standard of evidence — DNA — is only as good as the lab handling it. It can offer a billion to 1 or more probability that the suspect was at least present at a crime scene. But DNA samples are often small or degraded or simply misidentified. It's sobering to note, as the National Research Council did in a report in 2009, that only 60% of publicly financed crime labs even employed a certified examiner.

All forensic evidence is only as strong as its weakest link. Whether the lab is analyzing bones, hair or genetic material, an error rate of 1 in 100 could translate into many thousands of wrongly convicted people. The good news is that the reliability of all this evidence can be improved.

The Justice Department and the National Institute of Standards and Technology this year created panels of scientists and legal experts to finally set federal standards for forensic science and training practices. Eyewitness identification is more reliable if the officer conducting a lineup doesn't know who the suspect is, or if witnesses see the potential suspects separately rather than all at once. The forces behind false confessions become all too clear when interrogation sessions are taped. More research and more oversight are crucial.

Yes, the U.S. justice system ranks as one of the fairest in the world. But that doesn't exonerate it from the terrible mistakes it has made.

There's no doubt that many of the prisoners now on death row in California have committed unspeakable crimes. But if exoneration rates tell us anything, it's that some could well be innocent — the victims of bad science, wrong testimony and citizens who find it too easy to look the other way. Justice will never be perfect, but until the state acknowledges the gaps in the process and institutes reforms, it shouldn't be in a hurry to speed up the pace of executions.

K.C. Cole is a journalism professor at USC and a former science writer for The Times.

Copyright © 2015, Los Angeles Times
Related Content
  • Fast-track executions?
    Fast-track executions?

    Former Govs. George Deukmejian, left, Gray Davis and Pete Wilson want to speed up death-penalty appeals.

  • This year's most poignant condemnations of the death penalty
    This year's most poignant condemnations of the death penalty

    For opponents of the death penalty, this has been something of a heartening year. The country is on a pace for its fewest executions since 1994, and although public support for the death penalty remains at a stubborn majority, high-profile exonerations and botched executions have led to new calls...

  • The slow pace of justice in North Carolina
    The slow pace of justice in North Carolina

    A North Carolina judge in September agreed that DNA evidence from a 1983 rape and murder did not match that of either of the two men who had been convicted of the crime. The judge ordered the two wrongfully convicted half-brothers, Henry L. McCollum and Leon Brown, released from prison, and so...

  • No, Justices Alito and Scalia, death penalty politics aren't the issue
    No, Justices Alito and Scalia, death penalty politics aren't the issue

    Oral arguments before the Supreme Court earlier this week over Oklahoma’s lethal-injection protocol took an unusually harsh tone (which Dahlia Lithwick parses nicely here at Slate). What was more jarring, though, was the theme of statements – er, questions - by some of the judges about the backdrop...

  • Texas execution of a severely mentally ill man would be an outrage
    Texas execution of a severely mentally ill man would be an outrage

    On Wednesday, Texas plans to administer a lethal injection to Scott Panetti, a man with severe mental illness who was convicted of murder while representing himself in court wearing a cowboy costume. If the state does so, a miserable spectacle of a trial will have led to one of the most outrageous...

  • Georgia: Court rules mean intellectually disabled murderer must die
    Georgia: Court rules mean intellectually disabled murderer must die

    Nearly 14 years ago the state of Georgia asked two psychologists and a psychiatrist to evaluate a convicted killer named Warren Lee Hill Jr., who had filed a legal challenge to his death sentence on the grounds that he lacked sufficient intellectual capacity to understand why Georgia wanted him...

  • Death for Boston Marathon bomber Dzhokhar Tsarnaev? It's not the victims' call
    Death for Boston Marathon bomber Dzhokhar Tsarnaev? It's not the victims' call

    A federal jury in Boston will soon decide whether to sentence Dzhokhar Tsarnaev, the surviving Boston Marathon bomber, to death.  Lots of people have opinions on this question, including the editorial board of this newspaper, which reiterated its view that no crime, including this one, warrants...

  • Kinder, gentler forms of capital punishment are still barbaric
    Kinder, gentler forms of capital punishment are still barbaric

    The state of Oklahoma, which developed the nation's first lethal injection protocol for executions, may soon approve what lawmakers say is a new, even more humane way of killing people. Following the advice of a criminal justice professor who is also a former assistant attorney general of Palau...