By Mark Larson
I recently attended a conference addressing wrongful convictions, a subject that frequently overlaps with my interest in eyewitness identification. I had gone to the conference to hear about the latest research findings from eyewitness experts, but was captivated by one of the keynote speakers, Kirk Bloodsworth.
Bloodsworth was an unpolished, but forceful, speaker, who took about 20 minutes to tell his story- one that is recounted in the book, Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA.
Later in the conference, I got a chance to meet Bloodsworth and purchase a copy of the book. I found myself unable to put it down as I flew home to Seattle. The story is remarkable in many respects. The crime that he was accused of was a brutal and highly publicized child homicide in the Baltimore area in 1983. The community was deeply affected by the crime - particularly while the perpetrator remained unidentified and at large. The case played prominently in the local and national press.
In other respects, the case was like many handled by prosecutors here and in other jurisdictions. The investigation began with no suspects and several witness descriptions that were vague and contradictory. There was no forensic testing available to investigators that could be done to obtain an identification of the offender.
After interviewing two children who had seen the victim go into the woods with the suspect, police created a composite sketch of the perpetrator that was distributed to the media. After that, police were swamped with hundreds of tips and possible suspects, although in hindsight, the composite itself was produced under questionable circumstances. The police, however, felt they needed to do something to jumpstart the investigation.
It was at this point that things began to go wrong. Faced with so many investigative tips, the police tried to prioritize and follow up on those that seemed most promising. But, in hindsight, there was an almost random quality to what they decided to investigate.
Bloodsworth was identified in one of the many tips that poured in. As part of a preliminary investigation, police learned that he had quit his job and left the Baltimore area abruptly after the crime. Police also were highly persuaded by the fact that Bloodsworth seemed to match the FBI's psychological profile. From then on, all evidence was analyzed with an eye toward building a case against Bloodsworth.
At trial, the two boys testified that Bloodsworth was the person they saw with the victim just before the crime - though their initial description included blond hair and someone 6-foot-5. (Bloodsworth is 6-foot and has prominent red hair.) Two other witnesses said they saw Bloodsworth hanging around the neighborhood just before the crime - never mind that they both saw Bloodsworth's picture on TV before they picked him from a photomontage.
A hair found on the victim, that did not match Bloodsworth's, was explained away. A shoe print on the victim's neck was said to match shoes taken from a residence used by the defendant - never mind that the shoes did not fit Bloodsworth. Other innocuous facts were interpreted to corroborate the eyewitnesses. Most painfully, the book documents the many tips pointing toward other suspects that were mostly ignored once the investigators settled on Bloodsworth as the person who was responsible for the crime.
After being convicted (by two juries in two trials), Bloodsworth spent nine years on death row. In 1993, he was cleared by DNA evidence. A genetic profile obtained from a semen stain found on the victim's underwear matched a person who had briefly been a suspect, but was not meaningfully investigated.
As a prosecutor, I found this story gripping and poignant. I could place myself into the narrative, working with police and later as one of the trial lawyers. As much as I wanted to view the investigators and prosecutors in the case as some foreign species - hell-bent on subverting justice, smug and indifferent - the book avoids those simplistic caricatures. These were hard-working people, faced with a very difficult job, probably with meager resources and under enormous pressure to solve an important case.
This remarkable tale caused me to reflect on the role of the prosecutor and the tension between our duty to do justice and our duty to be zealous advocates. An effective prosecutor must be an advocate - but what exactly does that require?
When we walk through the courtroom doors to try a case, we know that we must be advocates for our witnesses, the victim and our case. We must marshal every reasonable fact and argument to persuade the jury. We short change our client - the citizens of this county - if we fail to do that. But do we have another role, outside the courtroom, as we participate in and/or analyze case investigations? I think we do.
Whether we go to the crime scene, read a case in the comfort of our office or go out in the field to meet witnesses, prosecutors are vitally involved in case investigation. In that capacity, I believe that we have a very different role than when we try a case. As prosecutors involved in an investigation, we must not simply marshal the evidence to support a pre-existing conclusion.
Criminal investigations are highly dynamic and rarely come to entirely unequivocal conclusions. As a result, it is the prosecutor's job to advocate for the integrity of an investigation. We must ensure that the case has been thoroughly investigated and that all meaningful leads have been pursued. We must be willing to re-examine theories and conclusions when confronted with new or conflicting evidence. We must engage in critical thinking and encourage investigators to do the same.
I suspect there may be a cost to playing this type of role during the case investigation and review. It is human nature to want to narrow an investigation and defend decisions or conclusions that have been reached. Keeping an open mind and admitting that a theory is just that - a theory that can and should be challenged - will not always be popular.
Accepting that people - all people - can reach erroneous conclusions is not likely to win friends in every quarter. But that is why this job is so satisfying! Prosecutors have a charge unlike any other legal advocate - we are charged to do justice and not just win cases. n
Mark Larson is the chief criminal deputy in the King County Prosecuting Attorney's Office. He is the past co-chair of the KCBA Judicial Evaluation Committee and incoming co-chair of the Judicial Screening Committee.
