‘Learned friends’ learn little from errors

Andrew L. Urban

What went wrong? That’s the question that the criminal justice system does not often ask and therefore doesn’t answer when wrongful convictions are revealed.

Prevention is so much better than cure, especially in a legal system which deprives the convicted of resources and the voice to be heard. The resistance to learning from mistakes prior to trial is compounded by a resistance to correct them post conviction.

There is no self correcting mechanism in the criminal justice system, other than an imperfect, slow and combersome appellate process; there is no equivalent to consumer protection that is obligatory elsewhere. Keith A Findlay, co-founder of the Wisconsin Innocence Project argues this very clearly in ‘Learning from our Mistakes’:

“Correcting the criminal justice system is not a defense cause, but a system-wide, even community-wide cause. The goal is not just to acquit the innocent, but also to identify and convict the guilty. All have a stake in this enterprise.
But there is no mechanism at present in most jurisdictions for undertaking this analysis of the system, or even for taking a hard look at any particular wrongful conviction to determine what might have gone wrong. In this regard, the criminal justice system stands almost alone. As Barry Scheck, Peter Neufeld, and Jim Dwyer have written in their book, Actual Innocence, (Doubleday & Penguin, 2001 & updated 2003).

In the United States, there are grave consequences when an airplane falls from the sky; an automobile has a defective part; a patient is the victim of malpractice, a bad drug, or an erroneous lab report. Serious inquires are made: What went wrong? Was it systemic breakdown? An individual’s mistake? Was there official misconduct? Can anything be done to correct the problem and prevent it from happening again?

But not so for the criminal justice system. Only the criminal justice system exempts itself from self-examination. Wrongful convictions are seen not as catastrophes but topics to be avoided. Although a wrongful conviction and lengthy prison sentence, or worse, a death sentence, is a human catastrophe of almost unparalleled proportion, ordinarily no inquiry is made into the causes of the error. Often, the order setting aside the conviction is a one-line order entered in the trial court. Occasionally, an appellate decision addresses the errors in the case. But almost never is there a searching inquiry to determine what led to the errors, and how they can be prevented in the future.” – Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions. Keith A. Findley, University of Wisconsin, California Western Law Review, 2002, co-founder Wisconsin Innocence Project.