Harvey Silverglate (“The justice system terribly failed Bernard Baran. There should be consequences.” Op-ed, Oct. 12) believes that the wrongful conviction of Bernard Baran calls for a “searching inquiry into possible prosecutorial misconduct” on the part of Daniel Ford, now a judge. If, in fact, Ford buried evidence of innocence, exposure and discipline would be perfectly appropriate. But even then, disciplining Ford wouldn’t, by itself, cut the risk of reoccurrence. To do that, we have to investigate not a person, but an event, and try to understand why a mistaken decision looked like a good decision at the time. If we don’t, the same choice will look like a good decision to some prosecutor the next time it arises.
Many things have to go wrong before the wrong person is convicted, and the right answer to the question “Who is responsible?” is almost always: everyone involved, if not by making a mistake, then by failing to catch someone else’s.
In criminal cases “everyone” includes not only the cops and lawyers at the sharp end of the system, but funders, policy makers, media outlets, and others far from the scene of the event who shaped the environment at the sharp end.
Medicine, aviation, and other high-risk fields have learned that you can’t discipline your way to safety. They have instituted systems of forward-looking accountability that assess future risk rather than stop at assigning blame. Criminal justice could do the same.
The writer is a Boston defense lawyer, and is a contributor to the National Institute of Justice’s special report “Mending Justice,” published last month.