...And Justice For All?

Welcome to Kev’s Crime Corner, the weekly articles that investigate, evaluate and educate in the areas of crime, its investigation and the causal factors related to its occurrence. Each week Kev’s Crime Corner will explore the areas of behavioural analysis, criminal profiling, crime scene analysis and forensic linguistics focusing on a specific crime, unsolved or debated case. Kev's Crime Corner will also discuss the judicial problems involved with the justice system. The purpose of Kev’s Crime Corner is to stimulate interest in the truth, logic and investigation towards crime and its many faces.

Kev’s Crime Corner will also explore the media’s strategic depictions of crime through newspaper reports, movies, and television. These depictions have a direct real-world impact on judicial outcomes as well as investigations which often not only give the public false ideas and impressions of what occurred in a given case but also create bias in the collective unconscious through strategic archetypal and ideological misrepresentations. Unfortunately, the media have become the master of puppets of the unconscious minds of the justice seeking uneducated public. The effects of false media depictions have very real negative consequences. This is especially true when it comes to the various notorious trial by media cases in which the suspect becomes the proverbial Frankenstein’s monster of the masses. Such media reports can evoke the public to metaphorically start running through the streets with pitchforks screaming for swift justice against the suggested suspect in a case even before all forensic evidence has been analysed and a credible accurate crime reconstruction has taken place.

All too often the fear of increasing danger and the monsters that the media create can frequently allow both poor investigative efforts to continue as well as unsubstantiated theories of a crime to take the rightful place of the truth. This is true of both newspaper reports of crime as well as true crime representations. Those with a taste for true crime, however, are perhaps arguably more likely to be at least a little critical and investigative in their observations. There are likely to be many future detectives and potential forensic or behavioural scientists among those interested in true crime. The problem is the media often uses so called expert options from selected scientists who may give false credibility to the established unquestioned narrative of a crime. Additionally, the public are not aware that all forensic evidence in a criminal case is not presented in court to juries but rather the selected evidence that fits the desired narrative of the prosecution or defence. Evidence presented to juries is thus at times presented outside of the broader context which created it.

Such experts may also misrepresent statistics presenting possibility as probability. Additionally, the media frequently seek to evoke emotive bias and outrage at the media’s new fear generating still at large monster (be it a group or individual) suggested to be endangering vulnerable members of society. As a result, this allows important reforms towards the law to focus on punishment rather than addressing the causal factors of crime or its correct investigation. Hardly ever do the media present credible causal reasons, declare how they tested their conclusions or present any detailed logical evidence for their claims with counter arguments from alternative forensic experts who may firmly debate the established reconstruction of a crime. In the courts the defence and the prosecution each must present at credible argument for their claims to the jury: the court of public option should be no different. The constant onslaught of strategic media representations involving dangerous threats to society, however, are often so abundant that the public fear towards the suggested threat replaces logic.

The public are largely unaware that even one single piece of withheld forensic evidence in a case can totally unravel the established narratives of a crime. The media, however, are unlikely to let a little thing like suppressed, unexamined or untested evidence spoil their evocative reports. After all, the heuristic stimulating emotive appetite of the human limbic system loves an at large invisible monster to fear but arguably nothing gets the old human brain’s hippocampus going in the public more than a demonised monster captured and about to be punished. The problem is that the fear of an invisible monster is often not as dangerous as the media itself because as the principle of modern journalism states "if it bleeds...it leads." Often fear and outrage driven by media reports cuts the neocortex's logical reasoning out of the public's conclusions regarding a reported crime's reconstruction. Adding to this problem is the fear of lawlessness which can further gain political support for capital punishment. Wrongful convictions are, therefore, frequently backgrounded by political campaigns which seek to promote the fear of crime and promote capital punishment as a solution. The investigative issues regarding wrongful convictions ,therefore, remain hidden and practical justice system reform largely remains an oily snake sliding down an ever-increasing political ladder.

This week’s post will be part one in a series of posts looking at wrongful convictions and highlight the crimes of the state as well as the causal reasons found to be involved in false convictions. Attention will also be given to the media’s power to distort and influence the perceptions of the public and additionally cause the continuation of state harm by misrepresenting forensic practices and protocols. The human brain is an adaptive constantly learning system which is subject to many unconscious associations which are embedded in news reports, newspaper articles, movies and television. Entertainment is never simply entertainment. The unconscious associations of what is observed through strategic representation is always connected to emotions and attitudes formulated by media agendas and suggested threats to society.

TV crime shows frequent depictions of law enforcement and their super high tech dedicated forensic teams are also largely nothing but fictional characters with feet of clay. These shows (while arguably highly entertaining) present law enforcement as extremely capable heroic super cops who arrive just in time to save the day or solve a case with a 45 minute show through their highly intelligent deductions. These representations create false assumptions about crime investigation and that all members of law enforcement are expertly trained and knowledgeable about the forensic value of evidence. This is totally false. The author should state here he is not in any way trying to vilify law enforcement but rather is attempting to illustrate that the public assumptions regarding investigations are largely based upon fictional representations of a justice system which rarely fails. The public are also under the illusion that unsolved cases can be solved quickly or by forensic evidence alone. This is also an illusion. The value of any forensic evidence in an investigation is arguably always additionally based upon how the physical evidence relates to the behavioural evidence. This means the behaviour of the victim and the offender enacted at the crime scene must be determined using all the available forensic evidence. As such understanding the behaviour of both the offender and the victim of a crime is vital for its reconstruction. When reconstructions are based upon uniformed unscientific conjecture what results is false arrests and wrongful convictions. Research suggests that the victims of state harm are frequently already at a disadvantage and usually largely unable to defend themselves in the judicial system which gives them little to any chance of resolution once an inaccurate crime reconstruction has taken hold in the minds of jurors. Victims of the state, however, are numerous due to the wide variety of ways state harm can occur. It is, therefore, important to consider what the empirical characteristics of victims of the state share...

Kauzlarich et al. (2001) note those subjected to state victimisation share six key commonalities which are:

1. Victims of state crime tend to be among the least socially powerful actors.

2. Victimisers generally fail to recognise and understand the nature, extent, and harmfulness of institutional policies. If suffering and harm are acknowledged, it is often neutralised within the context of a sense of “entitlement.” (entitlement to appeal for example).

3. Victims of state crime are often blamed for their suffering i.e. “they must have done something!”.

4. Victims of state crime must generally rely on the victimiser, an associated institution, or civil social movements for redress.

5. Victims of state crime are easy targets for repeated victimisation.

6. Illegal state policies and practices, while committed by individuals and groups of individuals, are manifestations of the attempt to achieve organisational bureaucratic, or institutional goals.

Research by Westervelt and Cook (2010) highlights that death row inmates especially those that were later proved to be wrongfully convicted fit these criteria and experience each of these key points during their incarceration. For example, the researchers observed that death row inmates typically hail from poor social and economic backgrounds and have little knowledge of how to navigate the justice system during their trials. It is usual that their legal assistance is often provided by an underfunded court appointed attorney with little resources to supply adequate representation thus making inmates weaker social actors than those without such challenges. Cunningham and Vigen (2002), in their meta-analysis of death row inmate characteristics, note that inmates also frequently suffer from personality disorders and generally have high rates of low IQ which are likely to affect their choice of plea during their trials and cause inmates to fail to see the implications of institutional policies involved in sentencing. A study by Park et al. (2003) also found that death row inmates have developmental backgrounds that have a strong statistically probability that they will end up on death row due to established histories of physical, psychological and sexual abuse in early life. According to several studies by Hurwitz and Peffley (2010), this potential deterministic fate of death row inmates may also be the result of racial prejudice within the criminal justice system. Vogel and Porter (2016), for example, note that one out of every six Hispanic males and one out of every three black males in the US can expect to be incarcerated at least once in their lifetime. In contrast only one in every seventeen white males will share a similar fate. Harris (1999) proposed this racial prejudice may be caused by the race-of-suspect effect with several studies showing that black offenders are more likely to be racially profiled and receive physical force during their arrests. Legal research also points out that a death penalty is even more likely to be given if the offender is black, especially if the murder victim is white (Gross and Mauro, 1989; Keil and Vito, 1995; DamBrun, 2007). Black suspects of a violent crime are also at increased risk of wrongful conviction due to their prototypical black facial features which often cause eyewitnesses to misidentify a suspect both during an investigation and in court proceedings (Kleider-Offutt et al., 2017).

The media appears to be more interested in representing the conflict between races, political groups (or religious minorities) arguably perpetuating further conflict while rarely ever disclosing the socio-economic inequality within society that often perpetuates many crimes. While there are numerous causal factors of criminal activity the crimes of those committed in desperate conditions cannot be fully understood without understanding that society's wealth or its social resources are not equally disrupted or fully available to everybody. As the American Indian proverb highlights "A starving man will eat with the wolf." The socio-economic factors of both the offender and the victim are vitally important to understanding crime and should never be overlooked by investigators. While racial profiling is undoubtedly an important issue this author argues that wrongful imprisonment can truly only occur if there is poor investigative effort made to keep forensic protocols or if little investigative resources are given to correctly examine the evidence of a criminal case.

The most accurate statistical figures indicate that the level of wrongful convictions due to the lack of serious investigative effort is alarming. In their review of wrongful conviction causes, Lindsay et al. (2017) found that eyewitness mistakes are generally a strong causal factor in wrongful convictions with 34% of all exonerations documented in the US and 36.4 % in Canada being due to misidentification. In addition, according to statistical data, out of 4,940,890 convictions each year in the US, 24,704 of those convicted are estimated to be innocent (Friedman, 2012). Despite these figures, in 2014, the national registry of exonerations reported that only 1,352 exonerations have taken place since 1989 (Shannon, 2014). Raeder (2009) also states that although most post-conviction relief to date has been largely due to new DNA evidence, such evidence is estimated to only be present in 10-20% of all cases. Findings by Smith et al. (2011), nonetheless, reveal that police, prosecutors and judges still believe wrongful convictions do not occur with enough frequency to warrant procedural changes, although the majority of defense attorneys, however, are noted to believe that procedural reform is overdue. There are, therefore, empirically valid grounds for both inmate narratives of victimisation and potential wrongful imprisonment.

In their review of the effects of mass media and the death penalty, Lipschultz and Hilt (1999) examined how the media leads the social construction of reality. Their study focused on three executions in Nebraska in the 1990s, whereby the researchers analysed the media coverage of the death penalty from four perspectives:

1. How media organisations’ chosen routines, journalistic beliefs and source selection affected news content.

2. How justice was presented through sets of social symbolism.

3. How the public support for the death penalty in the USA may have led journalists to avoid asking tough questions of public officials.

4. How coverage becomes a social construction of reality that affects future public opinion.

Lipschultz and Hilt (1999) concluded that the media generally either report executions live outside the prison, by showing scenes of conflict between demonstrators allowing an abstract perception towards the extent of the public outcry for and against capital punishment, or alternatively, the media report from the studio, using ‘in-studio’ experts, in order to avoid the idea of public social action altogether.

Using qualitative methods to search for meanings within the interactions of social structure and human agency, Lipschultz and Hilt’s findings indicated that the local media influences public perception. It does this by focusing on the conflicts within public discourse about state execution that convey social activism as a result of public cynicism or political apathy. These conflicts were displayed as ‘collisions’ between the symbols (e.g. religious candlelight vigils contrasting with barbed wire fences and heightened security) and the behaviours of social actors (e.g. the demonstrators’ enthusiastic spontaneous chanting in contrast with the state-focused systematic legal procedure and the news anchors’-controlled sensationalism). The media may thus affect the public’s views about activism towards human rights and social issues, as well as the public’s perception of the death penalty. Frequently protests are framed as attacks against the state and demonstrators often strategically represented as violent or (at minimum) destructive to the moral authority of the state.

The media may also negatively affect a potential death row inmate’s pre-conviction sentencing. Kassin and Wrightsman (1988), for example, established that pre-trial publicity may harm a defendant’s trial, as jurors may become aware of certain case details that have been sensationalised prior to hearing them presented in the courtroom. In addition, experiments using mock jurors have shown that emotionally biasing media reports of a violent crime (e.g. 15 interviews with the victim’s grieving relatives) and factually biasing publicity (e.g. revealing offenders past criminal actions) both negatively affect juror’s final decisions (Kramer et al., 1990). In a comprehensive review of the media’s effect on juror’s decisions via pre-trial publicity, Steblay et al. (1994) conducted a meta-analysis of 44 empirical studies representing 5,755 subjects, and found that subjects who were exposed to more pre-trial publicity (e.g. via newspapers, televised reports, etc.), involving offence details, arrest information and prior offences, were significantly more likely to judge a defendant as guilty, compared to subjects exposed to less or no publicity.

The public’s television viewing habits may also alter judgements of criminals. Haney and Manzolati (1984), for example, conducted a content analysis of several hundred hours of television crime dramas to determine how programs involving evaluations of guilt affected jurors’ judgements. Results found that in 70% of the programs evaluated, the first suspect in the fictional case eventually proved to be the true culprit, and in 90% of cases, the first character arrested proved to be responsible for the offence. Haney and Manzolati’s (1984) findings also illustrated that jurors who watched more hours of crime-related television begin with a presumption of guilt towards the initial ‘real world’ suspect that the media focuses upon, and if this suspect subsequently goes to trial, they are more likely to be convicted. It should be noted, however, that it is not known whether this effect persists in the case of more recent jurors of death penalty sentencing or if these findings are also reflected in more current crime television.

Likewise, Gerbner and Gross (1976) established that the media may also indirectly affect perceptions of the death penalty by means of perpetuating mass fear of violent crimes, which leads to the public’s increased dependence upon established state authority for resolution. While research by Heath and Gilbert (1996) highlights that the extent of public fear towards violent crimes largely depends upon factors such as the media focus on the randomness and location of an offence, the characteristics of a given audience, and the linguistic content of reports, findings by Herkov and Biernat (1997) show that crimes such as serial murder (notably characteristic of many death row offences) produces both more media attention and heightened fear amongst communities. This is particularly the case when media reports contain gruesome details of the crime (e.g. victim mutilations). Tyler and Boeckmann (1997), however, propose that death penalty support is not actually driven by the fear of the crime but by fears of and retaliation for society’s moral decline.

Perhaps the most effective way the media influences the fate of death row inmates is by perpetuating positive death penalty support. Niven (2002) carried out an extensive study of how the media positively frames the popularity of death penalty support. By analysing 160 newspapers drawn from the Nexis regional newspaper database between 1996 to 2001 and using 4,190 articles involving the death penalty, Niven’s findings show that positive support was dominant across the data with articles involving sentencing alternatives, such as life without parole, appearing in only 7% (302) of the articles. Positive support included emphasis on opinion polls, state official endorsements and journalists proposing few elected officials dare take a position against state execution as a result. In order to test the disparity in media coverage, Niven (2002) also conducted an experiment by placing respondents into three groups, with each group being asked to read: 1) an article typical of positive media support for the death penalty; and 2) a realistic article with mixed preferences and a proposed life without parole alternative. Results showed that those who read the realistic mixed account with alternative sentencing became less supportive of capital punishment and believed that the death penalty would become less prevalent in the future. The media’s positive perpetuation of capital punishment support might thus be protecting its unchallenged status in social discourse.

Given the alarming statistical data compiled by Shannon (2014) and Friedman (2012) stated earlier in this post as well as Raeder's (2009) findings towards the lack of DNA evidence available (which may provide post-conviction relief), it is this author’s conclusion that crime scene analysis and ideographic profiling may provide at least a partial solution to the problems the wrongfully convicted face. Ideographic criminal profiling and crime scene analysis can accurately assist investigators or attorneys in establishing a more scientific reconstruction using the available physical and behavioural evidence in a case. For those interested in seeking further information on wrongful convictions the author suggests that the reader consider supporting the efforts made by non-profit organisations which seek to free the wrongfully convicted such as the Innocence Project.

https://innocenceproject.org ( Innocence project USA)

https://www.gre.ac.uk/las/law-criminology/innocence-project (Innocence project UK)

For those interested in seeking the investigative assistance into an unsolved crime or suspected wrongful conviction feel free to contact me at TrueFace Investigations.

Part two of the "...And Justice For All?" Series will focus on some debated cases of innocence and with take close look at the crime scene evidence involved including the forensic linguistic evidence...

Thanks for taking a walk down to Kev's Crime Corner.

References used for this week's article:

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