Later On

A blog written for those whose interests more or less match mine.

A new way to reform the criminal justice system

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Douglas Starr reports in the New Yorker:

Last year, the district attorney’s office in Montgomery County, Pennsylvania, blew a case. The chairman of the county’s Republican Party, Robert J. Kerns, had been accused of rape by a woman who worked at his law firm. The woman said that Kerns had offered her a ride after an alcohol-fuelled office party. Along the way, she said, he gave her wine and raped her in his Mercedes, and then again in her home. Hospital reports showed bruising consistent with a sexual assault, and DNA on the woman’s underwear was consistent with Kerns’s profile. A key piece of evidence was a urine test apparently showing the presence of Zolpidem, commonly known as Ambien. Prosecutors secured a grand-jury indictment on more than a dozen criminal counts, including rape and aggravated indecent assault. Afterward, they held a press conference.

Several months later, a toxicologist hired by Kerns’s defense took a closer look at the lab report. Although the word “Zolpidem” appeared, what the document indicated was that the test had detected “less than” five nanograms per milliliter, which in this case was zero. Kerns’s lawyer got in touch with the prosecuting attorneys, who were horrified to realize that they had misinterpreted the findings—a rookie mistake.

“It was a huge embarrassment,” Risa Ferman, Montgomery County’s district attorney, told me. She and her staff had plenty of evidence that Kerns had committed a sexual assault, but, because the drugging was written into the indictment, they had to drop charges and refer the case to the Commonwealth’s Attorney General’s office. A newspaper called the incident a “fiasco.”

Normally after such a mistake, the D.A. would fire the responsible parties and announce that she had cleaned house. Instead, Ferman did things differently: rather than find a culprit to blame, she held a series of meetings to discover the organizational errors that had led to the mistake. “These were skilled professionals,” she told me, who had not set out to sabotage their case. What factors, she wondered, had caused competent people to make bad choices?

In asking this question, Ferman was following a procedure alien to the justice system but entrenched in the health-care and transportation industries. A few decades ago, administering anesthesia was one of the most dangerous medical procedures, and had a mortality rate of about one in ten thousand. By analyzing the circumstances of those deaths through an independent review process, experts learned that a few simple equipment changes could save lives: making the nozzles and hoses of oxygen and nitrogen incompatible, for instance, so that patients could not be given the wrong gas. Today, the death rate involving anesthesia hovers at around one in a hundred and eighty thousand.

Nowadays, flying a commercial airplane is one of the safest things that you can do, notwithstanding high-profile tragedies such as the crash of a Germanwings flight last week. That’s because, after each accident, the National Transportation Safety Board conducts a thorough and objective review, protecting involved parties from prosecution and liability, and focussing solely on improving safety. (Even though the N.T.S.B.’s findings are made public, the information is not admissible as evidence in court.) Many improvements, from the strip lighting along the aisle to the way in which cockpit staff communicate with each other, resulted from this review process, often referred to as “sentinel event analysis.”

A series of experiments over the past year has aimed to build similar safeguards into the justice system. A veteran Boston defense attorney, James Doyle, observed the proliferation of exoneration cases in the post-DNA era and has worked on a number of reform efforts. “No one gets into this job to convict innocent people,” he told me. “The real problem is developing the capability for dealing with inevitable mistakes.” He wondered if “sentinel event analysis”— reviewing legal errors in a blame-free environment—could tease out the sequence of factors that might have contributed to a mistake and, perhaps, lead to a more accident-proof legal system.

Sponsored by the National Institute of Justice, Doyle travelled the country interviewing police, prosecutors, defense attorneys, and victims’-rights groups, among others, culminating in a kind of summit meeting in Washington, D.C. Based on his work, the Institute organized an experiment in which three jurisdictions—Milwaukee, Baltimore, and a third, in Philadelphia—volunteered to do a systems analysis of a high-profile failure. The Montgomery County experiment, conducted in parallel with the N.I.J. study, was a fourth.

In every case, the horrendous legal accident turned out to have multiple causes embedded in the legal system. There was no single bad actor. . .

Continue reading.

Written by LeisureGuy

31 March 2015 at 12:23 pm

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