TRANSCRIPT: Lawyer Forward Episode 9

Hi, I’m Mike. Before I tell you a story, I want to warn you. This show contains details about a sexual assault case. If that’s a subject that triggers harmful memories for you, I’d encourage you to turn this off, take care of yourself and come back to us next week. This is an incredible story about friendship, but there’s darkness first, please do what’s right for you.

Jennifer Thompson climbed into bed, waiting for aspirin to kick in. She was a college student and felt like a bit of a party pooper leaving early to nurse, her pounding head. The last thing she saw before drifting off was her boyfriend’s reassuring face. The first thing she saw when she woke up again was the outline of her rapist’s body in the dark. Recalling that terrible night for police during a short investigation, Jennifer confidently identified her attacker in a lineup. He fit all the physical markers she’d memorized during the attack. And the man she identified was eventually sentenced to life Plus 54 years. Ronald Cotton, Jennifer confidently told the jury, was her attacker. Unfortunately for both the accuser and the accused Ronald was innocent. And that led to a most unusual friendship. I’m Mike Whalen. This is lawyer forward.

This episode is about tricks of the mind and how uncharitable we tend to be of others who suffer from them, while largely letting ourselves off the hook. It’s about changing minds and friendships. And most of the research comes from another unlikely friendship. I’ll share the story of Amos Tversky and Daniel Kahneman, which has an ending that is both poetic and sad.
But first I want to dig into the story of Jennifer and her misidentified attacker, because the science is really important. The date was July 28th, 1984. At that time, witness testimony was seen as the most reliable tool for prosecutors, and they call Jennifer Thompson the perfect witness.

She was educated, confident, and clear minded. She made the jury feel good about believing her. As Jennifer recounted the night of her attack, she gave up coherent narrative, a man entered her room and woke her up. He climbed on top of her with a knife in hand. And as she trembled in fear, he wrapped his gloved hands around her throat. Jennifer went into survival mode.
She was five foot two, and wouldn’t get out of this alive unless she outwitted her much larger attacker. Time skipped, as she wrote later, “there in my memory at the knife edge of fear, time distorted. Some moments hurdled by, others seeped by slowly, as if they were becoming one with everything I was ever going to be”. She told him he could have her money hoping that might be why he was there, but he said he already had her money and then spoke and acted with a disturbing familiarity.

As her mind tried to remove her from the moment, she kept bringing it back, knowing one day she might have to testify about this awful night. Quote, “in blinks I willed myself to note the details. I studied his face for features to identify the hairline, his awful mouth. Did he have scars? Tattoos? Although I didn’t want to look at him, I had to”.
Jennifer’s mental list grew as the moment extended into minutes, every bit of light that came into the room, she noticed something else. He was a light skinned black man dressed in dark khakis and a blue shirt with white stripes on the arms. He walked in white canvas shoes and had white knit gloves. He was tall, but she couldn’t tell how tall. At her height and amid this chaos, everything seemed tall.

As she found ways to distract him and weave her way closer to a door, he rifled through her things. “Can I have this?”, He asked about a photograph of Jennifer. She found it so odd that he’d asked permission about a photograph after what he’d just done to her in her room.

Jennifer found her way to a door and ran into the night. The attacker followed her, even as she found her way into a professor’s house. He stalked around the outside of the house while the professor’s husband stood by the door with a baseball bat. “I’ve been raped by a black man”, she told her protectors and they waited for help to arrive.
As Jennifer wrote later, large chunks of time disappeared from her memory, but she remembered being placed in an ambulance, driven to a hospital and being violated for a second time. As medical staff collected evidence. For the first night of the rest of her life, she defined this moment as the demarcation between before and after. She knew that she was a new person now, and none of her close personal connections felt close anymore.How could her boyfriend possibly understand this? Not long after, the man she thought she was going to marry, left her. Or she left him. She wasn’t quite sure.

When the police arrived to interview her, Jennifer heard another woman crying in the ER. “What happened to her?”, she asked and the officer said, “she was raped. We think it’s the same guy”. And Jennifer filled with rage as the policeman asked, “Ms. Thompson, did you get a good look at your assailant? Do you think you’d recognize him if you saw him again?”. A flood of memories came back, all those mental notes she took during and after the attack. “Yes”, She said confidently, “I would”.
On the other side of the world, another unlikely friendship began. It wasn’t unlikely because of interest, both Amos Tversky, and Danny Kahneman taught in the psychology department at Hebrew university. But the two men couldn’t have been more different. Amos was a star. He was always the smartest guy in the room. He was well liked and confident. Everybody wanted a piece of Amos. Danny, however, he was the tortured artist type. He was riddled with self doubt and liked to stick to himself, even working in the same department, it took years for the two to run into each other. It finally happened when Danny invited Amos to give a lecture to his seminar, on the practical applications of modern psychology. The fact that Danny thought psychology could have practical applications at all, tells you something about him. Danny grew up as a Holocaust survivor, and his early years in the Israeli army were spent developing an algorithm to determine which soldiers should be promoted to officers.

His algorithm is actually still used today. Every bit of decision science had a place for Danny and his seminar was a chance for students to apply what they’d learned. Amos jaunted confidently into the conference hall. He gave this a long lecture about how humans are incredibly intuitive, when it comes to statistical thinking, and then he finished to applause. Afterwards, Danny walked up to him and told him that he thought his talk was interesting, but it was total nonsense. Amos was hooked. He had to be friends with this guy. The two scholars formed a friendship that everyone around them called a marriage, their wives, each of them psychologists as well, would occasionally complain that the friends treated each other more like spouses than they did their actual spouses, but they had to understand, Amos and Danny were doing some of the most important work in the field.
The partnership needed room to perform, and they did perform. Danny worked in a way that pleased Amos, he really focused on errors in human thinking. And Amos lived in a world where everyone else was less rational and intelligent than him. He wanted to know why. The partnership allowed Amos to find the flaws in the way other people operated. Amos’s research had already addressed a mental flaw that you actually see in the Jennifer Thompson case and the identification of Ronald Cotton.

And in every case of witness identification, it’s the issue of similarity. You see, before Amos, psychologists thought that people made decisions by measuring the mental distance between some ideal and some reality. So, a potential husband might be a good choice if he was really similar to the ideal a woman had in mind, but that assumed that we gauge similarity as a bundle like one whole person.

“In fact”, Amos argued, “It’s all about features of similarity and how we weight them”. He could give countless examples. Tel Aviv was like New York, but New York was not like Tel Aviv. A toy train is similar to a train, but a train is not similar to the toy. If similarity was some objective measurement, like a distance, those analogies would go both ways, but they don’t because New York has way more distinctive features than Tel Aviv to use as a reference, and we weight them differently in our minds.
So, in the case of Jennifer Thompson, she made a concerted effort to notice features of her attacker that made a mental list that she could use to compare to Ronald Cotton later. And that gave her the confidence to make a composite view of her attacker, that was actually totally wrong.

The context also adds weight to some of the factors. For example, two American students may see each other on campus and they see each other as totally different. But if they see each other on a trip to Bora Bora, they’ll feel very similar. In a lineup or a picture array in a police station, that context, certain features of similarity stand out that might never have been factors in Jennifer’s mind.

Amos and Danny kept digging into the tricks our minds play, creating a whole new science of the irrational human making decisions, that make no sense from the outside. After Jennifer got her identification wrong, onlookers became awfully uncharitable about the mental processing flaws that led to her error.
She received death threats and notes that said the writer hope she’d be raped again, and killed. From the mental errors we all make, human relationships suffer, and Ronald Cotton was determined to not let that happen to him.

During the trial of Ronald Cotton, his defense attorney made a grave and inhuman mistake. While Jennifer Thompson sat on the stand, he asked whether a young lady who sleeps in just her underwear, was inviting sexual assault. The claim shocked the jury and made Jennifer’s accusation that much more enticing to believe.
Jennifer really was a dream witness. She was confident and she was direct. During the investigation, she’d been rewarded for her confidence. As she shared later, when Jennifer identified Ronald, in both the photo array and the lineup, he was the only person in both. The police told her quote, “Good job. That’s who we thought it was”.
She now realizes that the police had a bias because they’d already chosen Ronald as the attacker, but at the time it confirmed her confidence. When asked to point out her attacker in court, she raised a finger in Ronald’s direction. That made the jury’s job easy, and they came to a decision in just four hours.

Amos Tversky, and Danny Kahneman had researched the mental processes that convinced both Jennifer and the jury. Danny later referred to it as the “illusion of validity”. And it’s built on our brains need for coherent narratives. The two psychologists had proposed an idea that our experiencing mind is very different from our remembering mind. The purpose of the experiencing mind is to make quick decisions, but the purpose of the remembering mind is to tell a coherent story that matches all the facts.

Jennifer told both herself and the jury, a convincing narrative that fit all of the facts, or at least the facts she could remember. The very act of putting those facts against Ronald cotton’s face, influence which facts Jennifer’s remembering mind thought were relevant. Distinguishing features like the fact that Ronald was more than four inches taller than how tall she said her attacker was, well, those facts faded in the background. She was so sure.

After his conviction, the judge asked Ronald if he had anything to say. He stood up and sang a song that he’d written in jail. A song about enduring and a God that loved him enough to rescue him however long it took. And he kept that optimism in prison. While Jennifer moved on slowly with her life, marrying and having kids, Ronald stayed focused on the trial that put him in for the rest of his life.

One day, Ronald noticed a new guy walking around the prison yard, Bobby Poole, and he looked much more like the police sketch that put him in prison for life than he did. Another inmate later told him that Poole admitted to the rapes that happened that night, and for several months after. For the first time in awhile, Ronald had hope of getting out.
But when he sent the new information up the legal flag pole, it didn’t look good. How could an inmate witness compete with the perfect witness that was Jennifer Thompson? When his pleased to his lawyer didn’t work, Ronald was filled with rage. He decided to kill Bobby Poole in prison. He told his dad of his plan during a visit and he said goodbye in case he was the one who died. But his father convinced him to hold off. “You aren’t guilty, Ronald”, he told him, “but if you kill that man, you are guilty”. Ronald decided to wait and see what the justice system might come up with. And then the OJ Simpson trial happened, Ronald listened to the entire trial in his bunk, and it eventually gave him an idea, why not ask for a DNA test? In the spring of 1995, the Burlington police department turned over all the evidence in the Ronald Cotton trial to the defense, including a sample of the attacker seamen, a clear match came back from the DNA test, Bobby pool was Jennifer’s attacker, and more matches came back for him in multiple rapes back in 1984. Shortly after Ronald was released and now Jennifer had to reckon with the tricks her mind played on her.

Before the exoneration of the man she’d confidently accused in court, Jennifer struggled. As she later said, a survivor “can’t return to that place where you were before. The lens you look at the world through becomes distorted and everything you choose is now distorted. What value do you have?”.

In the middle of that self judgment, the exoneration of Ronald Cotton created immense self doubt. What had she done? She felt that she’d acted rationally, but no one, including herself could forgive her for getting it wrong. Desperate for some kind of closure, she reached out to Ronald. She asked if he would meet in a church where she could explain herself.He agreed.
When Ronald walked into the church with his wife, Jennifer cried. He was too tall, Jennifer immediately thought, and she began to see all the features that were different from Bobby Poole. She blurted out a string of apologies. Ronald said, quietly, “I forgave you years ago”. They hugged and cried together and agreed to make sure things like this never happened again.
In the years that followed, Jennifer and Ronald created a friendship they could never have imagined. They advocate for victims around the prosecution of sexual assault, including those who are falsely imprisoned and those witnesses who get it wrong, but are still victims, even while trying to get it right. Through an organization called Healing Justice, which you can find and support at healingjusticeproject.org. Jennifer, and a team of educators train police prosecutors and social workers on the cost of wrongful convictions.

Jennifer and Ronald wrote a book together called Picking Cotton: Our Memoir of Injustice and Redemption. They travel together, speaking about justice reform and restorative justice. Two people, victims to the kind of mental errors that made Amos Tversky and Danny Kahneman famous, forged an unlikely and unbreakable friendship. For Amos and Danny however, those same errors tore them apart.

As I close out this episode, I want to make what might seem like a really strange pivot. I want to talk about how we treat each other online. After last week’s episode on cancel culture, I received a lot of negative feedback, it was mostly positive, but some people took offense at the idea that there isn’t debilitating harassment online.

I kept explaining that there is harassment online, that I never said there wasn’t, and that it’s a cancer. Most of those people couldn’t handle the nuance and decided to stay mad at me, which is fine. But I’m deeply concerned about the mental flaws that play out in communities that are both anonymous and personal. Whatever the flaws of our human interactions, they’re all online right now. That creates some new dynamics, but the destruction of human relation because of mental error, is as old as humanity, it’s in our wiring. In fact, that wiring broke up a relationship between the two men who probably had the most influence on the rest of us recognizing the flaws existence.

In 1993, one of their critics came up in conversation between Amos and Danny. The two didn’t live near each other anymore. Danny purposefully moved to the American coast opposite the one where Amos lived, as Amos taught at Stanford and Danny took a spot at Princeton. Danny said he just couldn’t breathe around Amos’s fame anymore. While Amos received MacArthur genius grants, honorary degrees, and a presidential medal of freedom, all from the work the two of them did together. Danny got very little recognition. He couldn’t handle it anymore, but in 1993, they ran into each other at a conference in Turin Italy. Amos brought up their new critic, a German psychologist who argued that the human mind was a rational machine evolved to perform its tasks well.

Amos and Danny’s work, proving how flawed the mind is, simply offended the German. Amos asked Danny for a personal favor. He wanted to write a letter so scathing and so demeaning that no critic would ever dare to write against them again. But Amos knew he always did his best work with Danny, and he needed his help. So, as Amos had never asked for a personal favor like that, Danny relented, and he immediately regretted it.

Amos, filled with rage that Danny just couldn’t muster, he wasn’t made up that way. He was insecure even now after all of this work. And he didn’t feel like picking a fight. Amos was a recognized genius, but he couldn’t see that after all these years, all Danny needed was for his friend to see how fragile he was, and to say something supportive about it. The relationship, by now, had just grown too distant.

On the final night working together on the letter, Danny told Amos that he’d had a dream. He dreamt that he received a diagnosis from a doctor, that he’d only live six more months. When he woke up, Danny asked himself whether writing a raged filled letter to a critic was what he wanted to spend the last months of his life doing.
When Amos snapped back that relying on dreams was stupid. Danny left and said they weren’t friends anymore. Just three days later, Amos called Danny back. He told his former friend the doctors had found a malignant melanoma in his eye. In an ironic twist from Danny’s dream, Amos called to say they’d scan the rest of his body and found it riddled with cancer. He had just six months to live.

He asked if they could be friends, just a little longer. There are many significant truths in these two stories, the mental tricks that lead to false evictions and how we systematize them are so important. But both stories ultimately came down to a human connection. Two unlikely friendships, jeopardized by the games our minds play with us.
When you engage with anyone online, or whenever we can again, in person, remember how flawed your mind really is. Amos couldn’t convince Danny he was good enough. And Danny couldn’t convince Amos to care. Their brains behaved in a way that undermined their intentions. But Jennifer and Ronald overcame those biases and formed a relationship that helps others. In the face of a harmful script that tried to destroy them, they found mercy and were all better for it. May you find that mercy. Thank you for listening.