In Memory of Troy Davis
I was driven to post this in memory of Troy Davis -- and also in anger, in sadness, in intellectual disgust and moral horror. Davis, who was black, was executed just after 11:00 last night for the 1989 murder of white police officer Mark MacPhail. That execution took place despite massive "reasonable doubt" about Davis's guilt, and despite clear evidence of police corruption or incompetence. No clear physical evidence links Davis to the murder. Seven of the nine witnesses who implicated him have recanted and said they made their statements after being pressured and threatened by police. Of the two who remain, one is said to have told multiple people that he was MacPhail's real killer. The police used procedures known to influence the memory of eyewitnesses -- and such memories are famously malleable and unreliable. As Innocence Project Co-Founder Barry Scheck put it, "The identification procedures used to convict Davis would never pass muster today."
The most concise statement I've heard about Davis's execution came to me via Twitter, from a stranger in Georgia, where Mr. Hill lived and died: "If you wouldn't bet your own life that Troy Davis is guilty based on this evidence, you shouldn't be willing to bet his." Based on what I've read, I wouldn't have staked the life of a lab rat on the available evidence against Davis. Yet the state of Georgia, the U.S. Supreme Court, the family of the murdered police officer, and many others were willing to stake the life of a human being.
I am sympathetic to the desire for resolution in the face of fear and grief. But the drive to find the answer too easily becomes the drive to find an answer. Troy Davis was killed by people who found an answer and clung to it; people who refused to entertain the possibility that they were wrong. Yet we know that the justice system is not infallible -- in general, and especially when a black man is suspected of killing a white cop in a state with a long and vicious history of racism. One of the many problems with capital punishment is that it overlooks this fundamental fallibility: it denies the reality that we err, and it makes it tragically impossible to correct our mistakes.
I do not know if, as Davis says, he left this world with a clean conscience. But I do know that, in a different sense, he left it -- and by "it," I mean "us" -- with a sullied one. Reading about his case, it is, I think, impossible not to wonder about the psychological and social forces that permit us to make so many errors, to indulge in so much denial, to risk becoming complicit in terrible miscarriages of justice.
I mulled over those questions in a chapter of my book that concerns a wrongful conviction. This week, in Davis's memory, I'm posting the entire piece here.
"I should not like to be wrong," said Poirot. "It is not -- how do you say? -- my metier."
-Agatha Christie, The Murder of Roger Ackroyd
On July 29, 1985, Penny Beerntsen and her husband Tom left work early and went to the beach. Their ten-year-old son was playing at a friend’s house that day, but their eleven-year-old daughter came with them. The family lived in southeast Wisconsin, and the beach they chose was in a state park on the shores of Lake Michigan. It was a beautiful midsummer day, and toward the afternoon, Penny decided to go for a run. She jogged north along the water for three miles, then turned and headed back in the direction of her husband and daughter. When she was about a mile away from them, she glanced down at her watch; it was ten minutes before four o’clock. When she looked up again, a man was emerging from the sand dunes thatrose up behind the beach.
An instant, like an atom, can sometimes split, explosively. Penny knew right away what the man wanted, and, in a flash decision, she made for the lake. She realized too late that the water was only slowing her down; by the time she got back to the shore, the man had caught up with her. When he wrapped his arm in a chokehold around her neck, two thoughts went though her mind. “I remember them very specifically,” Penny told me. “The first was that I needed to stay calm. And the second was, ‘I need to get a real good look at this guy, so that if I survive this, I can identify him.’”
The man dragged Penny into the sand dunes, told her he had a knife, and demanded that she have sex with him. She resisted, first by talking about her family – her two young children, her husband who would come looking for her soon – and then by fighting back. The two were face to face, and, Penny said, “I remember thinking that I needed to draw some blood, to leave some marks on him, and I tried to scratch his face. But whenever I would reach for him, he would straighten his arms, which were longer than mine. And then he started to strangle me.” The man did this three or four times, each time waiting until Penny began to black out and then asking if she was ready to have sex. When she refused and continued to fight back, he became enraged and started slamming her head into the ground, until, finally, she lost consciousness.
When she came to, the man was gone. She was naked and her hands were covered in blood. Her vision was blurred, and her speech was impaired, like that of a stroke victim. She began crawling toward the beach on her knees and wrists, keeping her palms away from the sand in case the blood on them belonged to her assailant and could be used as evidence against him. When she got to the water’s edge she called for help. A young couple on the beach spotted her, wrapped her in a towel, and, holding her up between them, started walking her back toward where her family had been.
About an hour had elapsed since Penny had looked at her watch and, in the meantime, her husband had grown concerned. Certain that something was very wrong, Tom Beerntsen called his mother and had her come pick up his daughter, then called the police, and then set off looking for Penny. Partway up the beach he found her – bloody, disoriented, staggering along between strangers. He picked her up and ran back to a waiting ambulance, which rushed her to the nearest emergency room. By the time they got there, the police had already arrived. When the medical staff took a break from stitching cuts and taking x-rays and conducting the rape protocol, a sheriff’s deputy asked Penny if she had gotten a look at her attacker. By this time her speech had come back. Yes, she said, I sure did.
The word “witness” derives (obviously enough when you think about it, although I for one never had) from the word “wit.” Today we mostly use “wit” to describe a sharp sense of humor, but before that it referred to the mind – the meaning we invoke when we talk about keeping our wits about us. And before that, back when the word “witness” came into use, “wit” simply meant “knowledge.” We occasionally hear shades of that meaning today, too, which is why doing something unwittingly means doing it unknowingly.
A witness, then, is one who knows. This is an etymological fact, but also, and more profoundly, a psychological one. As we have seen, we take it for granted that we are authorities about events that we ourselves beheld or experienced. Like Wittgenstein’s two hands, the things we see with our own two eyes do not seem open to debate. We treat our life experiences, like our mathematical axioms, as givens – not as things that require verification, but as the foundation on which we build the rest of our knowledge of the world.
This use of private experience as a warranty of truth is elevated and formalized in the domain of the law. (And in my own domain. Journalists rely heavily on first-person reports to lend immediacy and legitimacy to their stories: hence all those bystanders providing “eyewitness accounts” on the evening news.) Eyewitness testimony is among the oldest forms of legal evidence, and by far the most compelling. In fact, only within the last twenty years or so has another kind of evidence emerged to challenge its authority: DNA testing.
DNA testing is not infallible. Any process controlled by human beings can be derailed by human error, and genetic testing is no exception. Biological material can be lost, mislabeled, or contaminated; lazy or incompetent technicians can bungle the tests; unscrupulous investigators can skew the results. But, given a system of checks and balances to detect and prevent these problems, DNA testing is the closest thing the legal system has to a silver bullet. It is relatively simple, totally replicable, has a very slim margin of error, and – unlike blood-typing and other earlier scientific evidence – it provides a virtually one-to-one match between the biological sample and the person from whom it came. (This is, after all, the same technology we trust to establish paternity and to ensure safe matches in organ donation.) It has been called, not without cause, a “revelation machine.”
The introduction of DNA testing into the judicial system has created something of a standoff between one of the oldest and one of the newest forms of evidence. As judges and juries grow more educated about DNA, the science is starting to prevail, and seems certain to win out in the long run. But eyewitness testimony remains powerful, and, in those cases where no DNA sample is available, it carries the day. Of all the kinds of evidence presented in court – physical evidence, biological evidence, character evidence, expert testimony, written documents – a confident eyewitness remains the single most powerful predictor of a jury’s final verdict. Nowhere is our faith in the accuracy of our own experience more explicit than in the courts, and nowhere is it more consequential.
Yet consider what happens when we actually bear witness. In 1902, a heated argument between two students in a college classroom turned violent. One of the students pulled a gun on the other, the professor leapt in to try to subdue him, and, in the ensuing chaos, a shot was fired. This was in the days before school shootings were all too common, but even by those bygone standards, this one was particularly unusual: it was fake. The whole thing was choreographed by a professor of criminology at the University Seminary in Berlin named Franz von Liszt. After the putative gunmen was led away, the shaken students were asked to provide individual accounts of what had happened, giving as much detail as possible. Von Liszt then compared their accounts to the actual script of the event, which the actors had followed to the letter.
The results of this study were disturbing then, and they remain so today. The best eyewitnesses got more than twenty-five percent of the facts wrong. The worst erred eighty percent of the time. As another professor who had observed the experiment wrote, “Words were put into the mouths of men who had been silent spectators during the whole short episode; actions were attributed to the chief participants of which not the slightest trace existed; and essential parts of the tragi-comedy were completely eliminated from the memory of a number of witnesses.”
In staging the first empirical study of eyewitness accuracy, von Liszt made a dramatic contribution to both psychology and criminology. (And to pedagogy, since variations on his experiment are now staples of introductory psychology courses.) His study has been replicated countless times over the last hundred years, with no measurable improvement in eyewitness accuracy. Yet these experiments have had virtually no impact on our intuitive faith in first-hand accounts, and scarcely more on their legal standing.
Still, they underscore an important fact, one that has cropped up in different guises throughout this book: the sheer persuasiveness of first-person experience is not a good indicator of its fidelity to the truth. It’s as if we forget, when we are under that spell, about the other possible meaning of “first person.” Taken in a different context – in literature – it means almost the opposite of unassailable authority. It means limited omniscience. It means unreliability. It means subjectivity. It means, quite simply, one person’s story.
After Penny Beerntsen was transferred from the emergency room to the main hospital, a police artist came to her bedside and, in the presence of the sheriff, made a drawing based on her description of her assailant. “Immediately after he was finished,” she recalled, “I asked if they had a suspect in mind, and I was told yes.” The sheriff had nine photos with him, and he placed them on Penny’s bedside table and asked if any of the men looked like her attacker. Penny looked over the mug shots and picked out a man named Steven Avery. By the time she went to sleep that night, Avery was in custody.
Penny was discharged from the hospital the next day. Late the following night, she received an obscene phone call from someone who seemed to know the details of the attack – nothing he couldn’t have gleaned from the newspaper accounts, but still sufficient to alarm her. The next morning she contacted the sheriff’s department to report the call, and the department decided to conduct a live lineup, to make sure they had the right man behind bars. “There were eight men on the other side of the one-way glass,” Penny said. “I was trying to look at each one carefully, like I had with the pictures, and when I came to Steve I had a real visceral reaction. I started to shake, I could feel the color drain from my face, I could feel the hair stand up on the back of my neck.” Penny chose Avery from the lineup. She would identify him once more, on December 9, 1985, when the trial started and she declared in front of the court that she was “absolutely sure” that he was her assailant. The trial lasted one week. At the end of it, Steven Avery was convicted of attempted murder and assault with a deadly weapon, and sentenced to thirty-two years in prison. At the time, he was twenty-three years old.
The trial brought Penny some closure, but, as she tried to return to normal life, she found that she was often angry – not usefully angry, she felt, but unpredictably and uncontrollably so: at her husband, at her kids, at herself. Then, early in 1987, she learned that a nearby university was hosting a talk on restorative justice. An alternative model of criminal justice, restorative justice focuses on the impact of crimes on individuals and communities rather than on the state, and works to bring about accountability, compensation, and reconciliation. Penny attended the talk, and something clicked. She left before it was over and, in the dead of winter, put on a pair of cross-country skis, went to the beach where she’d been assaulted, and had a private reckoning. “I remember saying – just to myself, you know – ‘Steve, you don’t have power over me anymore. And I remember feeling like a huge weight had lifted.” She came back, got trained in restorative justice and victim-offender mediation, and began working in the Wisconsin prisons.
“A lot of my healing took place inside maximum-security prisons,” she told me. “The first time I went there, I thought I was going to see a bunch of monsters who somehow were different from the rest of us. But what I discovered was that at some point in our lives we are all victims, and at other points we are all offenders. Even if our offense doesn’t land us in prison, we all hurt other people.” As a volunteer, Penny served on panels designed to convey to inmates the effects of violent crime on its victims. Her goal wasn’t to make the inmates feel remorse for its own sake; it was to help them accept responsibility for their actions and do something meaningful with the rest of their lives. “None of us can take back what we’ve done in the past,” she said. “So the first thing I’d always tell them is that the most meaningful apology is how you live the rest of your life.” But if the past can’t be changed, it can’t be denied, either – and so, in panel after panel, Penny talked about the importance of admitting mistakes.
While Penny was working in the prison system, Steven Avery was working to get out of it. After the guilty verdict – he had pled innocent – his family started a Steven Avery Defense Fund. His lawyers challenged the conviction, but it was upheld by the appellate court. The defense appealed that ruling, too, but the Wisconsin Supreme Court declined to hear the case. For a long time after that, it seemed like Avery had run out of options. In 1985, DNA testing was all but unheard of in the United States; the only physical evidence presented in the original trial was a hair found on Penny’s shirt, which the prosecution claimed was microscopically (not genetically) consistent with Avery’s. But as the years passed, the forensic use of DNA became more common, and in 1996, Avery successfully petitioned the court to reexamine the biological material in the case. Using technology that would be considered primitive today, a crime lab tested fingernail scrapings taken from Penny in the hospital and found three different samples of DNA. One belonged to her, another was ambiguous, and the last didn’t correspond to Penny or Avery. A judge ruled that the findings were inconclusive, and Avery remained behind bars.
The appeals and hearings were hard on Penny, primarily because they kept dragging the assault back into the foreground of her life. From time to time, though, she was also given pause by the sheer doggedness of Avery and his family. “I’d been working with inmates, after all,” she recalled, “and I’d seen that at some point most of them just gave up their appeals. So I remember wondering, why is this guy so persistent?” Then, in 2001, she learned that the Wisconsin Innocence Project – part of a national organization that uses DNA evidence to overturn wrongful convictions – had agreed to take Avery’s case. Penny’s initial reaction was anger: “I just felt like, here we go again, this is never going to end. And if this DNA doesn’t exonerate him or is inconclusive, two years down the road is there going to be another hearing?” But she was also shaken. “I remember going through the thought process of: you know, they probably don’t take every case that crosses their desk. So why did they agree to take his?”
Individual actors can move quickly – in the fraction of a second it takes to glance down at a watch, or to rush towards the water. But systems are often unimaginably slow. In the Avery case, there were delays because of legal issues and delays because of technical issues. There were delays because someone was busy, because someone was on vacation, because newer cases took priority. The months stretched into a year, and then into two, and then into two and a half. Meanwhile, Avery sat in jail, and Penny went about her life – raising her kids, running the candy and ice cream shop she and her husband owned, working in the prisons. Then one day, in the spring of 2003, she opened the door to her house and saw her husband pull into the driveway, followed by her lawyer. When Tom Beerntsen stepped out of his car, he was ashen. Penny took one look at him and understood immediately. “Oh my God,” she said. “It wasn’t him.”
Most victims of violent crimes who have misidentified their assailants – a small and terrible fraternity – have tremendous difficulty accepting their mistake. In 1991, a man named Glen Woodall was released from prison in West Virginia after serving four years of two life sentences for two rapes he did not commit. In Woodall’s case, the workings of justice had gone particularly awry. It was bad enough that the victims, who had barely been able to see their masked attacker, had been hypnotized to “enhance” their memory, a practice dismissed by most legal professionals as manipulative and unreliable. Far worse, though, was this: the conviction hinged on an act of scientific fraud. The man responsible for blood work at the West Virginia crime lab had simply faked the results. Woodall was exonerated by DNA testing and awarded a million-dollar settlement by the state – itself a remarkable acknowledgement of error, since people who have been wrongfully convicted seldom receive significant compensation for their ordeal. Coverage of the case filled the local newspapers and airwaves. Discussion of what had gone wrong dominated the state legislature. Multiple investigative committees were formed. Nonetheless, on the day that Woodall left prison, one of the two victims ran up to the van that was transporting him and, weeping and banging on the door, prevented it from being opened. Despite the discredited scientist, the massive public outcry, the legislative hearings, and the DNA, she remained convinced that Woodall was the attacker she had never seen.
This woman’s response was unusual in that it was exceptionally public – and, in a sense, exceptionally brave. But enduring belief in the guilt of the exonerated is common among those who have faced similar situations. It’s easy to understand why, and impossible not to sympathize. To go through your own terrible ordeal only to learn that you have played a starring role in someone else’s terrible ordeal; to see somebody as the perpetrator of an atrocity only to find out that he is, like you, a victim; to assign all your rage and terror and pain to the wrong person; to have whatever “closure” you may have reached be wrenched open again – who among us is confident that we could face all this with humility, acceptance, and grace? Indeed, who could be expected to? It is far more likely that we would face it awkwardly and in agony; far easier to choose, through denial, not to face it at all.
Denial has a bad reputation. We are quick to sneer at it, to regard it as the last, sorry refuge of those who are too immature, insecure, or pig-headed to face the truth. But, as we see in the story of the rape victim who tried to stop James Woodall’s ride to freedom, denying our mistakes is sometimes an understandable reaction, one that deserves sympathy rather than censure. Denial is not, after all, a response to the facts. It is a response to the feelings those facts evoke – and sometimes, those feelings are simply too much to bear.
This understanding of denial, like so many of our current ideas about human nature, was originally formulated by Freud. Freud defined denial as the refusal to recognize the existence or truth of unwelcome facts, and classified it among the defense mechanisms we unconsciously employ to protect ourselves from anxiety or distress. With various minor emendations, this has been the standard definition ever since. Since 1969, when the Swiss psychiatrist Elisabeth Kübler-Ross included denial in her now-canonic description of the five stages of grief, it has been widely recognized as a normal – even a prototypical – initial response to trauma. Kübler-Ross developed her model based primarily on how people react to being diagnosed with a terminal disease, but it has since been recognized as equally applicable to a wide range of other unwelcome shocks: the death of a loved one, debilitating illness or injury, divorce, loss of one’s job, and so on.
If you don’t have any direct experience with this kind of trauma-induced denial, it is easy to assume that it’s less a deep psychological reaction and more a surface rhetorical reflex: this can’t be happening to me, you must have the wrong person, there’s got to be some kind of mistake here. In reality, though, the denial reaction to trauma is profound and potent. To take a particularly mind-boggling example: at least twenty percent of seriously ill people who are told that they are near death actually forget the news within a few days – a form of denial so extreme that it involves not simply rejecting but entirely obliterating unwanted information.
As Kübler-Ross found, this denial reaction is healthy. (At least at first; eventually, of course, the sick must move beyond denial if they want to cope with their illness, and the bereaved must move beyond it to cope with their loss.) It is a natural reaction to fear and grief, and it serves to soften a blow that would otherwise be too sudden and severe to tolerate. When it comes to the kind of denial people express in the face of devastating news, we generally recognize this protective function, and, accordingly, we respond with compassion. But what about the other kind of denial – the intransigent, infuriating, ostrich-like refusal to acknowledge one’s mistakes?
Here’s the thing: that other kind of denial is not another kind of denial. With error as with disaster, we screen out unwelcome information to protect ourselves from discomfort, anxiety, and trauma. Denial is still a defense mechanism, but in this case, what it defends us against is the experience of being wrong. We’ve already seen that that experience can provoke intense and often painful emotions. And we’ve seen, too, that our beliefs are inextricable from our identities, our communities, and our overall sense of security and happiness. No wonder, then, that any major assault on our beliefs represents a trauma in its own right – one that can arouse denial just as swiftly as any other upsetting event.
I should clarify that I’m talking here about the kind of denial of error that is sincere and subconscious, not the kind that is conscious and cynical. We have all engaged in this conscious version from time to time. Think about the people I mentioned earlier who confessed to sometimes pressing a point in an argument long after they had realized that they were wrong. This is a mild example of conscious denial; we know that we’re wrong, but we can’t quite summon the wherewithal to face it. For a stronger example, we would do well to turn to the arena of politics, which is to denial what a greenhouse is to an orchid: it grows uncommonly big and colorful there. When FDR was campaigning for his first term, he made a speech in Pittsburgh in which he promised, like so many candidates before and after, that under no circumstances would he raise taxes. A few years later, securely ensconced in the White House and facing a wildly out-of-balance budget, he realized he would have to bite the bullet and renege on his earlier pledge. When he asked his speechwriter, Sam Rosenman, how he should handle the reversal, Rosenman reportedly replied, “Deny you have ever been in Pittsburgh.”
Rosenman’s advice was given in jest, if it was given at all. Still, it captures the imperative of denial perfectly: remove yourself as far as possible from any association with error. It also suggests a basic truth about conscious denial, which is that it involves conscious deceit. Likewise, unconscious denial involves unconscious deceit – and in this case, the chief person we deceive is our self. That’s why sincere denial is also known as self-deception; it entails keeping a truth from ourselves that we cannot bear to know.
How we are able to perpetrate a deception against ourselves is a long-standing mystery of psychology and philosophy. To understand what’s so tricky about it, imagine that a couple of your acquaintance, Roger and Anna, are experiencing relationship difficulties: Anna is having an affair, Roger is in complete denial about it. Anna routinely comes home at ten or eleven at night (“working late at the office,” she tells Roger) and goes away alone on the weekends (“visiting old friends”). She spends inordinate amounts of time on the phone, and, when he accidentally walks in on her, jumps guiltily, changes tone, wraps up the conversation immediately, and reports that she was talking to her mother. When Roger goes to use their computer one day, Anna’s email account is open and he glimpses a line of an email (not to him) that reads, “Darling, when can I see you again?” – a question he dismisses as an affectionate inquiry to a friend. You and other well-meaning friends try, gently, to put him on his guard. But, despite ample evidence that he should be nervous, Roger is certain that Anna would never cheat on him.
From an outside perspective – yours, say – it’s easy to see that Roger is in denial about Anna. His faith in her fidelity, while touching, is simply wrong. It’s also easy to see how Anna could deceive him (although she doesn’t seem to be doing a very good job of it). Her boyfriend doesn’t have any direct access to her inner world, after all, and she is free to keep her real feelings, desires, and actions to herself if she chooses. But it is much harder to understand how Roger could deceive himself. To protect himself from information about Anna’s affair, he must know enough to avoid it – enough not to read the rest of that email, ask too many questions about her weekend, or surprise her at the office late one night with takeout food and flowers. But if he knows enough about what’s going on to carefully avoid it, how can he simultaneously not know it? As Sartre wrote, to be self-deceived, “I have to know this truth very precisely in order to hide it from myself the more carefully.” To be in denial, then – to not know things that, given the available evidence, we should know – we must be both the deceiver and the deceived.
How does the human mind manage this? Most observers have suggested that it can do so only by dividing itself. Plato, Aristotle, Augustine, and Freud (among many others) all made sense of denial by proposing separate, semi-autonomous, and semi-warring parts of the self: the mind against the will, the mind against the soul, the conscious against the unconscious, the split ego against itself. These descriptions of the self in conflict are fascinating, but in the end, they don’t shed much light on the conundrum of self-deception. As the philosopher Sissela Bok has pointed out, the idea of a partitioned self is only a metaphor. It’s easy to forget this, because it is an unusually goodmetaphor – so good that, somewhere along the line, it started to seem like a literal description of how we function. But notwithstanding its hold on our imagination, the idea of a divided self remains an analogy, not an explanation. Our brains are not actually duplex apartments occupied by feuding neighbors, and how we bring about the complicated act of deceiving ourselves remains a mystery.
The chief reason this mystery matters is that it bears on the moral status of denial. If our mind is figuratively divided against itself, with one part oblivious to its errors and the other part actively working to keep things that way, who bears the responsibility for being wrong? Just one part of ourselves – and if so, which one? Or is our whole self somehow to blame, despite being deeply and genuinely in the dark? Or can we not be held responsible for our errors at all when we are in denial? Are we, in those moments, simply victims twice over – once of some hidden part of ourselves, and once of the trauma that made us turn from the truth in the first place?
These questions all add up to the same ethical dilemma: should we or should we not be held accountable for refusing to admit that we are wrong? So far, I’ve presented the case for compassion in the face of denial, on the grounds that it is a natural reaction to trauma. But it doesn’t take much to throw that case into serious question. What about people who deny that the Holocaust occurred? What about former South African President Thabo Mbeki, who, in defiance of the scientific consensus, insisted that AIDS is not caused by HIV and cannot be controlled with antiretroviral medication – a denial that contributed to the deaths of an estimated 320,000 South Africans, the mass orphaning of children, and widespread economic crisis? More broadly, what happens when the refusal to acknowledge error is so extreme – and the consequences of that refusal so grave – that compassion starts to seem like an inadequate, ingenuous, or even dangerous response?
Peter Neufeld is the co-director and one of the two founders of the Innocence Project – the organization I mentioned earlier that uses DNA evidence to overturn wrongful convictions. In addition to trying to free innocent people from prison, he and his colleagues work to improve criminal justice procedures so that fewer mistaken incarcerations occur in the first place. This means Neufeld spends a lot of time telling people that they’re wrong, or that the way they do their work is unjust and dangerously error-prone. As you might imagine, dealing with denial is a de facto part of his job description.
When I met Neufeld in his offices in lower Manhattan, one of the first things he did was walk me through the many different stages of denial he routinely encounters. He was quick to point out that not everyone goes through all these stages, or even through any of them: many people working in law enforcement support the work of the Innocence Project and cooperate fully in its efforts to free the wrongfully convicted. But some don’t, and the depth and scope of their denial can be staggering. That denial begins, Neufeld says, with a resistance to even seeking out the truth: a denial-prone prosecutor will simply oppose the Innocence Project’s request for DNA testing – even though prosecutors themselves use genetic tests all the time to get convictions. (While many states grant their prisoners at least some access to DNA testing, the U.S. Supreme Court ruled in 2009 that convicts don’t have a guaranteed right to such tests.) As a result, Neufeld and his colleagues spend thousands of hours and hundreds of thousands of dollars simply trying to get permission to conduct DNA tests.
Sooner or later, though, a judge will usually approve the request for genetic testing. You might imagine that if the results exonerate the convict, that would be that – but instead, Neufeld told me, prosecutors will often argue that the testing process must have been flawed and insist on redoing it. When those results also clear the convict, an intractable prosecutor will switch gears, concocting a new theory about how the crime was committed that renders the DNA evidence irrelevant. That strategy seldom impresses judges, and at this stage of the game, most of them will order that the convict be exonerated and freed.
The matter doesn’t necessarily end there, though, because judges can’t stop prosecutors from deciding to retry a case. “We’ll be leaving the courtroom after an exoneration,” Neufeld says, “and the prosecutor will say, ‘we still think your client is guilty, and we’re going to retry him.’” Months go by, “and then finally the prosecutor comes back and says, ‘we’re agreeing to dismiss the charges, not because your client is innocent, but because with the passage of time it’s too difficult to get the witnesses.’ Or, ‘we don’t want to put the victim through the hardship of having to testify again after she got closure.’” Such prosecutors give up the case, but not their conviction that they are correct. To the bitter end and beyond, Neufeld says, “There’s a whole category of prosecutors and detectives who still say ‘I can’t tell you how, I can’t give you a logical explanation, but there’s no doubt in my mind that your guy is guilty."
To show you these stages of denial in action, I need to introduce you to Michael McGrath, the former attorney general of Montana. In 1987, a particularly horrific assault occurred in the city of Billings: late one night, an intruder climbed through the bedroom window of an eight-year-old girl and raped her multiple times. The perpetrator, who had left behind semen and pubic hair in the girl’s underwear, was unknown to her victim, and she was able to describe him only in very general terms (blond hair, pale skin, acne). Based on that description, an artist generated a sketch, and a police officer mentioned that it looked like someone he’d busted the week before – a kid who had been fighting with another student in the high school parking lot. That kid was named Jimmy Ray Bromgard, and in short order he was arrested, convicted (on the basis of the girl’s testimony and a state forensic expert who claimed that Bromgard’s hair matched those found on the crime scene) and sentenced to forty years in prison.
In 2000, the Innocence Project took up the case, tested the semen, and determined that it couldn’t have come from Bromgard. Enter Attorney General Michael McGrath. McGrath accepted the DNA results, but he proposed a novel explanation for them. Maybe, he suggested, Jimmy Bromgard is a chimera. In Greek mythology, a chimera is a monster of mixed origins: part lion, part snake, part goat. In modern biology, a chimera is the result of the death, in utero, of one of two non-identical twins, and the subsequent blending of two types of DNA in the surviving individual. Chimerism in humans is extremely rare; a total of thirty cases have been reported, anywhere, ever. Nonetheless, McGrath insisted that Bromgard be subjected to more testing, until his blood, semen, and saliva all proved genetically identical, and unrelated to the material found at the crime scene.
Then things got ugly. The Innocence Project sent the pubic hairs to the FBI to be retested, and those didn’t match either – even though Montana’s own forensic scientist, Arnold Melnikoff, had testified in court that, based on microscopic analysis, the odds of the hairs coming from anyone other than Bromgard were one in 10,000. The DNA mismatch sounded alarm bells throughout Montana, since Melnikoff was no less than head of the state crime lab, and, in that capacity, had testified in hundreds of other cases. An investigation revealed that Melnikoff was scientifically incompetent, had fabricated the hair results, and had lied about them to the jury. Bromgard was freed after almost fifteen years in prison, and he sued the state of Montana over his wrongful conviction.
As part of that lawsuit, Peter Neufeld deposed Michael McGrath – a deposition that turned out to be an unparalleled case study of denial. (It took place at a law firm on a street called South Last Chance Gully. Dickens couldn’t have done better.) In fact, the deposition turns out to be a case study of many of the themes in this book: the rejection of counterevidence, the spinning of wildly elaborate hypotheses to protect our core beliefs, the use of asymmetric standards of logic and reason, and, above all, the prioritization of our own sense of rightness over truth, fairness, honor, and just about any other value you care to name.
McGrath entered the deposition with one unshakable conviction: that Jimmy Ray Bromgard was still the prime suspect in the Billings rape. Maybe, the attorney general proposed, Bromgard raped the little girl but left no biological evidence behind, and the semen and hair in her underwear had come from somewhere else. Like where, asked Neufeld – and here’s where things get so disturbing and bizarre that it’s worth quoting from the transcript at some length:
McGrath: The semen could have come from multiple different sources.
Neufeld: Why don’t you tell me what those multiple sources are.
McGrath: It’s potentially possible that [the victim] was sexually active with somebody else.
The victim, you will recall, was eight years old.
McGrath. [Or] it’s possible that her sister was sexually active with somebody else.
The victim’s sister was eleven at the time of the rape.
McGrath: It’s possible that a third person could have been in the room. It’s possible. It’s possible that the father could have left that stain in a myriad of different ways.
Neufeld: What other different ways?
McGrath: He could have masturbated in that room in those underwear. …. The father and the mother could have had sex in that room in that bed, or somehow transferred a stain to those underwear. … [The father] could have had a wet dream; could have been sleeping in that bed; he could have had an incestual relationship with one of the daughters.
So we have four possibilities: the eight-year-old was sexually active; her eleven-year-old sister was sexually active while wearing her sister’s underpants; a third party was in the room (even though the victim had testified to a single intruder); or the father had deposited the semen in one perverse way or another. Neufeld, clearly somewhat nonplussed, concedes that all these scenarios are hypothetically possible – but, he says:
Neufeld: You have no basis to believe that happened here, do you?
McGrath: Other than I was a prosecutor for eighteen years, and I’ve been in the criminal justice system for twenty-five years. I think it’s a very definite possibility.
Neufeld: That’s the sole source of it?
McGrath: Which is a pretty significant source.
Moving from the biological evidence to the eyewitness testimony, Neufeld and the attorney general discuss the child’s identification of her assailant:
McGrath: I thought it was quite significant identification testimony.
Neufeld: You thought that when a victim says on direct examination that, “I was 60 to 65 percent sure,” and then when asked by the prosecutor, “Putting aside the percentages, how sure are you that it’s Jimmy Ray Bromgard?,” and she says, “Not very sure,” you consider that to be very powerful ID testimony?
I could go on – the deposition runs to 249 pages, most of them sounding much like this – but I won’t. If McGrath’s testimony weren’t so horrifying – if the rape of a child, the reputation of her father, and the freedom of an innocent man weren’t on the line – it would verge on the comedic, sheerly by virtue of its absurdity. If there’s any saving grace to this kind of extreme denial, it is that, as Neufeld put it, “when other people look at this stuff, they go, ‘oh my God, this guy is crazy.’” And they did. Jimmy Ray Bromgard settled his case for $3.5 million. Michael McGrath moved, unsuccessfully, to have the deposition sealed from the public.
What’s scariest about this story is that it isn’t particularly unusual. Neufeld told me countless others much like it. There was the crime-lab worker in a rape and murder case who continued to think that Neufeld’s client was guilty, even though the DNA had excluded him and implicated another man. “I said, ‘What do you mean?” Neufeld asked. “What scientific evidence is there that he did it? What non-scientific evidence is there that he did it?’ And she said, ‘I know he did it. When I testified at his trial, I saw murder in his eyes.’” Or take the story of Calvin Johnson, an African-American honors student and star athlete, arrested in 1983 for raping a white woman, a crime he didn’t commit. When conventional (not genetic) analysis of the pubic hairs recovered from the crime scene showed that they didn’t match Johnson’s hair, the district attorney in the case proposed that they came not from the perpetrator but from a public restroom or the Laundromat where the victim washed her sheets and clothes. That was the moment, Johnson later recalled, when he realized, “He doesn’t care about me, about my life. He just wants to get a conviction.” In that, he succeeded: Johnson served almost sixteen years of a life sentence before being exonerated by DNA.
These lab workers, prosecutors, and attorneys general are not the victims of the crimes they investigate and prosecute. They haven’t been subjected to the trauma of violence and violation, nor to the secondary traumas of the legal and media circuses that so often follow. They are, supposedly, professionals. Moreover, as Neufeld notes, they are professionals who “rely on logic to make a living, who are part of a system that is predicated on the use of evidence and reason to see that justice is done.” So, to be blunt: what on earth is their problem?
The most obvious and least sympathy-inducing answer is that their careers are on the line. (“Prosecutors’ reputations are made on these big cases,” Neufeld said, and they can be unmade there as well.) But another, less contemptible motive for their denial is that these people, too, are protecting themselves from trauma. “It’s very difficult for anyone to admit, ‘Okay, yes, I played a role in convicting an innocent man, of depriving him of his liberty, or God forbid, his life,’” Neufeld said. As nightmares go, the one suffered by the prosecutor in a wrongful conviction is nothing compared to the ones suffered by the victim and the wrongfully accused. But it is a nightmare nonetheless, a recipe for sleepless nights and shattered faith in your work, your judgment, your moral worth. Even when our errors are comparatively anodyne, the experience of being wrong tends to challenge our faith that we are basically good, honest, smart, reliable people. Involvement in a wrongful conviction magnifies that problem a thousand-fold, both because the consequence of the error is so grave and because people who prosecute violent crimes generally see themselves, not unreasonably, as serving the cause of justice.
The trouble is, it can be dangerous to be certain that you are on the side of the angels – especially when you stop acting like it. In the 1980s, a young detective named Margot Hill joined the then-newly-formed sex crimes unit of the Boston Police Department. Hill was, in Neufeld’s words, “a true believer: she saw herself as serving and protecting the rape victims of the world.” Unfortunately, that attitude sometimes clashed with seeing herself as serving truth and justice. Hill had difficulty accepting that any of the men she had come to see as rapists could be blameless – and when she learned, in one case, that the crime lab results exonerated her prime suspect, she buried the evidence and never mentioned it to the DA. The suspect, who was in fact innocent, spent ten years behind bars. To this day, Hill denies that she did anything wrong.
If anyone ever had cause to believe that she was on the side of the angels, surely it was Penny Beerntsen. In the aftermath of her assault, she summoned the strength not just to rebuild her own life, but to help other people repair their own lives as well – and not just any other people, but convicts, including some who easily could have been her attacker. Likewise, if anyone ever had cause to be convinced that she was right, that was Penny, too. From the first moments of her attack, she focused on being able to accurately identify her assailant. Even as he beat and strangled her, she forced herself to memorize his features. Afterward, broken and traumatized and unable to walk, she crawled to the shore on her wrists to preserve the blood on her hands as evidence.
In a sense, then, Penny Beerntsen was primed for denial. She had survived the kind of trauma that makes it an appropriate and even a necessary reaction. Through her conduct both during and after the assault, she had earned (insofar as any of us ever can) the right to feel righteous, and the right to feel right. When the DNA results exonerated Steven Avery, she easily could have turned her back on them. Like so many people who wind up involved in wrongful convictions, she could have remained unmoved by the evidence. She could have continued to insist on Avery’s guilt, and on her own rightness. She could have done all this. But she didn’t.
Maybe it was her personality: conscientious, empathetic, sensitive to injustice. Maybe it was her years of working in the prisons, of learning to see the inmates as people and helping them face their own wrongdoings. Maybe it was the fact that she trusted the science. Probably it was some of all this. At any rate, when Penny Beerntsen’s lawyer and her husband broke the news about Steven Avery’s innocence, she instantly accepted that she had been wrong. And, just as instantly, she plummeted into one of the darkest periods of her life. “This might sound unbelievable,” Penny told me, “but I really feel this way: the day I learned I had identified the wrong person was much worse than the day I was assaulted. My first thought was, ‘I don’t deserve to live.’”
Penny’s sense of horror and responsibility was twofold. The first, obvious part was that she had helped send a man to prison for eighteen years for a crime he didn’t commit. But a second wave of guilt set in later, when she learned the identity of her actual assailant. As happens in roughly forty percent of wrongful convictions, the DNA results not only exonerated the original suspect but identified the real criminal – in this case, a man named Gregory Allen, who by then was serving time for the rape of another woman. That assault had been exceptionally brutal – it had earned Allen sixty years in prison – and, Penny learned, the authorities suspected him of committing eight to ten other rapes in the years between Penny’s attack and Allen’s 1996 incarceration. “I thought about those women all the time,” Penny told me. “Oh my God, how their lives had been changed because of a mistake I’d made.”
In the months and years after Penny acknowledged her error, she would learn a great deal about how it had come about. First there was the fallibility of perception and memory. “Everyone made a big deal about how I had identified Steven three times,” she said – once in the photos she was shown in the hospital, once in the live lineup, and once in court. “But I know now that what the memory experts say is true: you get one shot at it. As soon as I picked out a photo, that became my mental image of my rapist. From that moment on, that’s the face I was remembering, not the face of the man who attacked me on the beach.”
More disturbingly, Penny learned about the many ways the sheriff’s department had poorly served her, Avery, and the cause of justice more generally. They had reinforced her photo selection by telling her that Avery was the suspect they’d had in mind. They had coached her to conceal any doubts she might have harbored. (The first time the district attorney asked her how sure she was about the identification, she’d said ninety percent. His reply, according to her: “when you’re on the stand, you better say one hundred.”) They had admitted conventional hair analysis as evidence in the case, even though the procedure is widely regarded as worthless.
Most egregiously, though, the sheriff’s department had failed to follow up on other leads. One week after Avery was arrested, the local police department had called Penny to tell her they had a different suspect in mind – one who looked a lot like Avery and had been showing increasing patterns of violence. The cops had been tailing him for two weeks, but had been too busy on the day of the assault to track his movements. When Penny relayed this information to the sheriff’s department, she said, “I was told, ‘Don’t talk to the police department, it will only confuse you. We’ll look into this.’ Which I felt was patronizing – like my little female mind couldn’t handle the facts.” She later learned, from a report by the Wisconsin attorney general on Avery’s wrongful conviction, that a police detective had gone to the sheriff to ask if he was considering the additional suspect. The sheriff had replied, “We’ve got our guy,” and declined to investigate the other man. That man was Gregory Allen.
At the time that she learned of Avery’s innocence, though, Penny knew almost none of this. She blamed herself, and set about trying to understand how she could have been so wrong about something so important. DNA exonerations tend to be high-profile, and Avery’s image appeared in the papers and on television almost every day in the weeks after the news broke. “I remember trying to study his face. I would pick up the local paper and look at the picture and even though intellectually I understood, ‘this is not the man who hurt you,’ on an emotional level I still had that visceral reaction. There was still fear there – I would still shake, the hair on the back of my neck would still stand up – because for so many years, the face I saw in my flashbacks and in my nightmares was his.”
Remarkably, Penny didn’t let her fear deter her from making contact with Avery. Almost immediately after the exoneration, she wrote him a letter, in which she apologized as best she could for her mistake. “When I testified in court,” she wrote, “I honestly believed you were my assailant. I was wrong. I cannot ask for, nor do I deserve, your forgiveness. I can only say to you, in deepest humility, how sorry I am.” She also offered to answer, in person, any questions he or his family might have, a standard step in victim-offender mediation. In doing so, she made it clear that, this time, she viewed herself as the offender and Avery as the victim.
Five months later, Penny, Avery, and their respective lawyers met together for the first time outside a criminal court. “I don’t think I’ve ever been so nervous in my life,” she recalled. “I could hear my heart beat. But when Steve came in the room and I stood up and went over and extended my hand, he gave me this hearty, hearty handshake.” Avery is quiet and somewhat learning disabled, and Penny did most of the talking. But she knew he had expressed compassion for her in the past – on the day he was released from prison, he told the media, “I don’t blame the victim; this isn’t her fault” – and she felt that he listened to her with sympathy. When the meeting ended, she went over to him and asked if she could give him a hug. Without answering, he swept her into a bear hug, and, she recalled, “I said to him, so only he could hear me, ‘Steve, I’m so sorry.’ And he said, ‘It’s okay, Penny, it’s over.’ That was the most grace-filled thing anyone’s ever said to me in my life.”
But, of course, it wasn’t over. In many ways, Penny was just starting to come to terms with what had happened. She became friends with the lawyers at the Innocence Project – the people toward whom she had initially felt so much anger – and began to learn more about cases like her own. Before Avery’s exoneration, she said, “I remember watching some cop special on TV about a wrongful conviction and thinking, ‘oh, come on, how often does that really happen?’” Now, she says, she looks at the system differently. “I really believe that 99.9 percent of police would never intentionally target the wrong person, but there can be such a huge amount of tunnel vision.” She knows, because she experienced it herself. “When people would say, ‘Couldn’t Steven be innocent?,’ I would immediately remind myself of all the evidence that seemed to point to his guilt. I fixated on anything that seemed to affirm that I’d picked the right person.” This is confirmation bias at work, and Penny experienced another form of it as well: ignoring or misconstruing any evidence that challenged her belief in Avery’s guilt. At the trial, sixteen separate witnesses had testified that Avery had been at work on the day of the rape, but Penny dismissed their stories as too similar to each other to be believable – an outstanding example of interpreting the evidence against your theory as evidence for your theory instead.
As she learned more about the factors that contribute to wrongful convictions, Penny came to understand, intellectually, how her own mistake could have happened. Emotionally, though, she remained tormented by it. She never forgot that Avery had been confined to prison from the ages of twenty-three to forty-one – the prime of anyone’s life – and she never stopped feeling enormously, oppressively responsible. Finally, she decided to act on the maxim she had always shared with the inmates: the ultimate apology is how you live the rest of your life. Through her friends at the Innocence Project, she began reaching out to other victims who had misidentified their assailants.
One day, she found herself on the phone with a woman who had just learned that the man imprisoned for raping her was innocent. The woman wasn’t in denial, but she was undone by shock and distress. Penny told her that what had happened wasn’t her fault – that it was the job of the police, not the victim, to investigate crimes thoroughly and fairly. She reminded the woman that she had done her best under traumatic circumstances. She acknowledged that the woman couldn’t undo her error or give the exonerated man back his missing years of freedom, but pointed out that never forgiving herself wouldn’t benefit either of them. “And that’s when the light dawned,” Penny told me. “I suddenly realized, Oh my God, I would never judge this woman the way I judge myself. It helped me, finally, to come to grips with it – with the fact that making a horrible mistake does not make me, or anyone, a horrible person.
The story of Penny Beerntsen and Steven Avery, already a tragic and complicated one, has a terrible coda. In March of 2007, less than four years after he was released from prison, Avery was arrested, tried, and convicted for the 2005 murder of Teresa Halbach, a 25-year-old Wisconsin woman. It is the first and only time in the history of the Innocence Project that an exoneree has gone on to commit a violent crime.
When I first learned of the conviction, I thought I would leave Penny’s story out of this book. This was, above all, an emotional reaction: I didn’t want to write about the murder, I didn’t want anyone close to the victim to have to face additional media coverage, and I didn’t want to reduce Halbach’s entire life and death to an epilogue in someone else’s story. But it was also a political reaction. I believe in the work of the Innocence Project, and I worried that drawing attention to Avery’s radically atypical story would bolster the already-widespread conviction that there are no innocent people behind bars.
In part, though, my reaction was professional. The horrifying plot twist makes Penny’s story a difficult and controversial one to tell, and it was tempting to avoid the whole morass. There are, after all, other victims who have misidentified their assailants and faced up to their mistakes – not many, it’s true, but some. As a journalist, I couldn’t help but recognize that those people’s experiences would make better stories – where by “better,” I mean, of course, simpler: simpler narratively, and simpler ethically.
But the more I thought about using a different story, the more troubled I became. The world isn’t a simple place (narratively or, God knows, ethically) and the prospect of trying to pretend that it is – in order to write a chapter about denial – soon became untenably absurd. I knew that part of this chapter was going to be about the potentially insidious attraction, for prosecutors and victims alike, of simple stories (good guys, bad guys, morally satisfying conclusions), and about the way this attraction can lead us into error, including in situations where lives are on the line. Yet there I was yielding to that same attraction myself, edging quietly away from unwelcome and complicated truths.
In the end, I decided to take my cue from Penny. Even in the midst of her triple nightmare – the assault, the misidentification, the murder – she managed to resist the urge to simplify the complexity around her. “There are people who now firmly believe that the DNA was wrong, that Steve was my assailant,” Penny told me. “The sheriff’s deputy, the former deputy, tons of people have said it: that I was duped, that the DNA was either fudged or erroneous. A lot of people are having a hard time accepting now that the DNA was accurate.” But she herself nurtures no such illusions. She understands the science, and she knows that it not only exonerated Avery but implicated another man – one who looked similar, lived in the same area, was known by the police to be dangerous, and is currently serving time in jail for a DNA-based conviction in another rape.
Nor did Penny believe what some other people were saying: that Avery had been framed for Halbach’s murder, that local law enforcement officers were taking revenge for the way the wrongful conviction had made them look bad. Penny knew, from her own trial, that Avery had a history of cruelty to animals, and had once run a neighbor off the road and pointed a rifle at her, backing off only when he realized that her infant daughter was in the car as well. During the years Avery was in prison, these facts had almost comforted Penny, serving to assure her that she had accused the right man. After his exoneration, she had somehow elided them. But when he was accused of Halbach’s murder, they came back to her, and this time, she didn’t look away. Although he was innocent of her rape, Penny knew that Avery was a troubled and a violence-prone man.
For Penny, then, denial was never an option. Or at least, that is how she tells it. And yet, as we have seen, denial is always an option, and an attractive one. It serves to shield us from pain, anger, guilt, and change – such a basic and forceful imperative that, even at its most egregious, denial is relatively easy to understand. In fact, it is acceptance that is often the greater mystery. If we shake our heads at people like Attorney General Michael McGrath and call him crazy, we shake our heads at people like Penny Beerntsen with something like awe. True, admiring other people’s ability to face their mistakes isn’t the same as facing our own. But it is a start. It reminds us that, as seen from the outside, denying error looks irrational, irresponsible, and ugly, while admitting it looks like courage, like honor, and like grace.
And sometimes, of course, it looks extremely hard. For Penny, refusing to resort to denial means living with immensely complicated and contradictory realities: with her suffering but also her error; with Avery’s suffering but also his atrocity. She had felt warmly toward him, moved by his ordeal and blessed by his compassion toward her in the face of it. When he was accused of Holbach’s murder, she was, she said, “flabbergasted.” She wondered how she could have been so wrong yet again, this time about Avery as a person. And she thought, too, about her own uncontrollable anger after the rape, and tried to fathom the kind of rage that might accumulate during almost two decades of wrongful imprisonment. To her already doubled sense of responsibility – for Avery’s lost years, for the other women who had suffered at the hands of Gregory Allen – she now had to add a third, of almost inconceivable gravity: “If I had identified the correct person, would Teresa Halbach be alive today?”
As Penny knows, this question is unanswerable. Nobody can say what the course of history would have been if her life and Avery’s had never intersected. And she knows, too, that she will have to find a way to live without that answer, and without the answer to so many other questions about why the prosecution of her assault went so terribly awry.
This is what makes Penny’s story so remarkable: she is able to live both with and without the truth. That is exactly what overcoming denial calls on us to do. Sometimes in life we won’t know the answers, and sometimes we will know them but not like them. Our minds, no matter how miraculous, are still limited. Our hearts, no matter how generous, can’t always keep us from hurting other people. In other words, denial isn’t just about refusing to accept the difficult, complicated, messy external world. Nor is acceptance just about accepting the facts. It is also, and most importantly, about accepting ourselves.
 As long as the sample isn’t contaminated, the error rate for DNA testing is estimated at roughly one in a million. Under the testing procedures used by the FBI, the odds of two unrelated people matching the same DNA sample are one in 100 billion. Since the total population of the planet is under nine billion, DNA evidence can reasonably be regarded as conclusive.
 The sincere form of denial flourishes in politics, too. To quote the historian Barbara Tuchman: “Wooden-headedness, the source of self-deception, is a factor that plays a remarkably large role in government. It consists in assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs. It is acting according to wish while not allowing oneself to be deflected by the facts. It is epitomized in a historian’s statement about Phillip II of Spain, the surpassing wooden-head of all sovereigns: ‘No experience of the failure of his policy could shake his belief in its essential excellence.’”
 In the 1970s, at the request of a federal oversight agency, ninety forensic laboratories analyzed five different hair samples each. On average for the five samples, the analysts correctly matched the hair to its donor 50, 28, 54, 68, and 56 percent of the time. They might as well have flipped coins.
 Defenders of this position don’t deny that a prisoner could be innocent of a specific crime; instead, they challenge the person’s overall innocence, his or her moral worth. As they see it, anyone who gets caught in the dragnet of the law must be a bad egg, already or soon to be guilty of something, so that society is better off keeping such people locked up – due process and DNA be damned. For a thorough debunking of this argument, I strongly recommend Peter Neufeld, Barry Scheck, and Jim Dwyer’s’s Actual Innocence.
Okay, maybe you don’t have strong beliefs about the “right” way to load a dishwasher, or about your sweetheart’s propensity to do it “wrong.” In that case, either you are unusually saintly or (like me) you don’t own a dishwasher. But you almost certainly get involved in domestic disputes about who’s right and who’s wrong all the time; we all do. Although interpersonal arguments can have a number of causes – from serious and painful breaches in trust to the fact that we haven’t had our coffee yet – an impressive number of them amount to a tug-of-war over who possesses the truth. We fight over the right to be right.