Nancy Petro commented in her post yesterday about Aurora, Illinois, police commander Kristen Ziman’s editorial It Shouldn’t Be A Surprise When Cops Do the Right Thing, and I’d like to add a few words.  By way of background, I previously blogged here and in a post entitled Good Cops Warm the Heart, about the fact that Kristen Ziman’s department has taken affirmative steps when new information comes to light to open-mindedly look into old convictions to make sure that the right person is in prison.  In one instance, her department’s pro-active “second-look” policy resulted in the exoneration of an innocent man.  Thus, the national acclaim was quite justified.

Ziman’s recent editorial shows that she was surprised (and a little offended) that blogs like this one were so congratulatory of her department’s good deeds.  The reaction to her office’s conduct was offensive to her because it carries with it an implicit suggestion that her department’s conduct is not typical.  It carries with it an assumption that other police departments would sometimes fail to act on new evidence that shows an inmate might be innocent.

In defense of her profession, Ziman recognizes that there are a few bad apples in police departments here and there, but correctly notes that there are bad apples in all walks of life.  Thus, she suggests that police departments as a whole are perhaps not deserving of such criticism because of a few bad apples.  Accordingly, she says, police departments have a lot of work to make the public realize that its perceptions are unfair and do not match reality.

I agree with Ziman that most police officers (and prosecutors) are honorable and want to do the right thing.  I also agree with her that there are just a few bad apples in police departments and prosecutors’ offices here and there, and not at any higher ratio than in other professions or organizations (such as law schools or Innocence Projects or any other entities).

I believe, however, that Ziman has completely missed the point, as have most police officers and prosecutors with whom I’ve had conversations on this subject.  And I can say from my experience as a prosecutor, and now having done post-conviction innocence work for more than a decade, that the media and public acted with surprise because MANY police and prosecutors DO unreasonably resist post-conviction evidence of innocence, and DO NOT RESPOND in a fair and objective way when presented years after a conviction with new evidence of innocence.  Thus, her department’s behavior received national attention because it is IN FACT the exception rather than the rule.

The disconnect is that Ziman looks around at other police officers in her department, and officers with whom she has interacted with around the country, and she sees mostly good people trying to do good work.  Thus, the implicit criticism of her profession does not jive at some gut level with what she experiences and sees on a daily basis.

But the point she is missing is that most police officers and prosecutors  who fail to respond properly to post-conviction innocence are not “bad apples” or corrupt.  They fail to respond properly and fairly because they are human beings, and because human beings are prone to lose objectivity when they are deeply invested in a case or a process.  Thus, the prosecutors and police who react unreasonably to post-conviction evidence of innocence are usually good people.  They are not the “corrupt” cop or prosecutor out to destroy someone like you might see depicted in a movie, but rather, the type of people who you might meet at church or see volunteering to read a book to your child’s 1st grade class and cause you to think, “That’s a hell of a guy/gal. I’m glad she’s a prosecutor.”  But these same “good people” too frequently wreak havoc and destroy families in post-conviction innocence cases because they suffer from the very human phenomenon of tunnel vision, and they (and their employers) fail to do anything about it.

By way of example, when a new witness comes forward 10 years after conviction who says the inmate  is innocent, a cop or prosecutor with tunnel vision will do the opposite of what Kristen Ziman’s department does, and will make the immediate knee-jerk reaction that this new witness is not credible.  They will assume with steadfast conviction, for example, that the new witness has “obviously” been “put up to it” by the prisoner or his family.  Instead of meeting the witness with an open heart and open mind and re-investigating while striving to remain as fair and objective as possible, the tunnel-vision cop or prosecutor will set out with one goal in mind:  to ensure that the new witness’ credibility is destroyed (“as it should be”).  See story here for example of this, of which there are many…

The cop or prosecutor does not do this because he is a “bad apple” or is a corrupt person generally.  He does it because he honestly believes, in good faith, that the evidence at trial was overwhelming of guilt, that the prisoner is a danger to the community, and that this new wrinkle is some falsely constructed attempt by the prisoner to escape responsibility and obtain undeserved freedom and compensation.   The tunnel vision cop or prosecutor believes he or she is protecting the public and carrying out his duties with integrity when acting in this fashion.  For more discussion of tunnel vision and many, many examples, see my post here.  See also my article here (which includes many citations to articles and studies).  Also see a discussion of tunnel vision in The Police Chief Magazine here.

The phenomenon of police and prosecutorial “tunnel vision” has become so well-recognized that there are many scholarly articles–and psychiatric studies–discussing it.  Simply put, it is a human weakness to which we all are capable of succumbing.  Despite those in Innocence Project screaming for years about how tunnel vision by law enforcement is wrecking the lives of innocent people, I find most police officers and prosecutors to be woefully ignorant of the problem (or in total denial of it).  And of all people, it is police and prosecutors who need an understanding (and perhaps training) regarding tunnel vision more than anyone else.  When a teacher suffers from tunnel vision, for example, she is not as effective teacher as she can be.   But when a prosecutor or police officer suffers from tunnel vision, innocent lives are ruined and families are shattered.  For an example of how lives are destroyed by tunnel vision, watch this Dateline NBC episode here…If you want more examples, I can get you hundreds more.

Former Ohio AG Jim Petro and I met last year with the current Ohio Attorney General Mike DeWine and one of DeWine’s top legal assistants.  Petro and I requested the meeting to discuss the following phenomenon:  Now that DNA databases are becoming robust, it not an uncommon occurrence for a person arrested and DNA swabbed last month (and their DNA put in the database) to come back and match the DNA from a crime scene from 15 years earlier for which someone else is currently in prison.   We know this to be the case because a few prosecutors in jurisdictions that are not hostile to Innocence Projects have shared this casually with some IP attorneys and asked for assistance in figuring out what should be done when this happens.   So, in other words, some police and prosecutors in some jurisdictions are starting to create a game plan for how to handle such scenarios.  Petro and I naturally figured that if this is happening in other jurisdictions, it must be happening to some degree in Ohio as well.  But no law enforcement authority in Ohio has revealed any such cases of DNA matches publicly.  So we asked for a meeting with DeWine to discuss this phenomenon and ask that he consider creating a task force or some other procedure to objectively examine these cases when they occur to see if the inmate is legitimately in prison or might actually be innocent.

In any event, after we finished speaking, the assistant AG in the room piped up and expressed that he was quite offended that we thought a task force or “objective committee” would be needed, and that we would dare suggest that “any” prosecutor who received information that a new arrestee’s DNA matched the DNA from an old crime scene would not “do the right thing immediately.”  This, again, reflects someone who is well-intentioned, but is totally ignorant of the problem, and someone who assumes that creating procedures to ensure objectivity is an offensive slam against his profession.  I answered, “Yes, I am suggesting that they might be less than objective.  But not because they are corrupt and want to keep an innocent person in prison.  But because history has shown that prosecutors are human too–they are capable of suffering from tunnel vision just like everyone else.  Unless prosecutors are super-human and better than the rest of us, we need to have procedures in place to help with objectivity as much as possible.”  I was looked at like I had two heads.

Indeed, if you read the accounts that the Innocence Project has put forth, and that I have put forth in the article here, and that are detailed in publication after publication, and you continue to insist that police officers and prosecutors usually do the “right thing” when faced with post-conviction evidence of innocence, then you are in denial.  You simply haven’t made enough of an effort to study the cases and review the evidence.

Suggesting that police and prosecutors are human is not an attack on them.  We all–including Innocence Project attorneys, of course–can suffer from tunnel vision and fail to objectively evaluate facts.  That’s why we have to create organization cultures of admitting mistakes and double-checking facts without being defensive, and of being open-minded to confrontation and new realities that might conflict with long-held beliefs.

The reason why police and prosecutors have been hit hard in the media and scholarship for tunnel vision is not because they are the only human beings who suffer from it.  Rather, it is because they, as a group, have been strongly resistant to any institutional changes to combat it, or have remained completely naive to the problem despite mounting evidence that it is a serious problem.

But the biggest reason that cops and prosecutors have been targets of tunnel vision criticism is because their jobs are so important.  Unlike most professions, when an otherwise good cop or prosecutor fails to respond properly to post-conviction evidence of innocence because of tunnel vision, lives are destroyed, families are ripped apart, and the true murderers and rapists remain free to commit more crimes.

So even if it is offensive to you, Kristen Ziman, you and your department deserve high praise.  You have, whether you are aware of it or not, created a culture of openness and objectivity that has proven to be contrary to unchecked human nature.  You and your department are a model for the culture and attitude that other police departments, prosecutors’ offices, businesses, law firms and Innocence Projects should strive to emulate.  You are so good that you don’t even know how good you are.

If you would like to do more, you could help by learning about this problem, and then spreading the word, so that you can help police departments and prosecutors offices around the country to openly discuss, and come to terms with, this problematic issue.