A reporter looks at day-to-day practices in American courtrooms, and finds them wanting.
Last year in Wilkes-Barre, Pa., two juvenile judges were indicted on charges of taking millions of dollars in kickbacks in exchange for sending children to a private prison. But this shouldn't have come as a surprise to anyone who had studied the daily procedures in their courtrooms.
For years, child advocates had noticed that the judges didn't read kids their rights, and that they didn't assign attorneys to children who arguably needed a lawyer the most. The judges openly held sentencing hearings in which kids had no advocates and that lasted under two minutes; and they gave outrageous sentences, such as wilderness camp to a girl who had lampooned her principal on her My Space page.
What was astounding was that the Wilkes-Barre court had operated this way for so long without protest from attorneys, and without media scrutiny. The likely reason: the court procedures over time had come to seem “ordinary.”
The ordinary may not sound or look like news at first. But there are places in America where the ordinary has become so degraded that it is in fact extraordinary, or ends up with extraordinarily catastrophic consequences, as in Wilkes-Barre.
There are times when the “ordinary” can jump out at you like a calling. This is what happened to me in 2001. The Nation magazine had given me a year to write about civil rights, and so I visited many courts. In a courtroom in Greene County, Georgia, for example, I watched a public defender plead 48 people guilty in two days. Many of his clients never had a substantive conversation with him about the facts of their cases. On the day of their court hearing, however, he would spend a few minutes telling the defendants about the deal offered by the prosecutor.
Then, another lawyer, who knew even less about these people or their situations, would stand beside them while they pled guilty before the judge. As I looked on in court, several cases broke down with people crying, saying that they didn't understand what was happening to them. One woman was saying over and over again, “I didn't know I was going to jail.”
Afterwards, the prosecutor, defense attorneys, and the judge all told me they saw nothing wrong with the process. I found out later that that year the public defender represented about twice as many people as the American Bar Association (ABA) recommends as the absolute maximum that an attorney can handle. But the people who shaped justice didn't seem taxed. “We have successfully done a 10-page calendar in one day,” the public defender boasted on that first day I saw him. He said it proudly as if speed equaled success. When I asked him if he felt people were treated fairly he said something I would never forget: “Nobody could say that they didn't have their day in court.”
What fascinated me then and now is how smart, committed, hard-working professionals can routinely act in ways that fall short of what people in their positions are supposed to be doing. And still, they did not even realize that anything was missing.
Many did not realize that their behavior had devastating consequences for ordinary peoples' lives. Their mistakes had become so routine that they could no longer see their role in them.
This is ordinary injustice.
There was something else I noticed in that Georgia courtroom. As I watched the cases proceed, it became increasingly harder to hear what was going on. The prosecutor and defense attorney huddled around the bench, speaking softly to the judge. It looked like they were all on the same team – rather than opposing advocates duking it out before a neutral arbiter. Steve Bright, of the Southern Center for Human Rights in Atlanta, asked the judge to speak up, and the judge installed a microphone. But the next day the microphone was gone. I went back and visited this court (with different sitting judges) for the next five years. There was never another microphone. And there was always a huddle.
That huddle made clear to me that the problem is not just with the courts, but how the media reports on them. Too often the press fails to examine court procedures that seem too common to address on the front pages. Then, when problems do come to light it focuses on one person designated as “a “bad apple,” if you will. In Wilkes-Barre, two judges took the fall, but there was a legal community that kept those judges in place and turned a blind eye to the daily flouting of defendants' rights. The community continued to let children go to prison for crimes that didn't merit such punishment, and never said a word that made a difference until outside investigators figured it out. The lesson here is that journalists should take the time to report on the ordinary.
How to Avoid the “Bad Apple” Fallacy
I published a book last year (Ordinary Injustice: How America Holds Court, Metropolitan Books: 2009) that describes a journey through American courtrooms where such “ordinary” injustice is allowed to continue until it becomes impossible to ignore. Working on the book has led me to set out three basic steps reporters need to follow in order to avoid falling into the fallacy of the bad apple.
First, you need a basic sense of what the problem is. You will usually find this by talking to the victims or defendants. In Greene County, GA, the people I met in the hallways who complained their attorney wouldn't meet with them gave me material for probing further. One woman who had been arrested for cocaine disclosed she hired a lawyer after a bad experience with the public defender following an earlier drug arrest.
Second, it's important to look at data. The total number of cases represented by the Greene County public defender stood out after comparing it with the ABA's maximum recommended number of cases for an attorney. You might discover a pattern in a judge who gives outrageous bails for minor crimes, or a prosecutor who takes very few cases and screens out the rest for no apparent reason. Sometimes no data exist. It is your job first, to find this pattern. Once you have this, you need your stories to prove the pattern.
The third thing–the most important and most daunting part–is to get down to basics. To concentrate on the ordinary. To go as low as you can go in the food chain. In the case of courts, it's important to talk to the people who play a role in the system's inertia: judges, prosecutors, defense attorneys, court clerks, county officials and even the guard who sits in the hallway and knows better than anyone how everything works. You are looking to see, in their own words, how injustice works. They are your best sources. Because so often they don't know any other way than to do justice or injustice, for that matter. And they will tell you–point blank–their intentions.
Hard questioning is important. Ask the people who work in the system how they spend their days, what time they go to work, where they sit, how open the boss's office door is, who works for whom, and what various underlings do. Then ask the case-specific questions: why did you decide to prosecute or not prosecute? Why did you decide not to talk to witnesses? How often do you behave this way?
Pay Attention to the Ordinary
In other words, you're asking them to tell you about the “ordinary.” Spend time with them. You should be calling them so many times that when they pick up the phone they will wonder whether it is you or a significant other. And always tell the truth about what you are doing. Your honesty will be reflected back to you.
In one place I studied, Quitman County, Mississippi, there was no assembly line in court, but rather a court clerk with a list of cases in which people had been arrested but never brought to a grand jury. I took the list of cases and used it as a road map. I met one woman who had been beaten up by her boyfriend with a tire iron, There was plenty of evidence of aggravated assault. There was a police report documenting what happened. A hospital report showed she was admitted for two days because of severe bruising to her back. And there were pictures of bloody bruises on her face. Plus, her daughter and niece had been watching the beatings from inside a locked car. This woman never went back to live with her boyfriend. She moved in with her mother the morning after the assault.
Why wasn't her case prosecuted? I interviewed the players and couldn't figure it out. Until the court clerk examined the records and found that there hadn't been a domestic violence case prosecuted in 21 years.
I also learned that the district attorney prosecuted only 24 percent to 35 percent of the cases that by law he had to present to grand jury. Now I was ready to figure why this was happening and to talk to all the players. I went to the prosecutor and told him I was writing a book about how courts do and don't work, and that I was interested in the issue of prosecutorial discretion. And what I learned from talking to him was that he would often thoroughly investigate and prosecute cases that he thought he could win. He would go whole hog for a big murder case that would make the front pages.
But in cases where no one seemed to be watching, he or his investigators could simply put them aside.
Lack of Investigation
In fact, the prosecutor often had no idea what he was passing on. Instead he used an investigator to screen cases. And this investigator often didn't investigate or communicate with police. And since prosecutors have carte blanche to decide what to investigate, no one checked that the decisions were good ones. And entire categories of cases would disappear.
Leading scholars agree that courts are the most unexamined public institution in America. No one keeps track of what kinds of cases go and don't go to court. We have no idea how many cases are being pled, what kinds of crimes are not being prosecuted and for what reasons, whether people are being forced to plead guilty without lawyers, or are even appointed lawyers.
We have no idea how much money is spent on indigent defense on a per-case basis across the country. Yet communities know how much they spend per pupil, and what that investment yields in terms of test scores, teacher-student ratios, and graduation rates. Reliable data just simply do not exist on how much we invest in protecting constitutional rights in the legal system.
Reporters can help answer questions like how many cases get put aside for what reasons, how many people spend in jail before pleading guilty, how high bails are for what crimes, and the costs of holding people in jail, not only to the county but in terms of collateral consequences, such as loss of homes and jobs, welfare expenditures.
Jeremy Travis, president of John Jay College of Criminal Justice, writes that 47 million people have criminal records – approximately 25 percent of the nation's adults. Yet a public institution that affects one quarter of the nation's adults goes completely unmonitored and is unaccountable. We don't leave other public services unexamined–our schools, our water supply, our hospitals. Why do we turn our eyes away from the ordinary business of the courts? We must start paying attention to the ordinary, because the ordinary is where it all begins.
Amy Bach, a journalist and lawyer, is the author of Ordinary Injustice: How America Holds Court (Metropolitan Books: 2009) which received the Green Bag law review award for exemplary legal writing. This essay was adapted from a talk she delivered on Feb. 15, 2010, as part of the Law, Politics, and Media Lecture Series at the S.I. Newhouse School of Public Communications, Syracuse University.