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An Rx to heal the criminal justice system

January 30, 2015

From the Penn Law Journal Fall 2014 issue

By Fredda Sacharow

In the early morning hours of Jan. 16, 1985, four policemen entered the New Orleans home of John Thompson’s grandmother. As the horrified elderly woman watched — along with Thompson’s girlfriend and their 3-year-old son — they handcuffed the 22-year-old African-American youth and hauled him into custody for the murder of a well-to-do New Orleans hotel executive.

The only problem was that Thompson had not committed the murder. For Thompson, it was the start of an 18-year odyssey in prison — 14 of them on Louisiana’s death row — as he struggled to prove his innocence.

After a trial and 14 years of appeals, Thompson’s final appeal was rejected by the U.S. Supreme Court in 1999. Weeks before his execution, private investigators found results of a blood-typing test that had been withheld by prosecutors. The blood test, along with other newly discovered evidence in possession of the New Orleans Police Department, ultimately led to Thompson’s retrial and acquittal on all charges.

Now think about how different the outcome could have been for Thompson and thousands of others like him if a systemic model had existed that is better equipped to handle complexity than the current case-by-case approach, which for all its good intentions, has the potential to go horribly, lethally wrong.

John Hollway C’92, author of an acclaimed book on the Thompson case, has thought about it. Putting into practice what he learned from the case, Hollway is now leading a significant reform effort as the first executive director of the Penn Law-based Quattrone Center for the Fair Administration of Justice.

“You can think of it as a startup in the field of criminal justice reform, and every startup needs an audacious goal,” Hollway says. “Our audacious goal is to create a criminal justice system that doesn’t need an appellate system, because we get the right guy, in the right way, every time. If we do that, wrongful convictions will vanish.”

That’s the mission of the Quattrone Center, which has brought together Penn faculty from throughout the University, including Law, Criminology, Medicine, Wharton, Social Policy & Practice, Nursing, Engineering and more in the pioneering application of a “systems approach” used successfully to reduce errors in healthcare and aviation.

With a transformative $15 million gift to the Law School from The Frank and Denise Quattrone Foundation, of which Frank Quattrone W’77 and his wife, Denise Foderaro SAMP ’78, are trustees, Hollway is overseeing the creation of a new national research and policy think tank whose goal is at once lofty and daunting: to be the catalyst for long-term structural improvements to the U.S. criminal justice system from top to bottom.

“The National Registry of Exonerations has identified almost 1,450 cases where innocent individuals have been incarcerated and had their convictions overturned, but no one really knows just how many innocent people are in prison, or how many people who actually commit crimes get away with them — and both are errors in the system,” says Hollway, who explores the Thompson case in Killing Time: An 18-Year Odyssey from Death Row to Freedom.

Although the cases that receive the most newspaper ink or air time frequently involve murder, the Quattrone Center is looking into the circumstances surrounding all types of crimes committed by all types of alleged perpetrators — and what goes wrong along the way.

“People tend to think that these wrongful convictions only happen to poor people or minorities,” Hollway says, “and many times that’s so. But Frank Quattrone’s case shows it can happen to anybody.”

Quattrone, a high-profile investment banker, took some of the most star-studded names in the tech world public during the dot.com boom, Netscape and Amazon among them. But when federal investigators looked into the activities of his employer, global bank Credit Suisse, Quattrone found himself accused of obstruction of justice due to an e-mail reply he had written endorsing a lawyer’s reminder to his team to follow the company’s document retention policy.

Quattrone and his family endured four years of highly publicized investigation and scrutiny, during which time he was forbidden from working in his chosen field, and he was convicted of obstruction of justice. His conviction was overturned on appeal and the case was reassigned to a different judge “in the interests of justice,” an unusual and telling step for an appeals court that needed to ensure that his case received an unbiased hearing. Ultimately, all charges were dropped, and a securities industry ban against Quattrone, imposed by regulators, rescinded. He has resumed his successful career in the banking field, but the experience left its scars.

“Frank and Denise and their family know firsthand that the criminal justice system doesn’t always make the right decisions for the right reasons,” Hollway says. “It says a lot about them that after going through their ordeal, they didn’t remove themselves from the system. Instead, they looked around and thought, ‘How can we prevent what happened to us from happening to others?’ “

The day of Frank Quattrone’s conviction, the couple read a story in a local newspaper in California about a man who had been exonerated after 20 years in prison. The story showed that this was far from an isolated case, and it struck a chord with the Quattrones, who were compelled to conduct their own research, which educated them about the magnitude of the problem. It didn’t take long for the Quattrones to approach Penn with a proposal to create a data-driven, interdisciplinary center geared to a sweeping reform of the criminal justice system through the systemic prevention of unjust outcomes.

“The great thing about being here at Penn is not only do we have access to a host of world-renowned legal scholars, but in the four-block radius around the Law School, we have access to interdisciplinary researchers who are world-class across the board,” says Hollway, who graduated from the University in 1992 with a bachelor of arts in diplomatic history and East Asian studies before going on to the George Washington University Law School.

The ultimate goal of the Center, he says, is to create a set of guidelines covering best-practice procedures for conducting a line-up, charging a jury, overseeing custodial interrogations, ensuring a scrupulous chain of custody for evidence — all the dozens of steps up and down the criminal justice ladder — and then to collaborate with jurisdictions to embrace them.

The Center is already working with a number of jurisdictions to implement best practices in eyewitness identification, and has partnered with several district attorneys who want to correct past mistakes and prevent future ones using objective, scientifically proven tools of Root Cause Analysis that optimizes operational procedures to improve the reliability and safety of a system. And recently, the National Institute of Justice selected the Quattrone Center and several agencies in Philadelphia, including the Philadelphia Police Department, District Attorney’s Office and Court of Common Pleas, to participate in a pilot program that will apply its pioneering approach to reducing error in the criminal justice system.

Stephanos Bibas, a professor of law and criminology at Penn and director of the Supreme Court Clinic at the Law School, is a faculty member with the Quattrone Center. A former federal prosecutor with the Southern District of New York, he has been up close and personal with the criminal justice system, and has seen firsthand both its strengths and its flaws.

“We place a lot of confidence on eyewitness and informants’ testimony, but no one has actually ever tested it systematically,” Bibas says. “I, like everyone else, assumed the system worked well. It was intuitive.”

But as the legal scholar points out, it is not infallible.

“Over the last decades, our confidence in the system has been shaken. It’s still probably true that most of the people we arrest and convict are guilty, but it’s troublesome how many aren’t,” Bibas says. “Virtually everybody wants to get the right guy, but we have too much faith in our ability to look someone in the eye and tell whether he’s telling the truth … or not.”

He and others involved with the center believe criminal justice lags behind other fields by years, if not decades, in creating institutional guidelines for examining where things can go wrong.

As far back as the 1930s, the aviation industry created a pilots’ checklist designed to minimize accidents, and over the years created standardized procedures for determining why a plane crash took place: studying black box recordings, combing through wreckage on the ground, conducting detailed audits.

Medicine, too, has its hospital review boards and its comprehensive pre-surgery checklists aimed at guaranteeing that the orthopedist doesn’t set your left wrist if the right one is broken.

These approaches have shown demonstrable results, Hollway says, pointing to statistics from the Federal Aviation Administration showing the accident rate per 100,000 flight miles declining from more than 33 in 1962 to approximately 7 or fewer from 1982 on after stringent self-regulating guidelines were put in place.

As Hollway explains, the National Transportation Safety Board deploys a team of interdisciplinary experts who study everything from the engineering of the plane to the design of the runway to the sleep records of the people involved to the certification of every mechanic who worked on the plane.

“When we convict the wrong person, or when we have the right person in custody and let them go, that’s the criminal justice system’s equivalent of a plane crash,” Hollway says. “We think we can greatly improve the ‘safety’ of the criminal justice system if we approach our mistakes using these same principles.”

David Rudovsky, a member of a core group of Penn Law faculty members at the Center working to develop research programs and protocols, has witnessed the failures of the criminal justice system in his work as a civil rights attorney.

In a high-profile case that ended successfully earlier this year, Rudovsky worked with the Pennsylvania Innocence Project to help secure the release of two men falsely accused of the 1995 murder of a North Philadelphia restaurant and bar owner.

Eugene Gilyard and Lance Felder were 16 at the time of the killing; they insisted they were not guilty, that the police had used faculty identification procedures. But not until another inmate confessed to the crime in 2010 did they feel a sliver of hope for a reversal.

The Pennsylvania Innocence Project, a nonprofit working to exonerate people convicted of crimes they did not commit and to prevent innocent people from being convicted, took on their case. Lawyers for the project sent a letter to the Philadelphia District Attorney’s Office asking the prosecutor to re-investigate the case, and later petitioned for a new trial.

It would take another three years, but on Nov. 7, 2013, Gilyard and Felder walked out of prison, and on June 18 of this year, the prosecution dismissed all charges against the two men.

Rudovsky, a member of the Innocence Project’s board of directors, says that although DNA evidence was not a factor in their exoneration, the Gilyard/Felder case is representative in many ways of the kinds of errors to which the criminal justice system is vulnerable.

The major causes of wrongful convictions are mistaken identification testimony, false confessions, police and prosecutorial misconduct, including failure to disclose exculpatory evidence, unreliable forensics testimony, and ineffective defense counsel, Rudovsky says.

The Quattrone Center, he says, will study and investigate the causes of wrongful convictions using a “systems” model with the aim of implementing needed reforms in the criminal justice system.

John MacDonald, who has been studying the criminal justice system for almost two decades, believes one of the weakest links in the chain is the point between arrest and actual charges.

“I think this is an area where there’s lots of potential for error,” says MacDonald, chair of criminology and associate professor in Penn’s School of Arts and Sciences. “Much of that is because you basically have a low standard of evidence in charging someone, so people can get arrested falsely and charged on really flimsy evidence.”

MacDonald, who says his role at the center will predominantly involve research, expects to team up with Hollway in the spring to teach a class on conviction integrity.

Although there is some overlap in the work of the Innocence Project and the Quattrone Center, Rudovsky and others on the Center’s team point out that the Center neither litigates nor advocates for clients as the Innocence Project does. Nor does the Center take on individual cases to review.

Rather, as it continues to ramp up, the new unit will bring to bear the unique resources of a major university with an ambitious agenda of research collaborations with criminal justice practitioners, and symposia.

For its first two-day conference last April, the center brought in keynote speaker Christopher Hart, vice chairman of the National Transportation Safety Board, who used case histories of transportation accidents around the world to stress the importance of finding the root causes of such mishaps and making systemic changes, rather than assigning blame.

In some regions of the country, change is already happening, Holloway says, and the center hopes to capitalize on these innovations to create models that other jurisdictions can use. In Dallas, for example, then-newly elected District Attorney Craig Watkins launched the city’s Conviction Integrity Unit in 2007 to root out and fix the wrongful convictions his predecessors had won.

Former federal prosecutor Steven M. Cohen L’88 applauds the creation of these units — he calls them “first-generation second-look bureaus” — but cautions that reformers are likely to face pushback from the law enforcement establishment.

“Sociologists will tell you that once an institution has obtained a conviction, institutional bias is very strong to keep that conviction in place,” says Cohen who watched such a dynamic play out firsthand in the case of two men, David Lemus and Olmado Hidalgo, serving 25 years to life for the 1990 murder of a bouncer at the Palladium, an East Village nightclub in Manhattan.

“I stumbled on this case and I came to believe the wrong people were sitting in jail,” recalls Cohen, now a private practitioner with Zuckerman and Spaeder in New York. “The New York police detectives involved in the case agreed with me, members of my office agreed with me, but the Manhattan DA’s office, which obtained the conviction, had a hard time accepting that they had convicted two innocent men. Here were people who were completely honorable who couldn’t get out of the way of their own bias.”

It was Cohen, who later became secretary to New York Gov. Andrew Cuomo in addition to serving as the governor’s counselor and chief of staff in the Office of the New York Attorney General, who pushed to reopen the Palladium case after a member of a drug-and-extortion gang confessed that he, and not the two men in jail, was responsible for the slaying.

Cohen spent years as a private lawyer seeking to overturn the convictions of Lemus and Hidalgo, ultimately winning the release of one man; the other was acquitted after a retrial.

He acknowledges that change won’t come easy, but believes the Quattrone Center can have a positive impact because of its diverse nature.

“Nothing new in life that is innovative is initially embraced, with the exception of the iPod,” Cohen says, only half-jokingly. “That’s why it’s important to have an interdisciplinary approach. If the recommendations come from a bar association that is perceived as being made of the defense bar, say, it’s far easier for the prosecutor’s office to be dismissive. But if you’re presented with academics, social scientists, former prosecutors who say collectively these are the best practices, that would be much easier to embrace.”

Similarly, John Hollway hopes to win buy-in from both practitioners and the judiciary partly because the center’s approach is not confrontational but collaborative.

“Until now,” the center’s executive director says, “the primary mechanism for redressing any mistakes has been litigation, so you don’t get prosecutors and defense attorneys working together. We’re saying to everybody, ‘Hey, we can help you do your job more efficiently.’ It’s a refreshing change from focusing on blame.”