A wrongful conviction can sometimes result from strategic decisions made by the prosecution. WGBH News' Morning Edition Host Joe Mathieu spoke about this issue with Northeastern University law professor and WGBH legal analyst Daniel Medwed. The transcript below has been edited for clarity.
Joe Mathieu: You published a book people should know about called "Prosecution Complex," in which you claim prosecutors often exercise their discretion in ways that either produce or prolong the conviction of innocent defendants. Daniel, is that because there are some bad apples in the D.A.'s office who don't care about innocent people behind bars?
Daniel Medwed: No, I actually think bad apples are few and far between. The vast majority of prosecutors are devoted public servants who want to put away the bad guys and vindicate the interests of victims. But they're facing a number of inordinate pressures, specifically psychological, practical and political pressures that can nudge them toward being tough on crime and prevent them from looking at these cases with the requisite detachment and equanimity. As a result, good people can make bad decisions.
Mathieu: What kind of bad decisions?
Medwed: [A lot] of them. The one we can focus on is the threshold decision about whether to charge somebody with a crime at all. So prosecutors typically learn about a suspect when an arrest file lands on their laps — the police have arrested a suspect. That file, of course, is structured in a particular way to highlight the evidence against the suspect. After all, the person has been arrested. Now we've all heard the phrase, first impressions are lasting impressions. Cognitive psychologists talk about this in terms of tunnel vision, or confirmation bias. Once you develop a theory, you tend to see all subsequent information through the lens of that theory, and you'll overvalue information that supports it and discount information that cuts against it. So let's say, you don't like Tom Brady and Bill Belichick, you just don't like the Patriots. You might overvalue things like Spy-gate and Deflate-gate, and discount all of the great Super Bowl victories, just because your world view is antithetical to the Patriots. So once prosecutors develop a theory of guilt, they tend to overvalue the evidence that later comes down the pike supporting it, and minimize the significance of evidence that suggests the person is innocent. The upshot is they might charge people with serious crimes based on relatively flimsy evidence.
Mathieu: So you just talked about some of the psychological factors — tunnel vision [and] confirmation bias that can spur prosecutors to make a bad decision. But what are some of the practical or political pressures I think you alluded to at the beginning of our conversation?
Medwed: First, in terms of practical pressures, prosecutors are notoriously overworked and underpaid. I've seen statistics indicating that the average state trial prosecutor closes 90 felony cases a year. We're talking almost two cases a week. And once you're struggling under that burden, the incentive is speed, and you're going to offer plea bargains to resolve them quickly and ideally through a conviction, so that you can seem to have a very high conviction rate. All of your incentives are aligned against taking a deep breath, looking at the case critically, possibly going against the police and declining to prosecute. So those are some of the practical obstacles.
In terms of political ones, chief prosecutors, our county district attorneys, are elected in 45 states in the country including in Massachusetts. Now those elections are almost always overshadowed by higher profile races — gubernatorial or congressional elections — which means that name recognition, party affiliation and really simplistic political messaging often carries the day for prosecutors. And that means the tough on crime mantra can often resonate with people, because most people identify more with being potential crime victims than being criminal defendants. Now to be sure things are changing, because we have a new breed of prosecutors coming to the fore who are much more progressive and reform-minded.
Mathieu: Enter Rachael Rollins, the new D.A. in Suffolk County.
Medwed: Absolutely. Exhibit A: Rachael Rollins rode this wave of progressivism into the Suffolk County D.A.'s office. She's talking very often and very eloquently about how to rectify racial inequities in Boston and how to change the prosecutorial decision-making calculus.
Mathieu: She has not had an easy road, Daniel. She's got a lot of critics around here, too.
Medwed: Change agents and visionaries always get blowback, and I think it's the price she's paying for not being the traditional tough on crime, buddy-buddy with the police type of D.A. And that's to her credit. She's staking out her own territory trying to forge her own path, and I think in the end, I hope, she'll be very successful.
