I am not a real big fan of failure. I prefer to succeed. I admit that I always thought there was at least a thread of truth in Coach Lombardi’s quote of “Show me a good loser and I will show you a loser.” However, I have learned that much more can be learned from a failure than from a success, and I admit that failure interests me.
I was reminded of the value of failure by a recent article in the NY Times. See Taking Lessons From What Went Wrong. When I was a district attorney, I thought it was important after a trial loss to have what the military calls an “after action review”. At that review, the main investigators, other prosecutors and I discussed the case, and attempted to indentify where things went wrong, and what needed to be improved. What in the investigation of the crime should have been different? What in the presentation of the case should have been different? I found such reviews to be helpful, and I believe through them we improved our performances. Sometimes we found we did as best we could and we just saw the case differently from the jury.
When the State loses in a criminal trial, according to Blackstone, one of ten guilty persons may have gone free or one innocent person may have been relieved of undeserved suffering—our system is designed that way. From a statistical perspective, the criminal justice system is designed to accept a large amount of type II error and a small amount of type I error. Type II error is the erroneous conclusion that the null hypothesis—that the defendant is not guilty—is true, when in fact the defendant is guilty. Type I error is the erroneous conclusion that the null hypothesis—that the defendant is not guilty—is false, when in fact the defendant is innocent.
When someone is wrongly convicted, the system failed to discern the innocent from the guilty. I believe that the participants in the criminal justice system should systematically evaluate known false convictions and reverse engineer the cases to learn what went wrong with the criminal justice system, especially since the system is designed to prevent type I error. We should attempt to identify what, if anything, the participants can do to prevent a similar wrongful conviction from occurring again. I understand that the criminal justice system is human and can make errors. I also understand the desire for finality. However, I believe that the legitimacy of the justice system is bolstered, not degraded, by constructive analysis and criticism.
As a judge, I also attempt to learn from mistakes. Although I read all the cases from the Wisconsin Supreme Court (I have been busy lately with that) and the published cases from the Court of Appeals, I also make it a point to read all of the unpublished cases where the Court of Appeals has determined that the trial court erred (regardless of harmless error). I learn much more from those cases than the cases in which no error was found (unpublished no-error court app. cases don’t make my cost/benefit reading list ratio cut). I learn what to avoid—which from a practitioner’s perspective is a large part of the successful practice of law. (Didn’t we all learn in law school to identify the snake in the grass?) Although failure is never sweet, we can learn its bitterness and hopefully become wiser with the knowledge.
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