Remember: You might be wrong

Remember: You might be wrong.

That was an admonition that Federal Judge Russell Smith bestowed on those who entered his chambers.  He was a scholar and an exemplary judge.  The federal courthouse in Missoula is named after him. Remember: You might be wrong.

Words to be remembered by every prosecutor, officer and juror. Sometimes we are wrong. And, the consequences are intolerable. Innocent people jailed.

The presumption of innocence means that it is better for a guilty man to go free than to send an innocent man to jail.

Those values are pillars of our democracy.

I grew up in a family of prosecutors. My great, great-grandfather was the U.S. Attorney for Montana.  My grandfather was Attorney General of Montana. My father was the County Attorney of Cascade County. Two of my children are prosecutors.

My family embraced those values.

In law school, we studied “In Re Winship,” in which Justice John Harlan wrote that “it is far worse to convict an innocent man than to let a guilty man go free.”

Reality check: Our system isn’t perfect;  sometimes we get it wrong.  Innocent people do go to jail.

The National Exoneration Registry tracks exonerations.  Check it out.

Consider this: The Registry identifies 3,847 people who have been exonerated since 1989. Innocent people sent to prison. They served more than 36,004 years in prison. And they were innocent. That is equivalent to sending every person in Dillon to prison. A moral alarm should be going off. This is every prosecutor’s nightmare. It is America’s failure.

Remember the Judge’s admonition: You might be wrong. Turns out: Eyewitness testimony is some of the least reliable evidence possible. Sixty-one percent of the people exonerated by DNA evidence were convicted by mistaken eyewitness testimony.  In robbery exonerations, 86% were convicted by mistaken eyewitness testimony. For sexual assault exonerations, 79% were convicted by mistaken eyewitness testimony.

Crime victims step forward to do their civil duty. Good people. Honest people. And, many times, their testimony and memory are wrong. Today, DNA evidence proves that.

Memory is complex. Someone suffers a traumatic incident. They are questioned, shown photographs, questioned more. Sometimes, the investigative process shapes and changes memories.  Real to the victim, but still mistaken. The result? An innocent person is convicted and goes to jail. And, just as importantly, a victim is revictimized when they learn that their testimony sent an innocent person to prison.

Sometimes there is a juror who isn’t convinced the defendant is guilty. Reasonable doubt. They question if the prosecutor and the witnesses could be wrong. When that happens, the jury room becomes a pressure cooker to get a unanimous guilty verdict.

We should celebrate those who doubt. They keep innocent people from going to prison. Those are the values upon which our democracy is built. As Justice Harlan counseled us: It is better — far better — for a guilty person to go free than it is to convict an innocent person. Let us recognize and honor those who doubt and who stand by their honest convictions when guilt is not proved beyond a reasonable doubt.

Three-thousand eight hundred and forty seven innocent people exonerated. Two hundred and two people on death row. They spent more than 13 million days in jail. Ponder that for a minute.  Millions of days. It is constitutionally intolerable. Consider the cost to taxpayers —  more than $2 billion.  Add to that the cost of compensating the wrongfully incarcerated. But there is more. How many children were wrongfully separated from a parent? Imagine the trauma.

This is part of our America. Part of Montana, where 16 have been exonerated.  Collectively, they served 144.8 years.  In Montana.

We must ask: How can we make our criminal justice system fairer?  What can we do to prevent innocent people from going to jail?

When someone isn’t convinced that a criminal defendant is guilty, appreciate and respect their doubt.  Their doubt is the only safeguard between freedom and prison. Their doubt is the only thing that prevents an innocent person from going to jail.

There are innocent people in prison today. Our justice isn’t perfect.  We must do better.

Remember the judge’s admonition: Remember, you might be wrong.  Too often we are.