(This post is part of a series concerning Curtis Flowers, an innocent man convicted of a horrific crime that has divided a small Mississippi town. Information on the Flowers case can be found here.)
Procrustes was an ancient inn keeper who thought his bed was just the right size. If guests didn’t fit the bed, Procrustes made the necessary adjustments–stretching his visitors on the rack or lopping off their legs—until he had a perfect fit.
Prematurely convinced that they have the right man, criminal justice professionals construct a theory of the crime that fits their guy. Once this narrative is firmly established, evidence to the contrary is ignored or altered to fit.
The technical name for this phenomenon is tunnel vision.
When evidence of guilt is solid (and it usually is) tunnel vision isn’t a problem.
Defendants who can establish innocence beyond a reasonable doubt are cleared.
It’s the cases in the middle that set the tunnel vision trap. The state has some evidence that tends to implicate their prime suspect, but contradictions are rife and nothing really hangs together.
When the crime is unusually barbarous and the public is clamoring for justice, it is hard for a prosecutor to acknowledge failure.
In his book on police interrogation, Richard Leo asks why so many innocent defendants are convicted in American courtrooms. It begins, he says, with “the misclassification of an innocent person as guilty. Police typically make this error based on gut hunches, erroneous assumptions, crime-related schemas or profiles, or their flawed training in behavioral analysis that encourages them to mistakenly believe they can become highly accurate lie detectors.”
Writing in the Wisconsin Law Review, Keith Findley and Michael Scott argue that hubris and social pressure often lead criminal justice professionals to “focus on a suspect, select and filter the evidence that will ‘build a case’ for conviction, while ignoring or suppressing evidence that points away from guilt.”
The case against Curtis Flowers started with a bloody footprint. It took just over a week to link the print pattern to a Grant Hill Fila running shoe. Then a policeman remembered seeing a Fila shoe box in the bedroom closet of Connie Mae Moore, Curtis Flowers’ live-in girlfriend.
They couldn’t prosecute Curtis on one piece of circumstantial evidence, but Doug Evans and his investigator, John Johnson, knew they had their man.
That’s how wrongful conviction begins.
When the plodding lawmen in classic whodunit mysteries jump to unwarranted conclusions a Hercule Poirot-type sleuth urges caution. Investigators are reminded that coincidence isn’t evidence. First appearances can be deceiving.
But Hercule Poirot wasn’t in Winona when DA Doug Evans made his fatal leap of faith.
Tunnel vision is particularly tempting when investigations are run out of the DA’s office. Police Chief Johnny Hargrove should have directed the initial investigation and John Johnson, Doug Evans investigator, should have held off until the Winona Police Department completed its work.
That’s not what happened. The minute Chief Hargrove finished taping off the crime scene he was shunted aside and John Johnson took control of the investigation. The theoretical line between investigation and prosecution was erased from day one.
In the summer of 1996, John Johnson was the sole investigator with the DA’s office; by the end of the year he had two men working under him.
The problems with the bloody footprint theory should have been obvious. Connie Mae Moore said the box belonged to a pair of shoes she had purchased for her son, Marcus. What if she was telling the truth? And if Curtis Flowers destroyed the blood-stained shoes, why did he overlook the box?
Combined with his recent employment at Tardy’s, the box in Connie Mae’s closet made Curtis a legitimate person of interest. But given the popularity of the Grant Hill Fila (it was a marketing sensation that summer) and the ubiquity of people with feet in the size 10-11 range, the shoe box fell far short of establishing guilt.
Evans and Johnson should have known they had a problem when a $30,000 reward advertised aggressively on the black side of town met with silence. In their theory, Curtis walked to and from the crime. You couldn’t take that walk in the relative cool of a July morning without being seen by at least fifty people. Even when everyone in town knew Curtis Flowers was the state’s prime suspect not a single witness came forward.
Either people were protecting a suspected killer, or something was seriously amiss.
John Johnson was eventually forced to canvas homes along the route suggested by the state’s theory. The deal was simple: say you saw Curtis Flowers that morning and you got more money than you could earn in a year. Even then it took seven months to find a witness who could place Curtis in the vicinity of Tardy Furniture.
Did it ever occur to John Johnson that he was begging people to scam him? If his eventual witnesses possessed valuable information, why didn’t they come forward of their own volition?
Tunnel vision is driven by confirmation bias: the tendency to accept evidence in accord with what you already believe while ignoring or minimizing evidence to the contrary. We all do it. We can’t be rearranging our primary beliefs, values and commitments on a daily basis. That’s why only a Damascus Road encounter with reality can rearrange our religious and political convictions.
Investigators like John Johnson spend most of their time interacting with prosecutors, police officers and cooperating witnesses. The “Curtis narrative” emerged out of hundreds of echo-chamber conversations.
“Studies have established that confidence in the truth of an assertion naturally increases if the assertion is repeated,” Findley and Scott point out. “This increase in confidence from repetition is independent of the truth or the falsity of the assertion. Accordingly, the longer that police and prosecutors (and witnesses) live with a conclusion of guilt, repeating the conclusion and its bases, the more entrenched their conclusion becomes, and the more obvious it appears that all evidence pointed to that conclusion from the very beginning.” This makes it “increasingly difficult for police and prosecutors to consider alternative perpetrators or theories of the crime.”
In the wake of the Tardy murders, Curtis Flowers was relaxed, friendly and cooperative. Three of the victims were people he knew and liked. In his last encounter with Bertha Tardy, she handed him a $30 advance so he could enjoy the 4th of July holiday.
Whoever pulled the trigger five times in the Tardy Furniture store was a twisted psychopath. Curtis Flowers’ smiling demeanor may mask a cauldron of rage, but the evidence suggests otherwise.
The five black jurors in the fourth trial gave the state’s narrative careful consideration but still held out for acquittal. That shoe box in Connie Mae Moore’s closet wasn’t enough. When I talk to black people in Winona I get the same reaction: “I just can’t see old Curtis doing a thing like that.”
Most cold killers were abused and neglected as children. Normal people don’t commit murder casually or for the sheer pleasure of it. Even damaged people begin with small acts of cruelty and gradually spiral into deep depravity. Cold blooded murder is the final step down a long and sordid road.
Curtis Flowers was raised in a stable and loving family. Prior to the Tardy tragedy he was known as a jovial character who loved friendly banter. Flowers has endured fourteen years of incarceration without being disciplined a single time. After high school, Curtis worked at the same job for seven years until the factory closed. Every Sunday morning he could be found in one of Winona’s black churches singing with his father’s gospel quartet.
John Johnson and Doug Evans have consistently ignored these social facts. Their reasoning works like this: the Tardy’s trigger man was a cold killer. Curtis Flowers did the deed. Ergo, Curtis Flowers is a cold killer.
At a recent hearing in Winona, a member of Doug Evan’s staff opposed a defense request for reasonable bail by arguing that Flowers might throw a pre-trial temper tantrum and kill a bunch more innocent people. Defenders of the state’s case are threatened by the possibility that the man they are trying to put on death row is a pleasant young man with a deep faith in God.
The social facts on the white side of the Winona tracks are very different. Most white Winona residents identify closely with the murder victims. It’s personal. Most white residents enjoyed occasional social contact with Bertha Tardy and Carmen Rigby and many knew them as friends. The crimes of July 16, 1996 left white residents in shock.
On television, murder investigations are resolved in fifty-two minutes flat. Real police work is a slow and tedious affair. Three out of five murders are never solved; most murderers don’t leave behind enough evidence to build a case. If Curtis Flowers didn’t commit the Tardy murders the true killer (or killers) will likely never be brought to justice.
When Curtis Flowers was arrested in January of 1997, the families of the victims were cautiously relieved. Roxanne Ballard, Bertha Tardy’s daughter, reminded readers of the Winona Times that the $30,000 reward was still on the table.
“I’ve got some sense of relief that an arrest has been made in this case,” mayor Sonny Simmons told the local newspaper. “Up until now, the person that allegedly did this has been walking the streets. I don’t think that it’s going to eliminate the pain and suffering that the families of the victims feel, but at least now we do have an idea of who committed the murders.”
In a release to the Associated Press, Mayor Simmons rebuffed accusations that investigators had been dragging their feet.
But Winona was a long way from closure. Convictions in the first three trials were invalidated by sustained charges of prosecutorial misconduct. Reversals of this kind are extremely rare. Three straight reversals in the same case is virtually unheard of.
A fourth trial ended with the jury split seven-to-five along racial lines. Benny Rigby, the husband of Carmen Rigby, made little attempt to hide his grief and frustration. “Every time we go to trial, it takes something out of you,” he told the Winona Times. “You think you will eventually get closure, but every time they seem to take it away. It’s not fun sitting through a re-enactment of my family’s killing.”
The hardest part was watching Curtis Flowers leave the courthouse with the case unresolved. “Curtis Flowers’ family can go to the Vaiden jail and visit him anytime, and my boys and I can go to Vaiden to visit Carmen, but she’s in a cemetery.”
Doug Evans announced that he was prepared for a fifth trial. That trial also culminated in a hung jury. On June 7, 2010, Curtis Flowers will become the first defendant in American history to go to trial for the sixth time on the same capital charges.
Is tunnel vision a discreet synonym for racism? Yes and no. Overt bigotry has declined dramatically in the rural South since the death of Jim Crow. But de facto segregation persists in Mississippi towns like Winona and this makes it hard for men like John Johnson and Doug Evans to take the measure of a man like Curtis Flowers. Crude stereotypes flourish in the absence of genuine social knowledge. In the eyes of Doug Evans, Curtis Flowers is just another black thug.
A case this circumstantial could never be prosecuted against a popular white defendant in a town like Winona. Folks would know too much about the defendant’s family and personal reputation to see him as a cold blooded killer.
We aren’t dealing with old fashioned racism here; it’s more a matter of social ignorance and racial insensitivity.
Tunnel vision is contagious. It takes a lot of twisting and tugging to fit the evidence into the state’s procrustean theory, but all the stress marks have been airbrushed away by the time the narrative hits the courtroom. A consistent narrative, even one at odds with salient fact, carries all before it. In the absence of an opposing narrative, judges, juries and even defense attorneys can be seduced by the state’s guilt-story.
Not a single defendant wealthy enough to pay a defense attorney has ever been executed in the United States. But attorneys representing indigent defendants lack the money, resources and time required to construct a credible counter-narrative. Attorneys who don’t have time to interview the state’s witnesses aren’t going to launch a from-scratch investigation—and that’s what a counter-narrative requires.
Defense attorneys quickly learn that bad things happen to their clients when a case goes to trial. If the case is solid, the state wins. If the case is flimsy, the state still wins. Less than one percent of criminal defendants are ever acquitted by a jury. Few jurors entertain the possibility that criminal justice professionals would shape bogus evidence to fit a half-baked theory.
The state must prove guilt beyond a reasonable doubt. That’s the theory. But in particularly disturbing cases like the Tardy murders, jurors almost never acquit a defendant who can’t prove actual innocence. When the victims are white, the crime is murder, the defendant is black, and the state is Mississippi, the state’s burden shifts entirely to the defense. The only way the defense can win is to present a compelling counter theory that allows jurors to deplore the crime without blaming the defendant.
If this guy is innocent, jurors ask, why does the DA think he’s guilty? If defense counsel ignores this question the state will win. In the Flowers case, Jurors must be introduced to the concepts of tunnel vision and “confirmation bias”. Caught between a wicked crime and a weak case, Evans made the wrong call.
In capital cases, tunnel vision creates another innocent victim.
Every time this case goes to trial families on both sides of the social divide cringe. Every trial is a near-death experience with no resolution in sight.
Nothing good is likely to come of the trial scheduled to begin on June 7, 2010. The most likely scenario is another split decision. If that happens, will Doug Evans soldier on, convinced of his ultimate triumph?
The Attorney General of Mississippi can’t let that happen. The Curtis Flowers case must be placed in fresh hands so that each piece of evidence and the credibility of every witness can be re-evaluated. New possibilities must be explored and witnesses must be free to recant their testimony without risk of perjury.
There is no other cure for tunnel vision.