Tunnel Vision

(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 guest 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 leads 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.

Hercule Poirot

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?

Grant Hill Filas

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 one hundred 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 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 friendly 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 Hill’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.

12 thoughts on “Tunnel Vision

  1. I think you are too kind to the prosecutors in saying that it is tunnel vision rather than racism and implying that they really believe their case.

    One of the aspects of anti-Negro racism is that after the abolition of slavery one of the few uses white people have for blacks is as scapegoats when a particularly brutal crime requires a conviction and the actual perpetrator is unlikely to be found.

    As you have said “Three out of five murders are never solved”, and surely the prosecutors know this and know when they have one of these three but the horror of the crime and the social standing of the victims makes a conviction imperative, then some poor black person has a duty to perform the job of scapegoat.

  2. Thanks for these thoughts, Carlyle. A species of racism is clearly at work in this case, but I don’t think Evans et al said to each other, “we’ll never find a suspect in this case; what nigger can we blame it on?”

    The racism we are seeing in the Flowers case is largely attitudinal. Men like Evans find it very easy to cast Curtis Flowers as the dangerous black man. Way deep down they may realize how unconvincing their case appears from the outside, but this rarely invades conscious thought. They are like true believers confronted by evidence of evolution who form a holy huddle that serves as a mutual support system. When everybody keeps saying Curtis is guilty it almost becomes an article of faith. I suspect Evans will go to his grave thinking he was right to pursue this case.

  3. I don’t know whether anyone has ever said this. If not, I’ll volunteer to be the first:”No one is so dangerous as the person who is dead wrong and totally convinced that he is dead right.” Doug Evans seems to be such a person.

  4. Wow…the race card gets played in the very first comment.🙂

    That point aside, I agree with the basic premise of your post. Some might tend to lump all prosecutors into the tunnel-vision category, but while that would be a mistake, it would be a mistake for any prosecutor (or defender for that matter) to overlook the potential danger.

    I think an extremely prominent case of this (I could even play the race card here too…albeit reversed from the stereotypical norm) was the Duke Lacrosse “rape” case. Throw in a race industry eager to nail some upper/middle class white guys and you’ve got all the ingredients for tunnel-vision.

  5. Fabricating evidence and suborning perjury is standard operating procedure for many prosecutors and most of the time they can get away with it because they are prosecuting defendants who can’t afford the legal firepower necessary to expose it.

    I suspect that in the Duke Lacrosse case Mike Nifong forgot that he was prosecuting defendants who could afford to defend themselves properly but he did not change his habitual methods. Some reverse racism may have been involved in the pressure to prosecute but it was standard operating procedure that became a habit from prosecuting the indigent that was the problem.

    There are two models humans use for thinking about action, responsibility for action and guilt for wrong actions. The first is that to which the law pretends to adhere, actions are done by individuals, responsibility pertains to those individuals alone and guilt for wrong action is restricted to those who actually perform the actions. The second is that individuals belong to competing groups and the actions of an individual are considered to be those of all members of the group he belongs to, the responsibility therefore belongs to all members of the group and if the action is wrong any member of the group is a suitable target for punishment. The best example of this is the tradition of payback in Papua New Guinea. One of your tribe kills one of my tribe therefore I kill one of your tribe. I do not waste time looking for the particular member who did the killing. The law pretends to adhere to the first model but when the powerful are applying law and force to the powerless their is a strong tendency to follow the payback model and this results in scapegoating and collective punishment.

    It is not just blacks who are on the receiving end of this treatment, since the War on Terror started the US and the UK and to a lesser extent I think Australia (although I may be prejudiced here) have engaged in extremely vicious and abusive prosecutions of Arabs ad Muslims

    . The attitude is that all Arabs and Muslims are collectively guilty for the September 11 airlinerings and so it is legitimate to prosecute any random Muslim who is too outspoken or against whom the state has committed crimes that must be hidden using fabricated evidence because even if that particular Muslim dis not pilot one of the September 11 planes he/she is guilty of sharing the aims of those who did and being insufficiently strident in condemning the methods. Two examples of this ar Aafia Siddiqui and Fahad Hashmi. These Andy Worthington posts can serve as introductions:-

    Aafia Siddiqui and to Fahah Hashmi.

  6. Alan.

    You say ‘I don’t think Evans et al said to each other, “we’ll never find a suspect in this case; what nigger can we blame it on?” ‘.

    The fact is that they would not have needed to say this. I believe there is such a thing as tacit conspiracy where what appears to be the coordinated actions of a conspiracy are the result of multiple actors sharing the same deeply held beliefs. They do not need to discuss actions based on these beliefs as Evan knows that his associate know that Negros are inherently evil and his associates know that Evans knows this. That their actions constitute the framing Curtis Flowers never needs to reach the level of their consciousnesses. Actually we pay far too much attention to consciousness, it is a very minor part of the human thought process, most of our thinking goes on in the unconscious. Consciousness is the minds Post Office where ideas are packaged for sending off to the speaking/writing process or unpacked from the hearing/reading process. When prejudiced individuals talk they do not need to unpack their prejudices and put them into detailed words, they use code words that are attached to the prejudicial concepts but do not cause the complete concepts to enter consciousness.

    For people like Evans and his associates it does not matter if Curtis Flowers did not carry out the Tardy murders, he is black and has probably done other things and not been caught but even if not, convicting him acts as collective punishment to all the Black community for their using and trading in illegal mind altering substances and for other behaviour that may not be crimes but should be such as aggravated uppityness. But except for the exchange of code words via their conscious minds they do not discuss this,

  7. Thank you for these thoughtful comments. It is not surprising that we generally focus on conscious thoughts and published opinions–it is very difficult to cut below the surface to unconscious ideas and attitudes. On the other hand, behavior provides some strong clues. The simple fact is that neither Doug Evans nor I have the slightest idea who is responsible for the Tardy murders. There isn’t enough evidence to make a case on anyone. So, when Evans keeps bulling ahead something odd is afoot.

    In trial four, all five jurors voted to acquit. This should have sent a strong signal that (a) black and white residents see this case very differently, and (b) the folks with the closest social connection to Flowers and the state’s witnesses aren’t buying the state’s theory of the case. By moving on to trial five, Evans signalled that he doesn’t take the black residents of Montgomery County seriously.

    If you were to pick out 12 black people who are legal to vote and put them on the jury, Curtis Flowers would be acquitted. Alternatively, if you did the same thing with 12 randomly selected white residents you would get a unanimous conviction. Given the ambiguity of the case, some members of both juries may harbor doubts, but they would go with the majority.

    But you can bet that neither the white or the black folks who are selected for the jury will be randomly selected. First, because this is a capital case, jurors must favor the use of the death penalty to stand a realistic chance of selection. Since 75% of Mississippi African Americans oppose the death penalty, only the most punitive, and conservative, 25% will be selected for duty.

    In addition, members of the venire with close social connection to the accused will be eliminated from consideration. This eliminates those best able to assess Flowers’ character. Since this case boils down to the temperament of the accused, this constitutes a major advantage for the prosecution.

    As a result of these and other factors, blacks will form a distinct minority on the jury that is seated on the first week of trial (three or four at a maximum), and the black jurors who are selected will be disproportionately conservative and socially distant from the accused.

    This means that, although a solid majority of black people in Montgomery County think Curtis is innocent (I haven’t heard a single black person say otherwise), he could be convicted.

  8. I would never have thought of the “tacit conspiracy” terminology. I would say there is a shared subconscious attitude that contributes to the assumption that Curtis Flowers (and others) are probably guilty. And “beyond reasonable doubt” is a joke in our criminal justice system that works against defendants, regardless of color, but more especially against minorities.

  9. This comment was actually by Charles Kiker, by some cyber-mystery attributed to Alan Bean. He is not responsible for this one.

  10. Brothers and Sisters

    I am here to tell you that Jim Crow laws have not been abolished.

    What you are witnessing here is modern day Jim Crow actions that has been taking place for years not only in the South but through out all America’s Courts.

    I call it a criminal hanging they are placing an invisible noose around the necks of the black men and women who ends up in the criminal system.

    How it is done is such as cases that you see here with Curtis Flowers, not having one peice of evidence against him and he has been incarcerated now since 1997.

    This is what has happend to both Jamie and Gladys Scott in Rankin County Mississipi inwhich they are serving 2 double life sentences for a crime they had not committed for $11.00 they have been incarcerated since 1994.

    Herman Atkins : His testimony speaks for itself see youtube video below:

    “12 Years Taken From Me”: Help End Wrongful Convictions http://www.youtube.com

    When the innocent go to prison, the guilty go free. Hear Herman Atkins, a man exonerated by DNA evidence after serving 12 years in prison, tell his story of injustice and hope. Join him in the cause for freedom by taking action and urging the California legislature to help end wrongful convictions. …

    The problem now is American Courts have become the iron fist that use Jim Crow theory to convict black men and women they can no longer go string us from a tree.

    What they are doing is placing an invisible noose around their necks handing down crule and unusal punishment longer jail and prison sentences, wrongful convictions, and covering up police abuse.

    These are just few examples of the American Court system that terrorize us on the daily, it is time for black folk to wake up and educated ourselves about these supposed silent acts of Jim Crowism being perputrated against us still in the 21st Century.

  11. Absolutely correct Linda.

    What I do not understand is why there are not multitudes crying out that the drug laws are explicitly intended to provide a final solution to the Negro question. Do a Google search with the string ‘”drug laws” “Jim Crow”‘ and you get a mere 6000 hits.

  12. Carlye: I agree with the “tacit conspiracy” theory. They also do it because it is rewarded in a system that does not hold prosecutors accountable. Any other attorney would be disbarred but they are free to corrupt the process and all that happens is the court has academic discussions of whether the falsified evidence occurred in the investigative v. trial stage, etc. for purposes of 1983 actions.

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