Reader mailbag: Is *all* the evidence bad? Plus abortion, the January 6th defendants, and favorite cities
My answers to your questions
Here’s a fresh installment of your brilliant questions, and my mediocre answers.
Over the years, you and other critics of the criminal justice system have criticized eyewitness testimony, bite marks, blood spatter, jailhouse informant testimony, false confessions, firearms analysis, hair fiber matching, shoe prints, and even fingerprints. It isn’t that I don’t agree with most of the criticism, but at some point it does make you wonder — if we were to do away with all of these things, would anyone ever be convicted of anything?
So first, you’ve listed a number of issues that vary in their — problematic-ness? — and for lots of different reasons. I don’t think many people would suggest we do away with all of them.
But this is also a good place to start: There are types of evidence have little probative or evidentiary value at all and probably shouldn’t be used. Bitemark evidence is a good example. Also, roadside drug tests, photo analysis of clothing and facial features, probing grammar and word usage for “signs of deception,” 911 call analysis, graphology, and most varieties of blood spatter analysis.
Other types of evidence might help police eliminate some suspects, but shouldn’t be used to “match” crime scene evidence to one person to the exclusion of everyone else. This sort of expertise can be used to help police figure out which suspects they should continue to investigate, but aren’t reliable enough to use at trial. Ballistics matching might be one example, as well as some other types of pattern matching forensics.
The danger here is that once you allow an analyst from one of these fields to testify about eliminating people, prosecutors will argue that when you have a “closed set” of suspects, there’s nothing wrong with letting an analyst tell the jury that they were able to eliminate each suspect from the closed group until just one person remained — and that they could not eliminate that person. Again, this isn’t all that objectionable if the purpose is to help police know where to direct their investigation. But it shouldn’t be used in a courtroom, for this reason: Unless the crime occurred on a deserted island, most closed sets of suspects are only “closed” in the sense that police have designated them closed. Some investigator decided that the culprit had to have been, say, a neighbor, relative, or acquaintance of the victim, or within a certain radius of the crime. We’ve seen more than a few wrongful convictions in which the actual killer wasn’t included in the closed set of suspects designated by police.
Most pattern matching fields of forensics — like ballistics or fiber matching — are entirely subjective, particularly when you get to the very specific details of their testimony that are most incriminating. So if the courts are going to ask juries to rely on these analysts’ judgment, training, and experience in matching things to other things, it only seems fair to ask that they first prove their ability to match said things with blind, scientifically-administered, properly-scored competency tests — tests that accurately reflect how those analysts do their jobs day to day.
We should also insist that they use the proper precautions to guard against cognitive bias, including shielding themselves from contextual information, prohibiting them from discussing cases with law enforcement prior to performing their analysis, and subjecting their conclusions to blind verification by peers or superiors. We should also periodically and randomly send an analyst’s work to another lab for verification.
Moving beyond the more subjective, pattern matching forensic fields, it isn’t that entire categories of evidence should be prohibited from courtrooms, it’s ensuring that the methods we use to generate evidence include safeguards to minimize cognitive bias, tunnel vision, and other types of human error. We need to bar prosecutors and analysts from overstating the significance of such evidence. And we need to be sure that juries are told about its limitations.
Take informants, for example. Juries should always be told when an informant has received some sort of consideration for their testimony be it money, favorable treatment in prison, or time off from their sentence. Juries should also be informed of an informant’s track record. How many times has this particular informant claimed to have heard a jailhouse confession? How many of this informant’s previous tips have panned out?
The records of the police officers and prosecutors who handle informants should be open to scrutiny as well. We’ve learned over the years that some cops and prosecutors seem to have a talent for cultivating informants who give exceptionally damning testimony. Some of those cops and prosecutors also have also had knack for contributing to wrongful arrests and convictions. Their track records should be made available to the defense, and judges should let juries consider those records. We should also bar prosecutors from bringing cases that turn solely on the word of an informant, particularly an informant who cut a deal in exchange for testimony. If you can’t find other evidence, you don’t have a strong case.
Eyewitness testimony? We should ensure that lineups are double blind — that they’re administered by law enforcement officials who don’t know the identity of the suspect. Police shouldn’t tell witnesses that the suspect has definitely been included in the lineup (and occasionally, they should omit the main suspect), and they should never prod a witness to choose from the options in a lineup if the witness isn’t certain. “Filler” suspects should resemble the actual suspect. And police should ask witnesses to give an estimation of their level of confidence after making an identification.
There’s some evidence that sequential lineups — showing witnesses one person or photo at a time — are less likely to result in false identifications than simultaneous lineups, but the research is still mixed on this. Finally, juries should be informed of the fallibility of human memory and the overwhelming number of studies showing that eyewitness testimony is notoriously unreliable.
Confessions? Record all police interrogations. Be extra cautious when interrogating minors and the mentally ill. Train police to refrain from providing information of the crime during their interrogation. Finally — and most importantly —we need to douse the Reid technique in acid, incinerate the remains, set fire to the ashes, and fly whatever is left into the sun.
I’ve written about many, many wrongful convictions for which the evidence against the defendants seemed overwhelming and irrefutable. But after a few exonerations, you start to see how even a well-intentioned but tunnel-visioned prosecutor or police investigator can build what appears to be a formidable case from a deck of cards. You start with your hunch. Prior to the autopsy, you tell a friendly medical examiner exactly what you think happened, which then conditions that medical examiner look for signs that support your theory and overlook anything that contradicts it. You have a similar interaction with a bitemark analyst or a blood spatter expert. Word gets out at the jail that the guy just admitted is wanted for particular murder, at which point you start hearing from informants who swear up and down that your main suspect confessed, and are willing to say as much in exchange for leniency.
None of this requires any ill intent. It just requires some tunnel vision, some laziness, and ignorance of or disregard for what we know about the corrupting influence of cognitive bias.
I also think we need to start thinking differently about the sort of evidence that tends to generate suspects (DNA testing, full-print computer-aided fingerprint matching, surveillance video, police interviews with friends and family of the victim), and categories that tend to reinforce a case once police already have a suspect (like jailhouse informants or ballistics, bitemarks, or hair fiber matching). It isn’t that everything in the former is legitimate and everything in the latter is not, but they serve different purposes, and they require different types of guardrails.
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Why haven’t you written about the January 6th defendants? Are you afraid to stick up for them because you disagree with them politically?
This question wasn’t emailed to me, but I get it quite a bit on social media, typically from MAGA-adjacent conservatives and libertarians. So I think it’s worth addressing.
There is of course something admirable and principled about defending the constitutional rights of people you otherwise find abhorrent. With good reason, people tend to cite the ACLU defending the rights of Nazis to march in Skokie as the sort of Platonic ideal of this principle — which, as a bonus, also gave us one of the Onions’s greatest headlines:
That said, this idea can quickly degenerate into endless demands to performatively denounce every real or perceived slight of everyone with with whom you disagree, or risk being judged for your“conspicuous silence.”
During the Trump administration, for example, I was beseeched to denounce the no-knock raid on Paul Manafort (which wasn’t a no-knock raid), the no-knock raid on Roger Stone (also not a no-knock raid), and the jackbooted document raid on Mar-a-Lago (which was a comparatively calm and non-confrontational warrant service deliberately conducted while Trump was out of town to avoid added embarrassment, for which his security detail — in this case, the Secret Service — was given advance notice, and for which his lawyers were present. I can promise you that your average pot offender doesn’t get that sort of deference).
Over the course of my career, I have regularly reported on and spoken up for people with whom I happen to disagree or find repugnant, but who were abused or treated unfairly by the criminal justice system. So I don’t feel compelled to defend my integrity or principles, here. But I’ll do it anyway!
Let’s start with this: I think every January 6th defendant should be treated fairly and justly. I think each of them deserves a vigorous and zealous defense. And I hope each of them is afforded the dignity and due process denied to lots of other people churned through the criminal justice system.
It’s true that I haven’t written about any of these defendants or reported on their cases. There are several reasons for this. The first is that these cases are already well-covered, and have been as well-documented as any class of related cases in recent memory. There’s certainly been more coverage of these cases than, say, people facing federal charges in connection with the George Floyd protests, some of whom were hit with ridiculous charges of terrorism and sedition. Moreover, among those currently advocating for the January 6th defendants include some of the most powerful politicians in the country. It isn’t as if these cases are slipping under the radar.
Second, thus far, the few times I’ve seen allegations from the right that some January 6th defendant was treated unusually harshly, I’ve briefly looked into it and found the little support for that claim. Most of the accusations leveled by Tucker Carlson example, were fueled by short snippets of video that Carlson had taken wholly out of context (shocker!). Meanwhile, surveys from media outlets like the Associated Press and Slate have found that on the whole, January 6th defendants have been treated better and more fairly, were more likely to be released pre-trial, and have been given lighter sentences than most people facing similar charges.
This isn’t to say that every January 6th defendant has been treated in perfect accordance with the Constitution. I’m sure there have been abuses. But despite what you may have heard, when those abuses have come to light, they’ve been denounced by the very sorts of advocates who January 6-types claim to be be hypocrites ,or whom they blame for their status as “political prisoners” — people like Dick Durbin or Elizabeth Warren, or groups like the ACLU. And again, unlike in most cases, when prosecutors have overstepped, the courts have gone out of their way to accommodate the defendants.
Finally, I’ll readily concede that a big reason I haven’t dropped everything and looked into these cases is that I don’t find the defendants particularly sympathetic. But I also think that’s fine.
Whether they broke a window, beat a Capitol police officer, defecated in the Capitol Halls, or merely chanted on the lawn, the goal of the January 6th protesters was to overturn a presidential election and forcibly impose their preferred president on the rest of the country. They were seeking a historic, unprecedented assault on American democracy that would likely set us down the road to authoritarianism.
Does that mean they no longer have constitutional rights? Of course not. But it also doesn’t mean we need to entertain their claim to be martyrs.
It doesn’t help that prior to January 6th, 2021 nearly all of the rioters and their defenders didn’t give a damn about issues like pretrial detention, jail conditions, solitary confinement, or Brady violations — and beyond their own plight and that of their fellow ideologues, most still don’t.
The abuses perpetuated by the criminal justice are pervasive, systemic, and overwhelming. I have a long and perpetually growing list of story leads, projects, and topics I want to cover. It’s a list I’ll never complete. So while I’ll again reiterate that I hope the January 6th defendants are treated fairly, I don’t feel particularly obligated to drop everything else so I can prioritize investigating and advocating for people who are hostile to me and the work I do, who regularly wish for my death on social media or in emails, who proclaim that I other journalists are “enemies of the people,” who attacked, spat on, and destroyed the property of other journalists covering their attempted coup, and who, for the most part, are still being treated better than people accused of similar crimes.
And I’m fine with that.
I’ve been reading since the Agitator days. Judging from your Twitter timeline, you appear to have changed your mind on abortion. Can you explain why?
Sure. A quick preface: In my blogging days I was eager to cough up my political opinion on just about everything. I guess that’s what you do when you’re young, you aspire to write for a living, and you’re still looking for your voice. As I’ve gotten older, at some point — and perhaps it was reading the opinions of other people who feel compelled to comment on just about everything — I realized that I have a particular area of expertise, and outside of that area few people really want to hear what I think. This is why I haven’t really written about the issue in 15 years or so.
But since you’ve asked, and because the aftermath of the Dobbs decision has now nudged this issue into my wheelhouse, I’ll bite.
The way I actually process the abortion debate hasn’t changed much: I think abortion sits at the intersection of two sets of competing rights: the right of a fetus to live, and a woman’s right to personal and bodily autonomy and to make her own choices about reproduction. My position had been that the right of a fetus to live is all but nonexistent in the weeks after conception, but gradually becomes more compelling as it progresses in development and becomes increasingly human. So while I thought an early-term abortion was fine, I thought late term abortion was far more problematic.
Where I’ve changed is how I weight the competing sets of rights, and how I think we should decide which rights ought to win out. My position had been that because we’re talking about a continuum — pinpointing the moment in a pregnancy for which the right to live of something human-ish becomes more compelling than the right of a full-fledged human to bodily autonomy — abortion was an issue best resolved at the state level, where lawmakers could pass laws that best reflected the values and standards of their communities.
But as we’ve seen in the last couple decades, and then in a much more extreme, accelerated form since the Dobbs decision, conservative lawmakers have made it clear that they have zero interest in that sort of careful analysis. They're recklessly rushing to outlaw all abortion, they’re prosecuting miscarriages, they’re calling for the execution of women who get abortions, and they’re callously passing laws that trespass not just on reproductive rights, but on other types of healthcare completely unrelated to abortion. And as we’ve seen with the results of ballot initiatives in places like Kansas and Kentucky, and in polling data more generally, not only is there little evidence that these politicians are reflecting the values and standards of their communities, they’re often directly defying the will of their constituencies, even in deep red states like Mississippi, Alabama, and Wyoming. Some of these politicians are now clearly now setting their sights on contraception.
In retrospect, it was pretty naive to think it would have unfolded any other way.
The other thing that has changed the way I think about this issue is getting to know women who have had both abortions and unexpected pregnancies, and hearing just how much it upended their lives and careers, or impacted their physical health. This has changed how much weight I've tended to put on the "personal autonomy" side of things.
This too I think was the product of naïveté. I grew up in a very conservative part of a very conservative state. I have no doubt that there were plenty of women I knew growing up who'd had abortions, but it certainly wasn't something people talked about. So I think I was pretty ignorant of and sheltered from the consequences of unwanted pregnancy.
The conservative environment in which I grew up also gave me a skewed view of the frequency and utility of late-term abortion. It’s rare, and typically only performed in medical emergencies. This too probably should have been obvious. Common sense suggest that few women would go to the trouble of carrying a pregnancy seven or eight months only to arbitrarily terminate it near the end.
My position on abortion now is similar to my position on most other basic civil liberties issues -- the right to privacy, personal autonomy, and reproductive freedom is too important and consequential to entrust to the whims and prejudices of politicians.
I know that you often give talks around the country. What are some of your favorite cities and towns? What cities do you hate?
Finally, a controversial question!
Between work and leisure I’ve been to 43 states — all but Maine, Vermont, Rhode Island, North Dakota, Idaho, Montana, and Oklahoma.
I don’t think I can name a place I truly hate. There are some places that I think don’t quite live up to the hype. But everyone has something to offer. I was once doing some reporting in a remote, very small southern town. When I finished interviewing the mayor, I asked for a good spot to get some lunch. He said, “You’ll can go to the restaurant.” I asked which restaurant, specifically. As it turns out there was just one, and it was called “the restaurant.” And it wasn’t a restaurant so much as a private home where a lady served fried catfish out of her kitchen. It was delicious. And I don’t particularly love catfish.
I’ve yet to visit a city or town that I would call irredeemable. You can find something to like about wherever you happen to be — interesting residents, a quirky history, natural beauty, a giant ball of twine.
The obvious exception is Boston. Fuck Boston.*
Anyway, here are some of my favorite places in the U.S.:
Seattle. Ocean, mountains, city, a smattering of islands, and foresty goodness all packed within driving distance of one metro area. Plus, excellent restaurants, fresh seafood, a fascinating convergence of cultures, and the glorious Pike Place Market, one of my favorite spots on the planet.
Chicago. That moment on Lakeshore Drive when the skyline first comes into view is just magisterial. A city of amazing food, a gorgeous lakefront, top-shelf museums, and a living, breathing timeline of American architecture. I’ve done the architecture boat tour three times, now. I’ll probably do it several more.
New Orleans. I like cities with a distinct identity, and there may not be another city in the country as unique as New Orleans. Its fascinating and too often tragic history, evolution, and mottle of cajun, creole, French, southern and have produced food, music, culture, and architecture unlike any other place in the country. And I know you’re not supposed to say this, but when it isn’t party season, the French Quarter is still delightful.
New York. We’ve spent a lot of time in New York over the last several years. It never gets old. The last few times I’ve gone, I had the best Palestinian food I’ve ever eaten, visited a legit Polish deli (complete with a Polish menu), and tried about half the menu at a delightful Syrian/Korean fusion spot run by a Korean and Syrian couple. You could explore new New York City neighborhood every weekend of your life and still leave most of the city untouched. The city is just a beautiful, thriving, always-churning testament to immigration, commerce, community, and human potential. Also, you’re never more than three or four blocks from a great sandwich.
Santa Fe. Another city with a distinct history, culture, architecture, and cuisine. It’s also hard to beat a place that offers the striking hues, gorgeous landscapes, and moody atmosphere of the dessert, but without unbearable heat.
Moab. Not the city so much as its proximity to natural beauty. You’ve got Arches and Canyonlands national parks at your doorstep, and you’re a day trip from Grand Mesa, Bryce Canyon, Grand Staircase, Dead Horse, Capitol Reef, Bears Ears, and about a dozen other state and national parks. Utah is just unbelievably gorgeous.
Other favorites: Homer, Talkeetna, and Denali National Park, Alaska; Bloomington, Indiana; St. Louis and Columbus, Missouri; Asheville, North Carolina; Bisbee, Tucson, and Sedona, Arizona; Kaua’i, Hawai’i; Lafayette, Louisiana; Mobile and Fairhope, Alabama; Clarksdale, Mississippi; Taos, New Mexico; Bryson City, North Carolina; Savannah, Georgia; Minneapolis, Minnesota; Ithaca, New York; Pittsburgh, Pennsylvania.
If I’ve left out one of your favorites, it’s probably because I haven’t been there. Tell me in the comments why I should go.
(*I’m kidding about Boston!)
On the subject of science, if 10 scientists are in a room with a DA, and 9 say "This test is useful for screening, but isn't accurate enough for a conviction", and 1 scientist says "This test is accurate enough to convict", the DA will conveniently never invite the other 9 back. And then once knowledge proliferates among non-scientists that "we have a test", everything gets routed through that test. A non-criminal example would be how coal companies routed all their black lung confirmations through a center at Johns Hopkins to a single "renowned" doctor who magically never saw black lung - even in people who quickly died later of black lung.
Roadside drug tests have NEVER been accurate enough - they are on par with screening tests done in a lab. But in a lab, a positive screening test goes to a far more rigorous confirmation test. And the reason we should worry is because roadside alcohol blood tests are absolutely on their way, and we are absolutely going to see jurisdictions use a screening-level test to convict people of DUI without going back for the far more accurate confirmation test in a lab.
It is going to get worse before it gets better.
Regarding evidence, I'm going to shamelessly plug my Applied Animal Behavior prof, Dr. James Ha, for serving as an expert witness and getting an innocent man out of jail in Macomb County by pointing out all the problems with the K9 evidence, with the caveat that he is there to provide expert testimony, not to get people released. It just so happens that good information often helps defendants.
More generally though, for anyone really invested in understanding dogs, there's a big need for actually trained expert witnesses. The field of Applied Animal Behavior could use more disciples, and it's an extremely rich, rewarding way to explore an interest in animals. I'm still learning and I'm not sure I'll ever be at a true "expert witness" level but it's a worthwhile endeavor.