One of the most powerful and important books on the law published in 2009 is Ordinary Injustice: How America Holds Court, by lawyer and journalist Amy Bach. She visited courts from Mississippi to Chicago to New York, examining how everyday justice works -- or, to be precise, doesn't work.
When she saw things falling through the cracks, she looked into the cracks and found out why, and what happened. She found not only overzealous prosecution but under-prosecution, as well as overworked defense lawyers and judges. Overall, she found chummy courthouse communities where parties who are supposed to be adversaries have little interest or incentive to call attention to the injustice and incompetence they see. Defendants and the public that is supposed to see justice being done are the victims.
In a time when wrongful convictions and exoneration have become almost routine, and the Supreme Court is taking up numerous cases about prosecutorial wrongdoing and ineffective assistance of counsel, Bach's book documents the reality on the ground in an unprecedented way. This week Supreme Court correspondent Tony Mauro interviewed her about the book, which was published by Metropolitan Books. (Photo of Amy Bach by Rachel Gracie.)
Mauro: This has been an eight-year odyssey for you. What got you started, and how did a theme crystallize for you?
Bach: The book began when I was writing a series of stories about civil rights for The Nation magazine. I had the chance to sit in a bunch of courts and watch, including one in Greene County, Georgia. There I saw a public defender plead 48 people guilty in a little over a day. In court, several cases broke down with people crying saying that they didn’t understand what was happening to them as they were pleading guilty. The reason was that their lawyer was doing little more than communicating a plea deal from the prosecutor. He never talked to them or investigated their individual circumstances. One woman said, “I didn’t know I was going to jail” when the judge was meting out a sentence she had supposedly agreed to. When I talked to the prosecutors, defense attorneys and the judge, I asked them how they thought things went. And they all said, essentially, the same thing: fine. The defense lawyer said something I will never forget: “Nobody could say that they didn’t get their day in court.”
What astonished me, and what made me want to write a book is that smart, committed hard working professionals could routinely act in ways that fell short of what it is people in their positions were supposed to be doing. And not even realize that anything is missing. Or that their behavior had devastating consequences for peoples’ lives. This idea became the central notion of ordinary injustice: Mistakes had become routine and the legal professionals could no longer see their role in them.
Mauro: What basic problem did you find in the justice system, and what are the moving parts?
Bach: My book is about professionals -- people like you and me – who become more attached to people we work with than performing the checks that make the adversarial system work. A certain culture develops where attorneys and law enforcement agree to go along rather than push back and say that someone who works in the system is openly violating the law or not doing his job properly. Nobody is standing up to say that what looks like justice is actually not. At times, problems come to light (usually because of an outsider) and the community blames one person, a “bad apple” if you will. But in fact, an entire community helped to keep this individual’s dysfunction in place. Also, the individual is enabled by certain uniquely American failures of how America holds court. These failures are widespread: prosecutors have too much discretion to bring a case; prosecutors don’t have to coordinate with police; defense attorneys can be incompetent and not be reprimanded if they fall down on the job; and a judge can grab power and disregard peoples’ rights in the absence of proper checks.
Mauro: How widespread is the problem? We hear about the sleeping defense lawyer and the innocent people released from death row, but it seems from your book that these are not aberrations.
Bach: Whenever I speak at a law school or an event, someone asks this question, and maybe follows with an inquiry into why I didn’t focus on all the great prosecutors out there. Why are people inclined to think stories of injustice are aberrant or outliers? Do they doubt an account because it doesn’t jibe with some body of evidence about the justice system’s operation? Because right now that body evidence truly doesn’t exist. Organizations like the Innocence Project have given a wonderful window into how justice goes wrong, but DNA evidence does not exist for the millions of people who experience the criminal justice system. Besides DNA evidence, the only other real scorecard we have are the results of the rarest of events: the big trials which show a community that crime is being addressed. In short, because America leaves its local courts completely unmonitored and unmeasured, we don’t have any idea how widespread the problem is.
Mauro: Talk about Miss Wiggs, and the other individuals you found who are aware of the problems, and why they are thwarted in making the system work better.
Bach: My book features many heroes. Miss Wiggs is one. She is a court clerk in Quitman County, Mississippi who kept a list of cases that were supposed to be presented to grand jury but never were. I used her list as a roadmap to find out why the prosecutor wasn’t pursuing many important cases. One of my favorite “upstanders” is a paralegal in Greene County, Georgia who keeps on appearing before the county government to decry the terrible representation that defendants were receiving. And there’s an attorney in Chicago who initiates an investigation in a case he himself prosecuted decades before. Due to his speaking up, two 17 year old boys who had been convicted of raping and murdering a little girl were released on the basis of DNA evidence. Today his former colleagues despise him. One former detective refers to him as “the most despicable human being I know” – really, for breaking rank. While all these people tried to make a difference, for the most part, individual citizens are no match for legal professionals working in league.
Mauro: As a reporter covering the Supreme Court and appellate courts, what struck me as I read your book is the level of abstraction at which those courts deal with issues like ineffective assistance of counsel and abusive prosecution, compared to the real-world situations you detailed so well. If you were writing a brief to the Supreme Court, what would you tell it?
Bach: I would say to the U.S. Supreme Court that the reason it faces some extraordinary issues is because over five years it has devised a set of precedents that tend to prevent attention to the ordinary. Last month, for example, the Court heard arguments in Sullivan v. Florida. The case involved a 13-year-old boy who was given life without the possibility of parole for a rape of an elderly woman and a burglary of her home. The question before the Court was whether such a severe sentence to a child this age violated the Eight Amendment’s prohibition against cruel and unusual punishment. Not at issue is Sullivan’s guilt – just this abstract question of whether giving a child a punishment with no hope of release is constitutional.
I asked for a copy of the original trial transcript. I expected boxes to arrive. Instead, I got a pamphlet less than an inch thick. Sullivan’s attorney, who was later disbarred, gave no opening statement, barely any closing, and didn’t do proper cross examination of two co-defendants who implicated the boy -- one even had a sex crimes record that was never brought out. And when the trial judge said that he planned to make sure Sullivan would not get out of prison until he was a very old man, his lawyer never spoke up to say: Do you realize you are sentencing him with no possibility of parole? Maybe the judge’s sentence was such an outlier because it was actually a mistake. Maybe Sullivan is even innocent. Maybe the entire issue before the U.S. Supreme Court could have been prevented if the boy had had a decent attorney from the start. But the Court has created a set of rules which make horrible representation an ordinary occurrence. The mistakes are foreseeable. If the U.S. Supreme Court required lawyers to make fewer mistakes, we wouldn’t have some of the extraordinary problems that currently make the front pages.
Mauro: You don't single out a single cure like more money to make the system work as it should. What are your suggestions for bringing the system back to what the Constitution demands and the public should expect?
Bach: Money alone will not solve the problem of ordinary injustice, since community oversight is what’s critical. But currently, citizens and communities are not equipped with the tools to accomplish this. As of now, there is no reporting system in place to evaluate the performance and outcomes of legal professionals in a court system as there are for teachers in a schools or surgeons in hospitals. Without raw data, citizens and communities are not, at present, equipped with the tools to monitor their courts. And legal professionals will not be compelled to improve their performance. I am currently launching a pilot project to measure state criminal trial court performance. Pilot data and validated metrics will ultimately serve as the foundation for legislated state run programs. While the leading scholars may disagree on what exactly should be measured, virtually all concur that courts are the least studied public institution in America. Ultimately, the project will educate policymakers and the public about the obstacles to improved justice systems.