July 2017

Serving justice: Mitigating and preventing injustice

Americans love to talk about their belief in “justice for all,” but the reality can be very different. 

A new ABA book, Broken Scales: Reflections on Injustice, by Joel Cohen with Dale J. Degenshein, looks on 10 case histories and interviews those involved who suffered from or participated in legal system injustices.  Looking at cases surrounding such issues as same-sex marriage, DNA evidence, the kidnapping and rape of Tawana Brawley, 9/11 and the Red Scare, the net result is an exploration of injustice from multiple perspectives.

What causes injustice? Sometimes it’s “arrogance, laziness, self-dealing, or just plain human failings of those tasked with administering the system,” Cohen writes. Other times the game is played fairly but the system got it wrong.

Cohen, a white-collar criminal defense lawyer and former prosecutor in New York, has practiced for nearly 30 years, including handling complex civil litigation, at Stroock & Stroock LLP in New York. Contributor Degenshein has practiced law since 1984 and has worked at Stroock & Stroock since 2007.

We asked Cohen and Degenshein to tell us more:

Your book includes a case in which you say “no one in the courtroom — not the prosecutor, the judge, or the defense counsel — pays attention” and that laziness cost a man a prison term 14 years longer than it should have been. How common is that type of injustice, and what can be done to prevent it? 

Unquestionably this situation, involving Michael Wayne Haley in Texas and discussed by his appeals lawyer Eric Albritton, was human error. No one realized Texas’ habitual offender statute did not apply so that he should have been sentenced to a maximum of two years, not 16.  And while in an ideal world mistakes should not occur, they do, and that is hard to prevent. 

The more difficult question, though, is how did the prosecutor and the courts allow Haley to remain in jail when Haley himself – at that point, pro se – figured out the mistake and brought it to the court? Haley remained in prison long after what should have been a two-year term and had to fight to be released because Texas wouldn’t rectify the error by simply admitting the mistake and releasing him.  That is the true injustice.  Once the mistake was undeniable, Texas (lead by its then solicitor general, Ted Cruz) fought against releasing Haley all the way to the U.S. Supreme Court. And even the Supreme Court didn’t immediately rectify it.

Several of the cases you cite – including the woman convicted of spying during the Red Scare and the Egyptian man studying in the U.S. who was imprisoned on false charges related to 9/11 – seem to be directly related to the heightened tensions of the day. Can we correct for those sorts of cases of injustice?

Miriam Moskowitz likely went to jail in 1950 because the U.S. was consumed by communism, and because Senator Joe McCarthy and Roy Cohn terrified the nation.  Did she really have any chance of a fair trial?  Any jury would have been in fear of the threat of communism.  And remember, her case was tried a decade before the decision in Brady v. Maryland, which requires prosecutors to disclose exculpatory evidence to the defense.  So her lawyer could not have known that a key witness against her had given directly inconsistent –exculpatory – grand jury testimony.

Abdallah Higazy, an Egyptian national, was remanded to solitary confinement as a “material witness” because it was wrongly believed that he possessed a device which allowed him to talk to planes from the ground while staying at a hotel across from World Trade Center on 9/11.   He spent 34 days in solitary confinement and even made a false confession at, shall we say, the heavy hand of an FBI agent.  As it turned out, there was no question that he was framed.  The device wasn’t his, wasn’t in his room and certainly wasn’t in his safe next to his Koran, as was reported to the FBI.  Given the tenor of the day, it appears that the government simply credited the hotel employee’s false report.  

As to what can be done, there is no question that prosecutors’ offices are overburdened but perhaps a system can be implemented where cases receive an independent pre-indictment review by a colleague who is walled off from the initial investigation.  In the first case we write about, prosecutor Marty Stroud talks about how he rushed into a murder prosecution (of what turned out to be an innocent man) without really discussing it in-house.  And it turns out that he saw police documents for the first time years after the conviction. 

So, maybe a separate and unbiased set of eyes by someone who is not so steeped in the file, not wedded to a point of view, will help keep the case in perspective.    

Are there some fairly simple reforms that could be instituted to minimize injustice?

Many things can be done, although none are easy.  Beginning with perhaps the most pressing – better funding so that all who need counsel can have counsel appointed! 

Also, discovery in criminal cases is a major issue.  It is shocking when you think that discovery in a criminal case is far stingier than in a civil case, yet a person’s freedom is at stake. Grand jury testimony and prior statements of a witness are not typically available to a defendant unless that witness testifies at trial.  Even then, the defense may not get it until the last minute.   And while prosecutors must give the defendant exculpatory (Brady) material, some do so by providing millions of pages and hundreds of tapes, leaving the defendant to figure out what is actually relevant, all while a trial date nears.  This is in contrast to the prosecution, which has had months, sometimes years, to prepare its case even before it brings it.  Steps can be taken by judges, and lawyers, to prevent an injustice that might result from this imbalance.  

In addition, many judges will tell you that mandatory minimums – inflexible sentencing requirements for certain crimes – are unjust; they do not allow for discretion in sentencing.  While a legislative act would be needed to reverse these mandatory minimums, it would let judges make sentencing decisions on a range of factors and the specific facts before them.

Your book includes interviews with those at the center of each example of injustice, who speak about how it affected their lives. How can or should we compensate the victims of injustice?

Yes, people who are improperly incarcerated should be awarded money, but let’s not call it “compensation.” As wrongly convicted Kenneth Ireland makes clear in one of the cases we write about, no amount of money could compensate him for what he went through:  “Ask them if they would trade 21 years of their life for $6 million.  For me, not a day!  …. The money doesn’t make up, in any way, not even close to make up for the entire time in prison.”   

 Think about Glenn Ford – under Louisiana’s statute, he was not allowed to recover money after spending 30 years on death row in solitary confinement for a murder he didn’t commit, because it appeared that he may have been in possession of the gun and some jewelry from that crime.  He walked out of prison and was given $20 and the clothes on his back. That’s it!  Now, people improperly incarcerated can’t be adequately compensated by money, but to send a person out into the world with barely enough money for lunch is simply inhuman.   

Public opinion plays a role in some cases of injustice. How can that factor be mitigated?

Justice Benjamin Cardozo famously said: “The great tides and current which engulf the rest of men do not turn aside in their course and pass the judges by.”  Those words, and the way in which judges put aside those prejudices, is the subject of my earlier book published by the ABA: “Blindfold’s Off:  Judges on How They Decide.”

As the 13 federal court judges interviewed in “Blindfolds Off” said, they ignore public opinion, ignore the press.  Can that possibly be so, even though federal court judges are appointed to the bench for life?  In many states, judges are elected for a term of years, or are subject to retention elections as was Iowa’s former Chief Justice Marsha Ternus, who sat on a unanimous court which held that Iowa’s constitution permitted same-sex marriage. The U.S. Supreme Court, of course, later found the same under the U.S. Constitution.  But in Iowa in 2009, with an influx of out-of-state money used to advertise the “horrors” of that decision, Justice Terus and two of her colleagues lost their retention elections.

Importantly, the Brennan Center for Justice reports that state court judges are more likely to sentence harshly in election years.  Even so, many people oppose life tenure for state court judges.  Perhaps longer terms, without the threat of retention elections is the answer.

Another area: most prosecutors campaign on tough-on-crime platforms.  That is one thing.  But in Montgomery County, Pa., the campaign issue was whether to prosecute a specific individual, Bill Cosby.  There has since been a mistrial, and the prosecutor announced his intention to try Cosby a second time. Maybe that is precisely what should happen. But isn’t this a perfect situation for an unbiased member of the prosecution team to take a “second look”? 

Is there a specific aspect of the “continuing and important conversation about injustice in America” that you think we as a country should focus on?

There are a number of aspects.

Certainly one goal must be equal justice for everyone, regardless of race, social or economic status.  And it’s important to start that early.  If someone can’t afford a lawyer and loses his home, or loses visitation – that makes an important impact on their future life choices and the options available to them.

Many criminal defendants can’t afford bail. Five hundred dollars can be an impossible reach, and so they sit in jail “awaiting trial.”  When that happens, they can’t work, can’t pay rent, can’t make car payments, can’t pay child support – in essence, they become non-members of society.  And then, they often plead guilty, regardless of whether they committed the crime.  It’s a trade-off: plead guilty and get out of jail; don’t plea and stay in jail until trial. 

And while prosecutors oftentimes exercise discretion when charging defendants, Attorney General Jeff Sessions is removing discretion and demanding that that the highest crime available be charged.  This can only lead to mass incarceration.

Our justice system is likely the best there is.  But there are flaws and cracks that must be looked at and corrected.  There is no one quick fix; there are too many intertwined and moving parts.  But talking about what is wrong, and right, with the system is a good place to start.

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