Guest post by Myer Sankary
Foreword by Jason Castillo
We recently had the pleasure of working with attorney and mediator Myer Sankary to produce an incredibly excellent course on bias in the legal system. In addition to being a full time mediator, Mr. Sankary has had the privilege of studying with renowned neuroscientists around the world on the subject of bias.
We videotaped Myer’s course a little over a month ago and we have already received a number of incredibly positive comments about the course. Myer also had a viewer email him in regards to a case example he used to illustrate how bias plays out in the legal system. The case example involved Ronald Cotton, an African American man who was wrongfully convicted of murder. The viewer posed the following question:
Question: How is the Cotton case a study in BIAS, instead of mistaken identity?
I wanted to include Myer’s response for our readers who have viewed the course or anyone interested in the subject. Myer’s response is very insightful and articulate, and I think it does a great job of framing and discussing the issues of bias in the legal system. Below is Myer’s response:
You have posed an excellent question about the Ronald Cotton conviction. Wasn’t it just a matter of “mistaken identity?” Yes, indeed it was about mistaken identity. The witness, Jennifer Thompson, made a dreadful mistake in identifying Cotton in the photo array, at the lineup, and then in court – at two separate trials. After Cotton was in jail over 10 years (serving a life sentence for rape and robbery) it was conclusively proven by DNA tests that Cotton could not have been the person who raped Thompson How is this possible that an innocent man could be convicted in a North Carolina court and sent off to serve a life sentence? What lessons can we learn from this case so it won’t happen again?
To begin my answer, it is important that you hear from the witness herself about how she came to become so confident that Cotton was the perpetrator. You can see an interesting videotape of Jennifer and Ronald Cotton, along with the chief of police who investigated this case at the Innocence Project website: http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php You will hear how the photo identification was made and then how Thompson chose Cotton in the lineup. There is also a very interesting comment from Cotton who graciously acknowledged that it was just a case of “mistaken identity!”
It is my contention that none of the players in this drama were fully aware of how their biases influenced the outcome of Cotton’s double conviction. Advances in social psychology reveal how this case is a study in bias and not simply mistaken identity. To support my contention I refer to two authoritative sources by a number of well respected social scientists. The first is an insightful book by Tavris and Aronson, called “Mistakes Were Made (but not by me); Why We Justify Foolish Beliefs, Bad Decisions and Hurtful Acts,” (Harcourt 2007) Chapter 5 is called “Law and Disorder” and details how preconceived commitments (biases either express or implied) to the guilt of a defendant by witnesses, investigators, prosecutors, judges, juries and even some defense attorneys lead to the conviction of innocent defendants. Another important resource is the work of a team of noted social scientists found at www.implicit.harvard.edu which I mentioned in my presentation. Research has shown that people are unaware that there is a type of bias that the person in position of power does not even know influences their decision – this is known as “implicit bias” and is revealed by the implicit association test which has been administered to substantial numbers of persons online. This means that if you were to ask the investigator, the prosecutor, the judge, the jury or the witness if they had any bias against Ronald Cotton because he was a young black man, they would all vehemently deny such a claim and would more likely be offended by anyone who might accuse them of such behavior.
In this case, Thompson the witness was sure that Cotton was the perpetrator. Her decision to select Cotton from the photo array was biased by the investigator and the process used. They should have given her several arrays that did not include Cotton, the person the investigator suspected of the crime. Instead, Thompson was given a limited number of photos to choose from, all black men, including Cotton. When she chose Cotton, the investigator confirmed that he thought Cotton was the guilty party. When she picked him out of the lineup, again the investigator who conducted the photo selection, conducted the lineup, and confirmed that she picked the right man. When Thompson testified, she was confident that she had accurately identified the perpetrator (because of the encouragement of the investigator). The investigator meanwhile was aware of the possibility of another perpetrator of similar appearance, but was now convinced that Cotton was the guilty party because Thompson was so sure. The investigator was unaware that he was the reason the witness was so sure. When the real perpetrator confessed to his cellmate that he committed the crime, and a second trial was ordered for Cotton, Thompson again was sure it was Cotton and not the real guilty perpetrator. This is called confirmation bias. Once she made a decision that this was the perpetrator, the victim was not willing to consider any other person could be guilty. Our brain functions to compel us to find reasons to support our commitment to our first decision. particularly when the commitment is open, voluntary and public (her testimony at trial was a public commitment) – that Cotton was the perpetrator.
The victim had several biases operating to identify the wrong perpetrator. (She is white, the perpetrator was black) But more importantly, the bias of the investigating officers affected their handling of the photo array and the lineup. Believing that they had the perpetrator, and unwilling to consider any other possibility, they skewed the information provided to the victim who was guided to select the person the investigators believed to be the perpetrator. Bias of the investigators also led them to disbelieve Cotton’s confirmed alibis. The prosecutor’s bias also came into play – accepting without critical review the conclusions of the investigators and the biased witness. At the core of all this was the fact that Cotton was black and the victim was white, a higher than normal likelihood that he would be convicted in that jurisdiction at that time. Bias contaminated the judicial process throughout – probably including the jury who were more likely to convict an innocent black man in that county in North Carolina in the 1980’s than believe in the possibility of his innocence. This is the important lesson from this case. If we believe it was just a case of mistaken identity, we will not address the underlying reality of flaws in the judicial system.
Bias occurs when we have a predisposition to the way things are in our set of experiences and values influenced by our environment. Here, the facts were a victim of the biases of those in charge of the system. No one was willing to review the case objectively and to ask whether Cotton’s story could be true – they had formed their conclusion that he was guilty based on preconceived notions about the behavior of a young black man. To compound everything, when the real perpetrator confessed to the crime and a second trial was held, the victim again because of bias would not accept the fact that someone else confessed to the crime, and she became more committed to her mistaken belief that Cotton was guilty and wanted to see him punished. She was outraged that Cotton was trying to claim his innocence by pointing to someone else who confessed to the crime. When you read the facts of the case and particularly the victim’s recantation after she was faced with the reality of DNA evidence that Cotton could not have been the perpetrator, and the DNA of the real perpetrator was confirmed, she had to realize that she should have done things differently.
Believing that this was just a case of ”mistaken identity” is not a sufficent explanation for the results in this case. It is only a surface explanation which can be excused. We will not learn about how such grievous wrongs are perpetrated if we do not realize that it is bias, expressed or implied, that influences those who were responsible for the legal system . If the perpetrator were white, or if Cotton had no alibi, or if he had been seen in the area at that time by other reliable witnesses, one may excuse the conviction based on mistaken identity. But mistaken identity in this case was a product of bias. For more details and information about mistaken identity as a main cause of about 75% of wrongful convictions of innocent defendants, visit www.innocenceproject.org.
I hope this case stimulates thinking and discussion about how we can recognize and manage bias that affects all the participants in the legal system.
– Myer Sankary
You can access Myer’s course — Elimination of Bias in the Legal System — by clicking here.