Al Nye The Lawyer Guy

Ordinary Injustice

By Amy Bach

Metropolitan Books

$27.00, hard cover, 307 pages, 978-0-2019-7447-5 (2009)

            Attorney and journalist Amy Bach spent eight years investigating injustice in our court systems. I’m not talking about the individual instances of injustice that we’ve all read about in the past – false confessions, dirty cops, or the wrongful conviction of the innocent.

            Instead of merely focusing on individuals, Bach investigated the systematic lapses in our court system and shows the reader how justice can fail throughout the entire legal process.

            As she notes in her introduction:

This book examines how state criminal trial courts regularly permit basic failures of legal process, such as the mishandling of a statutory allegation. Ordinary injustice results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them. There are times when an alarming miscarriage of justice does come to light and exposes the complacency within the system, but in such instances the public often blames a single player, be it a judge, a prosecutor, or a defense attorney. The point of departure for each chapter in this book is the story of one individual who has found himself condemned in this way. What these examples show, however, is that pinning the problem on any one bad apple fails to indict the tree from which it fell. While it is convenient to isolate misconduct, targeting an individual only obscures what is truly going on from the scrutiny change requires. This system involves too many players to hold one accountable for the routine injustice happening in courtrooms across America.

            The book is divided into four sections. The first deals with Robert E. Surrency, a public defender in Green County, Georgia who pled most of his clients guilty – even though he had little or no clear idea of the facts involved in their cases.  In four years, Surrency took just fourteen of his 1493 cases to trial. From his point of view, that was acceptable because plea bargaining was “a uniquely productive way to do business.”

            What soon becomes apparent is that this type of defense is widely acceptable in that court system and is even applauded by certain judges there who claimed that “slow justice is no justice.” Surrency was so inundated with clients that he was sometimes not even in court when his clients pled guilty – he was speaking with other defendants in the hallway while a lawyer who knew even less about the cases stood in for him.

            The next section deals with Henry R. Bauer, a city court judge in Troy, New York who, despite being removed from office for judicial misconduct, was still one of the most popular men in the city. Though widely known as a congenial and decent man, and having a stellar reputation as a judge, Bauer: often failed to inform defendants of their right to a lawyer; set excessive bail; coerced guilty pleas; imposed sentences so excessive as to be illegal; and convicted some defendants without their plea or a trail.

            Bach explains in her book that despite these serious failures to uphold the law, most citizens and court personnel believed that Bauer’s method of handling cases was preferable to a strict upholding of the law.

The lawyers didn’t mind because the judge did most of their work for them, and the community didn’t mind because when injustice in the lower courts is ostensibly aimed at keeping the streets safe and the system moving, the only people who suffer are the poor and the neglected — in short, the lower class.

            The problem was that Bauer became overzealous in his attempt to rid the area of crime: he stopped assigning lawyers to defendants who were entitled to them, and he set ridiculously high bails for many minor crimes. He did this for years and no one in the court system complained – until Eric Frazier was sent to jail for stealing items worth $27.77 on fifty thousand dollars bond. Frazier typed a letter of complaint and sent it to the New York State Commission on Judicial Conduct. After the inquiry, Bauer was removed from office.

Bauer had helped clean up the city all right, but his court had regularly failed to take the elemental steps of deciding which defendants needed a lawyer, what had happened in the case, and whether a crime had actually occurred. And almost no attorney in Troy was willing to admit it. This was a tight-knit community; no one wanted to fess up. In the end, friendship and affability trumped the protection of rights.

            Without going into detail, the next section is about a prosecutor in Mississippi who routinely declines to pursue significant criminal matters. One of the cases involved the statutory rape of an eleven-year-old girl. The final section deals with a Chicago prosecutor, his investigators and an entire court system that operates together to achieve a wrongful conviction. Even when it is clear that the conviction was improper, many in the system refused to believe it and failed to take steps to ensure that justice was done.

            Bach’s book is a wake up call to those who are in any way a part of the criminal justice system: judges, clerks, prosecutors, investigators, defense lawyers, jurors and court personnel. Our criminal system of justice is based on adversarialism. Many of the problems highlighted in this book are a result of people in the system failing to aggressively assert the constitutional rights afforded to defendants.

Collegiality and collaboration are considered the keys to success in most communal ventures, but in the practice of criminal justice they are in fact the cause of system failure. When professional alliances trump adversarialism, ordinary injustice predominates. Judges, defense lawyers, and prosecutors, but also local government, police, and even trial clerks who processed the paperwork, decide the way a case moves through the system, thereby determining what gets treated like a criminal matter and what does not. Through their subtle personal associations, legal players often recast the law to serve what they perceive to be the interests of the wider community or to perpetuate a “we’ve-always-done-it-this-way” mind-set. Whether through friendship, mutual interest, indifference, incompetence, or willful neglect the players end up not checking each other and thus not doing the job the system needs them to do if justice is to be achieved.

            Ordinary Injustice is an eye-opening exposé that every judge, prosecutor and criminal defense attorney should read.

            Buy it on Amazon here.