By Criminal Defense Attorney Jeremy Rosenthal
I’m a huge fan of both Malcom Gladwell and Michael Lewis. They are best selling authors. Lewis’ famous works include “Moneyball”, “The Big Short”, and “The Blind Side”. Gladwell wrote “Outliers”, “The Tipping Point”, and “Blink” to name a few.
Both authors focus often on how the human mind tricks itself when it comes to important decision making. For example, Lewis’ discusses in a recent book, “The Undoing Project”, how the Houston Rockets General Manager really dislikes meeting potential players. He worries he will like them too much and this will cause him to give players a chance who have statistically proven they have limited abilities to pass, rebound or shoot. Further, he forbids coaches and scouts to compare prospective players to past players. The Houston GM believes each player is unique and convincing yourself a new player is like “Clyde Drexler” for example, is a great way to trick yourself into a bad decision.
Gladwell discusses “thin slicing” in his book, “Blink.” Thin slicing refers to our ability to take small bits of information and create full pictures from them. Sometimes the thin slicing serves us well and other times it takes us in a completely wrong direction.
How Police Trick Themselves
We like to think of a good cop just like a trusty hound-dog. We want to think there is a sixth sense they possess which allows them super-human abilities to see through people, read minds, and become one with the universe just for a few moments every day to protect the good from the evil. Except intuitively we know this can’t be true.
One of the very first people I defended after leaving the DA’s office had been accused of stealing air conditioning equipment. He had plenty of tattoos and a long rap sheet. He had no idea why he was in custody.
“Sure, sure” I thought. “They told me there would be people like you I’d have to defend… Crooks who were so dishonest if they told you it was daytime I’d still have to go outside to check.”
Then I saw the evidence. A detective was told by a homeowner they saw a silhouetted man after dark from about 100 yards away messing with an AC unit. The next morning the unit was gone. A few weeks later, my client was selling the same unit from his store (matched with a serial number) nearly 150 miles away!
“Huh,” I thought…. “you actually didn’t steal the thing and you really don’t know why they dragged you up here for this!”
Now, maybe I’m the fool for believing it wasn’t him who stole it… and he was probably guilty of at least buying an AC unit he should have known was red-hot and trying to re-sell it for a profit. But there was a better than even chance he was innocent in my mind.
So how did the cops blow it? (Fast forward — he was soon exonerated and released).
They were tricked by his rap sheet, by his appearance, and just enough evidence against him which didn’t pass the smell test. They wanted to believe he was guilty. Their brains worked like mine did.
One of the concepts I try to get juries to understand is how often law enforcement will use circular logic in their investigation and the prosecution will use circular logic in the presentation of their case.
Circular logic is like this: The defendant is guilty so x must be true, y must be true and z must be true…. therefore the defendant is guilty.
A real world example could be a domestic abuse case. Police believe defendant beats his wife regularly. This explains why the spouse doesn’t want to prosecute. He knows how to hit her so that it won’t bruise much and if it does it is covered by clothing, and why the police have to come out to the house regularly…. therefore Defendant beats his wife regularly.
It all makes sense and there is nothing complicated to investigate. We’ve seen this 1,000 times, right? What I see is how we got there with thin-slicing and reaching a snap decision which completely altered our thinking. We bought into the pre-existing narrative we all want to believe.
Now, maybe the truth is it is the wife who has uncontrollable substance abuse problems and often attacks the husband or the kids. When he defends himself he might leave defensive bruises on her arms. Maybe she calls the police on him 3 times a year in her opioid or drunken rages then immediately gets remorseful the next morning. Who knows?
Deconstructing the Thinking Errors
Trying a case to a jury or judge while deconstructing these thinking errors is a challenge. Police and prosecutors are highly polished at presenting their case. In their defense, they sincerely believe their narrative is correct and obviously in many instances it is.
There are parallels between the Houston Rockets GM’s identification of classic mental pitfalls and common mind-traps law enforcement encounter.
We know this happens when someone is exonerated after years and years in incarceration. It shouldn’t take DNA to tell us. It requires listening, keeping an open mind, and being mentally disciplined.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.