How the ‘New Normal’ Convicts the Innocent

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James Doyle

Terence Miller is a New Jersey man convicted of a drug offense in 2011, and sentenced to five years in prison. In 2013, he appealed his conviction on the grounds that the trial court judge violated his rights by refusing to delay his trial until he received the assistance of adequately prepared counsel.

His appeal was denied by the New Jersey Supreme Court in New Jersey v Miller.

But what could we learn if we assume that Terence Miller is innocent?

Examining Miller’s case based on that assumption can show us how a criminal justice system reacts to the pressure of huge caseloads. Too often, quality and safety are sacrificed to generate “production.” The system drifts inexorably up to, and then past, its safety margins until its safety devices lose all meaning, and the system breaks down completely.

Miller first met his public defender in a courthouse stairwell on the morning of his trial.

Miller’s defender never talked to any witnesses, to Miller’s former attorney, or to public defender investigators. He did not visit the crime scene. He did talk with the prosecutor about a guilty plea.

And he did ask for a postponement. Twice. But the trial judge, anxious to send the message that he, not the public defenders’ office, controlled the docket, denied those motions, and forced the case to trial although there were other cases to try in its place.

According to the New Jersey Supreme Court, the refusal to delay the trial was a lawful exercise of judicial discretion. The sole dissenting judge said the majority’s opinion “exalts the trial calendar over a just trial.”

The New Jersey court’s action drew an eloquent jeremiad from Andrew Cohen in The Atlantic.

“Can a lawyer ever be deemed ‘competent’ if he doesn’t know anything about his client, his client’s case, the witnesses for or against his client, or the evidence against his client?” Cohen asked.

“That the New Jersey Supreme Court answered this question ‘yes’ tells us that there really is no right to counsel.”

Cohen’s vehement argument is that 50 years after Gideon v. Wainwright, guaranteed a right to counsel, it is time to stop holding Bar Association dinners to commemorate Gideon and mustering blue ribbon commissions to study its ineffectiveness—and to do something about providing adequate lawyers for the poor.

Fair enough. But assuming Miller’s innocence could show us that something besides public defenders with more money and/or fewer cases is necessary to avert a wrongful conviction.

Before we can see these lessons we have to give up our reflexive approach of seeking out a villain to crucify.

We usually focus like jacklighted deer on one individual’s failures; then we enjoy flaying the guilty.

Restraining ourselves won’t be easy in Miller’s case because delectable targets for blaming and shaming abound. We have the hapless defender; the trial judge mesmerized by the awesome god Docket, and his own prerogatives as Docket’s high priest; appellate judges with the backbones of éclairs.

But as Andrew Cohen points out, there is no lone villain in State v. Miller. No public defender could convict Miller on his own. If it turned out that the criminal justice system failed Terence Miller, everyone described in the New Jersey Supreme Court’s opinion (and that opinion’s authors too) will have contributed.

The system will have failed Miller as a system.

Everyone, from the cops on the arrest scene to the judges on New Jersey’s highest court will be to some extent responsible, if not by making a mistake, then by failing to anticipate or intercept someone else’s.

The Miller case spotlights the enormous bet the criminal justice system has placed on end-of-process inspection of cases. We rely on the adversary trial as our principal—maybe only—tool for controlling quality. The police “make” the case, then the lawyers “try” it. If it passes the trial ‘s courtroom test at the end beyond a reasonable doubt, then it’s good enough.

Quality expert W. Edwards Deming once described this model as “I’ll burn the toast, you scrape it.” A rational system, he argued, would aim to create quality upstream, not try to correct for its absence downstream.

Besides, all inspection processes end up being captured in the long run by the people being inspected: by people whose first concern is their own convenience and security. Miller shows that principle in action.

In quality-conscious manufacturing companies (Toyota is one famous example) production workers are empowered to “stop the line” when they spot the first hint of a defect. Not in criminal justice.

Judges are not blamed when the wrong man is convicted. They are blamed (and reassigned by their superiors) when they allow a caseload backlog in their courtrooms. For a trial court judge safety lies in a clean docket. As a result, no one in criminal justice (certainly no defender) can be allowed to stop the line.

In Miller’s case none of the judges involved was trying very seriously to conduct an inspection of the law enforcement product as it came along the line. The trial judge was anxious to keep things moving in his courtroom because he knew he was being inspected for that.

The appellate judges, conscious that this trial judge’s approach represents business-as-usual in the trial courts, were painfully aware that granting relief to Miller would cram their appellate docket, when the legions of others who shared Miller’s experience appealed their convictions, creating a whole new backlog at the Supreme Court level.

So, the judges solve their problems by creating one for the defenders. Without capable defenders prodding the inspection, the jurors to whom we assign the final inspector’s role are crippled, and that’s a problem for the innocent accused. Without a coherent adversary presentation, jurors are helpless to carry out any inspection. Citizen jurors are designed to be a check on government power, but jurors inspect outcomes, not processes.

The problem revealed in Miller is not just an unprepared public defender: a problem with an apparent silver bullet (more money!) solution.

The refusal to grant a brief postponement was not the bizarre act of an eccentric judge who was having a bad day. It was what we should expect from a system crushed by the pressure to turn out “product.” It was, as Susan Vaughan described the decision to launch the doomed space shuttle Challenger, “a mistake embedded in the banality of organizational life.”

No one ever consciously decided to renounce the high principles announced in Gideon; Miller’s experience was constructed by a process of silent drift.

The defender caseloads went up in increments, not all at once. Short-cuts, triage, and “workarounds” multiplied. Small opportunities to increase staff or salaries were ignored, one at a time. Pressure to plead guilty is ratcheted up one turn today, then another the next year.

Trials with minimum preparation became normal, and—in step with the process of the “normalization of deviance” that Vaughan identified in the Challenger tragedy—decisions to deny continuances became normal too.

This is crucial to understand because the situation we see in Miller’s case doesn’t mark the end of this process; it just sets up the “new normal.”

As safety expert Sydney Dekker explains, “Each step away from the original norm that meets with empirical success (and no obvious sacrifice of safety) is used as the next basis from which to depart just that little bit more.”

Here, the docket kept moving; no one has proven yet that Miller is innocent: success.

Charles Perrow once observed that Murphy’s law is wrong: everything that could go wrong usually doesn’t, and then we draw the wrong conclusions. If there is no smoking wreckage in sight we think the system must be safe.

This is exactly the dangerous point of view that the New Jersey Supreme Court—drawing on United States Supreme Court opinions—not only accepts, but hopes to enforce.

So, with even more cases on tomorrow’s docket, we will push the envelope a little further. In the next case, the 50 minutes that Miller got with his lawyer in the stairwell before trial could be 40 minutes. Or 30. Or, maybe, on the telephone instead of in the stairwell.

This is why assuming an exoneration in a case like Miller’s, and analyzing it in the right way, is so important. (And given the sketchy trial Miller was afforded, who can be confident that the wrongful conviction of Miller was impossible?)

As a diverse range of stakeholders pointed out in the National Institute of Justice’s recent publication Mending Justice: Sentinel Event Reviews, the goals of have quality and safety require an all-stakeholders learning process that is focused on cutting future risk, not on blaming some individual, or (more likely) triggering a round of reciprocal blaming, in which Miller’s defender blames the judge, who blames the lawyer, etc., etc.

Once we decide that blame is beside the point we can begin to see how everyone in the system is to some degree individually responsible for its collective outcomes.

And we can begin to understand how “everyone” includes players far from the scene of the trial who make the policies (e.g., declarations of wars on drugs and broken windows) and the budgetary decisions that shape the frontline environment and initiate the drift.

Raise the caseload to a certain level and this sort of thing is to be expected—almost inevitable.

Yes, hire more defenders, and pay them better, but don’t think that’s a full cure. No indigent defender can be held solely responsible for causing a wrongful conviction in circumstances like Miller’s, but no imaginary paragon of a well-funded defender can be assigned sole responsibility for preventing one either.

Safety (and its opposite) in criminal justice can no more be seen in a single participant than “wetness” can be seen in a single molecule of H2O.

We have to find a way to remember to see the system as a system.

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

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