Reading

On Tuesday after finishing my last book, and with no library holds ready, I dug through our shelves for one I’ve been meaning to get around to, Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened by Jessica S. Henry. I finished this last night.

This is an examination of the phenomenon of a person being convicted of a crime that didn’t happen within the American criminal justice system. Some examples in the book include being charged with arson over a naturally-occurring fire, with drug possession when there were no drugs present, and, bizarrely, with the murder of a child who never existed.

Often, this happens because an incident is initially mislabeled a crime, and everyone just rolls with that. And if there’s a crime, there must be a perpetrator.

If you’ve already studied the criminal justice system, or the legal system more broadly, there’s not much here that’s going to shock. Police with confirmation biases, overworked public defenders, prosecutors desperate to look “tough on crime,” defendants ready to plead guilty to something they didn’t do just to get out of jail pending trial, and judges who are being forced to wear too many hats all contribute to this tragic situation. I do think Henry lays it all out in neat order though, so that even if you knew about these things before, it might be clarifying to see how she puts it together.

I do think it’s something everyone should have at least passing awareness of. Popular media has hammered home that when something feels off, it is off. Humans put enormous stock in our “hunches” and intuition, which, when it comes to other people, are very often wrong. And if you are someone in a position of power—a prosecutor, say—that wrong hunch you’re committed to can cause real harm.

Henry digs into the ways in which even people trained to detect lies rarely bat above a 60% average in correctly guessing when someone is lying. This allows false accusers to be taken seriously while genuine protestations of innocence are ignored—things that could be resolved elsewhere, but once the people working the case become convinced they know the story, it’s very hard to shake them.

She also takes a swing at forensic science, which is tainted by unrealistic claims of accuracy, practitioners who simply make things up, and the failure of judges and juries to understand the real limitations or pitfalls of the various branches (for instance, “bite mark analysis” has been proven to be almost total bunk, but is frequently still admitted in courts; and juries rarely hear about the fallibility of drug-sniffing dogs).

The book can be slightly repetitive, although I did actually appreciate Henry reminding me who a given defendant we’d talked about earlier was, since there are so many of them we hear about in the book. It’s obviously well-researched and Henry, a former public defender, is passionate about the topic and educating the public. Most people are aware that defendants are sometimes convicted of things they didn’t do, but I think there is much less awareness that people can and do plead guilty to things that never even happened, due to the pressures of the system. A guilty plea is perhaps the most damning piece of evidence you can submit to a jury—but it’s not nearly as definitive as we’d like to think.