Ordinary Injustice

How America Holds Court

Amy Bach

Metropolitan Books

Henry Holt and Company

New York, Copyright 2009

(Buy this book at http://www.ordinaryinjustice.com/)

This book was eye opening for me as well as disturbing.  Understanding the way our court system functions and its liabilities that result from the lack of accountability to the public, as well as the human factor of greed and self-promotion that accompanies many convictions, causes me to wonder what possible solutions can be brought into the mix. I now have a much better understanding of what our culture considers ‘the disposable society’.  Following are some notations from the book that demonstrate the current dilemma our justice system finds itself in:

Indigent defendants:

Pg 17. Public Defender Surrency: The local governing agency that hired him, “didn’t want these people” – indigent defendants- “to get an even break just to start with.  ’They are guilty anyway, what do they need a lawyer for?’ –that is their attitude today.  There is really a consensus among the local people paying their taxes that these people don’t need any defense, much less a quality legal defense.”

Pg 24. Often the courtroom felt like a private party, with the lawyers and judge huddled around the bench, preventing anyone else from hearing.  It looked like they were teammates rather than opposing advocates duking it out before a neutral arbiter.

Pg 27.   They all blamed the problem on sheer volume, a lack of funding for public defense, and on the community’s reluctance to spend money on the town’s poorest and least law abiding.  They also seemed resigned to an unwritten obligation to put the court on auto pilot – to make justice quick and easy and to dispense with the complications that accompany a true  exploration of the facts.

Pg 28.  The real issue here is the poor quality of defense representation throughout the nation.  There are three basic systems for providing attorneys.  It is difficult to rank them comparatively by quality since all three are flawed and tend to come apart when underfunded, poorly staffed, or subject to the whimsy of judges and prosecutors.

Pg 32-3. ..the country’s legal apparatus favors the office of the district attorney…By contrast, the need to provide counsel for poor people accused of crimes is a burden that the U.S Supreme Court thrust on the states in the sixties.  Thus with a more popular mandate, prosecutors tend to receive more money and resources…Congress spent $26 million building the National Advocacy Center in Columbia, South Carolina, to train prosecutors.  There is a similar school in Reno, Nevada, for training state and local judges.  No federally funded counterpart exists for defense lawyers….A report…in 2002 estimated that states and counties nationwide spent $3.3 billion on indigent defense; whereas in 2001 …$5 billion was spent in prosecuting criminal cases in state and local jurisdictions.

Pg 34. Stephen Bright, the president and senior counsel of the Southern Center for Human Rights in Atlanta, had decided in the mid-1990’s that Georgia’s indigent defense system was so bad that his organization was going to keep challenging it until it was brought into line with the ideals of American justice….Bright made a career of championing unpopular causes…and has often worked without pay in defense of people facing the death penalty and on litigation to improve prison and jail conditions throughout the South….Until the state made proper changes, Bright planned to expose and root out bad defense systems, one by one, by observing various courts in action and filing a series of lawsuits claiming violations of the state and federal Constitutions.

Pg 40-1.  To its credit, the State Bar of Georgia…established an Indigent Defense Committee, a group of volunteer attorneys who were supposed to coordinate lawyers and other agencies to help provide better representation and equal justice…His committee interviewed various legal professionals and realized that the system was not what it should be…He discovered that people were being treated in a way that violated “common decency,” and which put the integrity of the state bar at stake.

Pg 43-44.  Bright…put together a team of investigators, mostly recent college and law-school graduates who could build a civil class-action lawsuit against a specific county and the state…They were trying to see if a pattern existed…The investigators thumbed through thousands of files to find individuals who had received excessive jail time…that poor representation had caused overcrowding in the jails…

Pg 52.  Justice Hugo Black:  “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

Pg 54.  The court said…that a lawyer’s representation must meet an “objective standard of reasonableness.”  However, it granted counsel tremendous  leeway by presuming a lawyer is competent  unless a defendant can prove there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”   The Court defined  “reasonable probability: as “a probability sufficient to undermine confidence in the outcome.”…The benchmark for what constitutes adequate assistance is so low that in 2001 in the infamous Calvin Burdine trial, the Fifth Circuit Court of Appeals openly debated whether to affirm a death-penalty decision where the lawyer…had slept through significant parts of his client’s case.

Pg 55.  According to an ABA report published in 2004…,”indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.”

Pg 56.  …It costs a state a lot of money to have people in jail who don’t need to be…while in jail, people can lose their jobs and homes, become welfare recipients, and have their lives ruined – considerations of vital importance to an individual, which, from a policy perspective, also entail significant costs for the state.

…The health of our courts has been left virtually unchecked.

Pg 109-10. …until the accused pleads, he can be detained if bail is not met….Malcolm Feeley, professor of law…found that in a lower criminal court in New Haven, Connecticut, defendants suffered merely by being engaged with the system, and that challenging a charge often cost more than submitting and pleading guilty…It sounds amiss, but a defendant waiting to be punished might have a far harsher experience than the punishment itself, and this is legal.  Thus the incentive to plead guilty to a small crime is huge…A judge who forces a plea by threatening to detain someone longer than what the actual punishment for a crime entails flexes a great deal of power, which raises questions of fairness.

Pg 115-116.  …plea bargaining is the main vehicle for facilitating substantive justice.  Plea bargaining is justified on grounds of expediency.  It also tends to make judges, prosecutors and defense attorneys look good.  Unlike a trial, pleas, by and large, cannot be appealed:  the defendant has in effect bargained away his rights.  Pleas also keep the conviction rates high because a prosecutor doesn’t run the risk of losing in a trial.  And it keeps a defense attorney’s work-load more manageable.  Professor Alschuler has made a comprehensive study of the problem of plea bargaining and coercion. “Once you get used to it,” he said, “you don’t even notice the injustice.” …”I think you ought to use the word fascism,” he said when asked about the conditions in American courts. “Most people don’t understand what rights and procedures are for.  They look to the bottom line: did we do rough justice in most cases?”

Another leading scholar, John H. Langbein, a professor at Yale…has decried plea bargaining as a form of a tortured, forced confession…Langbein argued that adversarial criminal procedure is unworkable as a system of mass justice.  In practice it comes down to “coercion, ..and it is truth disserving.”

Pg 124.  This point essentially rephrased what “substantive justice” is all about: in the basement of the criminal court system, who cares what rights are denied the lower class so long as these people are punished?

Pg 131.  …”The plain fact is that more than nine-tenths of local prosecutors’ decisions are supervised or reviewed by no one.”

Pg 157.  Failure to prosecute the assault…was in a cultural-historical prejudice against a certain kind of crime…”I honestly don’t know what the failure is, if it’s the buddy system or what….referring to a cronyism that he imagined could make cases disappear.  The police would write up a report.  They would make arrests.  The defendants would be taken to jail and charged officially in justice court.  Then nothing.

Pg 189-90.  …prosecutor’s decisions are not transparent, except in those major trials that make it to court.  Prosecutors are not accountable and rarely have to justify their actions or identify the facts that contributed to them. With too little oversight on potentially momentous decisions that are made behind closed doors, prosecutors have no incentive to be neutral, fair, or to seek justice.  Instead, they measure themselves by wins and losses, which is, in the end, a minor part of what their job means to the people who are victims of crime or to the communities that expect their protection.

Pg 193-96. In both under-and-over prosecution, pressures and incentives to win can override a prosecutor’s good judgment when it comes to deciding whom to charge with a crime….Yet there is virtually no check on the prosecutor who acts in this quasi-judicial role.  Instead, the system puts its faith in his professionalism and the belief that the defense or a jury will catch his mistakes….The miscarriage of justice that sent Michael and Paul to prison for 27 years was born of the union between the prosecutor’s drive to convict and the police who wanted to produce a defendant….The focus was winning and not being critical of the methods…Theoretically, a prosecutor and his staff aren’t supposed to be so concerned with winning.  They are suppose to pursue justice…Prosecutors are suppose to act in favor of the victim, protect the defendant from having his rights impinged, and adhere to the laws while reflecting local customs and values…The defense attorney, by contrast, simply has to advocate as best he can for his client. And because prosecutors serve at the pleasure of their bosses, who are usually elected, they are heavily influenced by conviction statistics.

Pg 200.  Prosecutors have an incentive to turn a blind eye to police abuse, in large part because the relationship between them and the police is symbiotic.

Pg 224-25.  Former prosecutor Breen:  He was opening up to the idea that prosecutors who had been operating in good faith could still have other agendas that blinded them to the truth…“When you prosecute someone in a case, you take their worst act on their worst day and judge them by that…It was difficult when you saw them on better days when they are doing the right thing.” pg 230.. He could no longer ignore the must-win attitude of the prosecutor’s office, nor the fall-in-line conduct that trawls in its wake.

Pg 239. In the criminal justice system, this tendency to “focus on a suspect, select and filter the evidence that will ‘build a case’ for conviction, while ignoring or suppressing evidence that points away from guilt” is called “tunnel vision.”  Most inquiries into wrongful conviction cases cite tunnel vision as a cause, though they concede it can be unintentional…  pg 241..If there is one strain running through all the wrongful convictions, it is that jurors don’t take seriously the presumption of innocence when it comes to heinous crimes.  Letting someone off who may rape and kill again is intolerable and unrealistic, so jurors give the burden of proof a pass.

Pg 245-46…a psychology professor and expert on team dynamics…calls the prosecutorial/police experience the “perfect example’ of an “inner-group” relation in which moral standards get adjusted when the group encounters a threat.  In this scenario, the prosecutors and police insist that they convicted the right guys, holding out against everyone else.  A collective view of right and wrong gathers force, often at the expense of reason.  “When you are in that inter-group situation, you have a demonstrable distortion of memory and distortion of perspective.”  The more individuals sacrifice for the group, the more difficult decisions are to undo, and thus the greater the individual’s commitment to the collective belief.  Even when faced with incontrovertible evidence that its beliefs are wrong, the group finds a way to consolidate its view.  The group cannot tolerate error.

Pg 259-60.  Those inside the system are generally unable to see their own errors, much less confront them.  His blindness is a signature feature of ordinary injustice.  The lapses might seem relatively harmless when the sentence is small, like a fine or community service, and so the erosion of rights accumulates unchecked.  Proper procedure is worn away until the oversight becomes too egregious to ignore:  a defense attorney sleeps through a death penalty trial or a prosecutor pursues a case despite evidentiary weaknesses. The point that is overlooked is that these outrages could not happen without the prior, long-standing, day-to-day erosion of the commitment to justice…The public does not have the means to follow court policies or track the decision-making attorneys’ offices.  Voters know almost nothing of the critical decisions related to plea bargaining and sentencing, and even less about the far more arcane process of charging defendants.  Without information at their disposal, citizens are in no position to question the minor or even major lapses of prosecutors.   This lack of transparency is the central obstacle to change and will remain so as long as there is no constituency of users committed to improving  the state’s criminal trial courts.

Pg 261.  Who will rally for the courts when even those who have been injured by the system have given up or don’t have the understanding or means to successfully challenge the system?….Citizens need an ongoing way to assess the performance of the courts so that invisible patterns of injustice can be identified and legislators cannot whimsically withdraw support for a solution once the problem has stopped attracting notice.

To learn more or buy the book, please visit Amy Bach’s website at: http://www.ordinaryinjustice.com/