Transcriber: Ngoc Linh Trang Dang Reviewer: Claire Ghyselen
I’m going to tell you a story,
and you need to figure out which part isn’t true -
which part, based on your common sense and experience,
just wouldn’t happen the way that I’m saying that it did.
A passenger plane crashes in a field.
The crew and passengers are all killed instantly.
The National Transportation Safety Board, the NTSB, rushes to the scene.
They immediately locate
and recover the flight data recorder
and the cockpit voice recorder.
They then begin collecting all the debris from the plane in the field
that they can find.
In a nearby warehouse, they begin reconstructing all that debris
In an effort to figure out what caused the crash.
After working tirelessly for months and holding many public hearings,
the NTSB issues their report.
They say that a manufacturing defect in the plane,
in a small part of the plane,
caused a chain of events that resulted in the crash.
They say, however, that there’s nothing to fear,
that all the other planes of the same make and model,
even the ones that have that same part that turned out to be defective,
they’re all fine
because it was just the one plane.
Now, which part didn’t seem quite right to you?
I’m guessing you know or you figured it out right away,
so let’s talk about it for a second.
I think we all know that the NTSB
would never say that it was just the one plane.
They would treat the error as systemic by default,
and they would insist that all the other planes of the same make and model,
whether it had that part that turned out to be defective or not,
that all of those planes should be grounded,
that they should all be inspected,
and that they should all have the repair be certified
or an explanation given of why that part didn’t need to be repaired.
And now, treating errors as systemic by default
is one of the reasons - frankly, maybe the reason -
that the airline industry is among the safest forms of travel
and has been for decades.
Now, the criminal legal system, by contrast,
treats its errors in exactly the opposite way.
It treats every error like a one-off, a bad apple.
It’s sort of like a stereotypical policeman at a crime scene,
telling everyone: “There’s nothing to see here. Just move along.”
Now, I came across an example of this phenomenon recently
in one of the cases I was looking at.
I was looking into an old murder case in the 1970s,
and it became clear pretty quickly
that the prosecutor was striking all the available black jurors.
The result was an all-white jury.
The defendant was Black.
I asked a couple of prosecutors what they thought.
And they both said: “Well, he probably had a reason for doing that,”
or: “You know, it’s just that one case; I wouldn’t worry about it.”
So I didn’t really accept those answers.
So I dug a little more.
And I quickly found four or five other cases
from the same county, from the same time period,
where essentially the same thing was happening.
Black jurors were being struck to get all-white juries
that ended up trying cases of all the Black defendants.
Now, I knew an attorney at around this time,
or I had met an attorney from around this time
when I was looking into that case,
who’d been a prosecutor in a different county
way back when in the ’70s.
And I asked him about it.
And he said: “You know,
it was just the way things were done at the time.”
He goes: “If I had a domestic violence case,
I could strike all the women.”
He goes: “If it was a criminal case
with a Black defendant,
I’d strike all the Black jurors.”
He goes: “I know it was wrong,”
and he goes: “I feel terrible about it.”
But he’s like: “At the time, no one even questioned it.
It’s just the way things were done.”
Now, I bring this up for two reasons.
One, I bring it up to show how quickly one case, with a little digging,
turned into four or five more.
And then with a little more digging, sort of asking around,
turned into potentially many, many more cases.
The other reason I bring it up
is to show how deep the roots are in the criminal legal system
of this kind of conduct.
And that when you start to challenge it,
when you start to look at it in different ways,
you start hearing excuses or hearing even little whispers in your own ear:
“Well, maybe he did have a reason,”
or: “I don’t know.
You know, maybe it was OK, maybe I’m not reading this right.”
Now, I believe these little whispers exist in our ear for a reason,
and that's to make things less scary.
Because if something’s a one-off, if it’s an exception,
then it's much less scary to humans.
than if something’s the rule, the way things are.
But these whispers in our ear,
they play on our fear and emotions and our ignorance,
which is why they can’t stand facts and truth.
And what they really can’t stand
is when you start talking about statistics,
start talking about the broader brush of this kind of conduct.
And for that reason, let’s talk about some statistics.
A 2017 study of the National Registry of Exonerations
found that Blacks who were convicted of murder
were 50 percent more likely to be innocent than whites who were convicted of murder.
Fifty percent.
What would those little whispers say to that?
Probably something like: “You know, murder’s different.”
But is it?
Well, let’s take a look at illegal drug possession.
Studies have shown for decades
that Blacks and Whites use illegal drugs at almost exactly the same rates.
The 2017 study by the National Registry of Exonerations
found that despite using illegal drugs at the same rates,
Blacks were five times more likely to be found guilty of illegal drug possession
than Whites.
And if that Black person was innocent,
they were 12 times more likely than an innocent White to be convicted.
What are those little whispers saying now?
What do those little voices say?
Probably something like: “We’re doing the best we can.”
But are we?
A 2020 study of the National Registry of Exonerations
found that in 54 percent of the cases that they studied,
the reason for the conviction was official misconduct.
Fifty-four percent.
The number one reason they found in 44 percent of the cases
was the failure to turn over exculpatory evidence.
That’s evidence that would show the defendant is not guilty,
that he’s innocent.
Police officers were responsible for 35 percent of the misconduct.
They were responsible for most of the misconduct during interrogation,
the most witness tampering,
and a fair amount of the failure to turn over exculpatory evidence.
Prosecutors were responsible 30 percent of the time.
They were responsible
for most of the failure to turn over exculpatory evidence
and misconduct at trial.
What does this all mean?
Where do we go from here?
I believe -
we’re certainly not going to solve this problem at a 10-minute TED Talk -
but I believe that we have to understand that the system is set up this way.
It’s not flawed;
it’s functioning exactly as it was intended.
And because of that,
we can’t just allow it or hope that it changes by luck
into something that treats everyone fairly.
We’re going to have to do that deliberately and methodically.
And I’d suggest -
now, again, we’re not going to solve this in a 10-minute TED Talk -
but I have a couple of suggestions
about good first steps to take to start this process.
I call them: “Nobody’s Perfect,”
“More than Meets the Eye,” and “The A-B-C’s.”
When we’re young,
we’re told that nobody’s perfect because everybody makes mistakes.
And this has important consequences at a criminal legal trial
that you’re maybe not understanding,
and that it’s very important - critical, actually - to understand.
Even if everyone who’s involved in a trial -
the prosecutor, the witnesses, the judge,
the defense lawyer, the court officers, the jurors -
even if everyone is educated, experienced, well-rested,
committed, like they’re well-intentioned,
even in those ideal circumstances,
wrongful convictions can and do still occur.
And this happens because - because we are imperfect,
anything we create, any organization or process we create,
is also imperfect.
So as I said a moment ago, it’s critical to understand -
and personally, I believe it’s really the critical first step -
is to understand that wrongful convictions occur even under ideal circumstances.
Now, once you understand this,
the next step is what I call: “More than Meets the Eye.”
And like my example from a few minutes ago,
where that one case turned into four or five
and then turned into potentially many, many more,
we have to start looking at cases like the NTSB treats a plane crash
and instead treat it systemic by default rather than treating it as a one-off.
And that’s where: “More than Meets the Eye” comes in,
that instead of seeing one case and seeing one case,
when we see that one case and we see the error,
we have to automatically assume
there are hundreds, if not thousands, of cases just like it,
with the same error.
And when we start to do that,
when you start to see wrongful convictions happen,
you know, under ideal circumstances, and they happen at scale,
you then need to start to address
the biases that you bring to this analysis.
And that’s where “The A-B-C’s” come in.
“A” is for “Assume Nothing,”
“B” is for “Believe Nothing,”
and “C” is for “Challenge everything.”
Now, look, we all have a load of biases.
There’s some we realize that we have,
and there’s a whole bunch that we don’t even realize.
So eliminating them is just not going to happen;
it’s just not realistic.
But what we can do
is we can adopt processes that try to minimize them and reduce them.
And that’s this “A-B-C” concept that I use.
Now, you need to assume -
“A” - assume nothing.
You can’t assume people have a good reason for doing something,
“B” - believe nothing.
Just - if it’s not corroborated, if you don’t see it,
If there’s not some evidence to support it,
I’m not going to believe it.
Or “C” - challenge everything.
It doesn’t matter who’s involved.
It could be the greatest trial lawyer ever.
You can’t assume that they’re doing the right thing.
You have to challenge their conduct.
Or it could be a police officer who’s got medals and tons of commendations.
But if you see something wrong, you have to challenge it.
It doesn’t matter who it is, doesn’t matter what’s going on.
You have to challenge it.
Assume nothing, believe nothing, challenge everything.
Now, are these simple steps going to cure everything?
No, they are not.
But I truly believe that they’re good first steps
in addressing a problem that’s going to take us a long time to rectify.
And if the goal is to treat everyone fairly -
and I believe it is and should be -
once we start on this journey,
once we start seeing errors in the criminal legal system
that are systemic by default
instead of one-offs and bad apples,
we will have begun the journey to real change.