Friday, November 11, 2011

This Is Not a Post About Joe Paterno

If there's one group (other than criminals) you'd expect to have some earned cynicism about how the criminal courts of this country work, it might be criminal defense lawyers.
Yet when the story went out over the listserv of the National Association of Criminal Defense Lawyers this morning, there was a surprising degree of shock.
  • How could she?
  • How can she?
  • How did she get away with it?
  • But isnt' that unconstitutional?
  • How could it have happened?
To which I was inclined to respond (but restrained myself, realizing that there was no good reason to give up what could be a full-length blawg post in favor of a two line snark)
What?  You think this is something special?
Wake up and smell the dog shit.
I'm referring here to the allegations, and they're really no more than that (see, also, this week's maybe deserved and maybe not vilification of Joe Paterno) in this 31 page, 12 count Notice of Formal Proceedings brought against Superior Court Judge Amanda F. Williams, Chief Judge of the Brunswick [Georgia] Judicial Circuit in the Georgia's Judicial Qualifications Commission.
Amanda Williams Notice
R. Robin McDonald, in the Daily Report, cuts to the chase.  "The JQC," she says, accused Williams of "willful misconduct in office" and "tyrannical partiality." Specifically, she's charged with
jailing defendants indefinitely and then lying to the JQC about the practice.
The JQC notice also accused Williams of improperly allowing members of her family to litigate cases in front of her, allowing her social and political relationships to influence her judicial conduct, and improperly endorsing a local candidate for district attorney.
The charges claim Williams issued ex parte orders on substantive legal matters without the knowledge or input of all parties involved in disputes, held hearings in chambers without a court reporter present, improperly jailed people who appeared before her, demonstrated an open bias against defendants and used "rude, abusive and insulting language" in court. 
These isn't the first time Williams has been publicly called to account.  Back in March, her handling (or mishandling) of four drug court cases was the subject of an episode of NPR's This American Life.
I'm not going to rehash the specifics of the charges here (you can read them in the Notice, read detailed summaries in McDonald's report, and get more info from the NPR story if you really want it.  The truth is that they don't matter except to Williams and the JQC if she chooses to defend herself and to the people involved.
What interests me, and the reason I'm writing about it, is the shock and dismay.
There are three kinds of things that go wrong with our criminal justice system.
There's honest mistake.  The evidence all lines up. Everything is done right.  Even with best practices.  But an innocent person gets charged and sometimes convicted. It happens and there's really not much that can be done to prevent it.  I mean, don't ever make a mistake isn't really something we can write into law.  We can do things to try and ameliorate the damage, and we can certainly try to build in better quality control, but mistakes are inevitable.  Try as we might, we can't write them out of the system.
There's systemic problems.  AEDPA requires federal courts to affirm state court decisions that violate the Constitution as long as the violations aren't too obvious; the Supreme Court is either fine with that or thinks it doesn't encourage enough constitutional violations. Appellate review is mostly designed so that even when a defendant receives an error-prone, unfair trial, he has no remedy unless he can also demonstrate that the outcome would likely have been different if he'd been properly tried.  We can fix those things only by changing the rules, reforming the system itself.  It's hard, but at least in theory it can be done.  Hell the forces of righteousness  by god have been doing it for years, thereby creating many of the systemic problems with the system.
But there's a third kind of problem with the criminal justice system, neither wholly inevitable nor subject to remedy by effective lobbying and electioneering.  It's the stuff of the charges against Chief Judge Williams.  It's the actions of the corrupt, former juvenile-court judges in Luzerne County, Pennsylvania.  It's in the work of the forensic folks who don't actually do the tests or honestly and accurately report the results but testify to what will help make the case. It's the testilying cops and the prosecutors and judges who let them get away with it. It's the prosecutors who cheat.  It's the gropers and molesters at TSA and the Maricopa County Deputy who paws through defense lawyer files while the lawyer is giving a sentencing speech.  It's Joe Frank Cannon who slept through Calvin Burdine's death penalty trial.  And it's the judges who can't bring themselves to admit that when the lawyers or the jurors nod off during a trial the conviction should automatically be reversed.
This third kind isn't human error and it isn't systematic failure.  It's instead a function of the venal and corrupt, of the lazy, of the dishonest, of those seeking preferment, of the morally and ethically challenged.
And we can, in fact, do something about this third kind of problem with our criminal justice system.  We can't stop it entirely, but we can make a difference.
In Ordinary Injustice: How America Holds Court, Amy Bach makes the point simply.  Her thesis, she explains is that
it takes a community of legal professionals to let a sleeping lawyer sleep.
Which is exactly right.
Let's assume for a moment that Judge Williams is in fact guilty of all the things the JQC charges.  She's been on the bench for over 20 years. How did she get away with it?  And for so long?  Oh, she's been under investigation, reports say, for over a year now.  So maybe 19 years before anyone started looking into it?
19 fucking years of corruption?
How did the judges in Luzerne County get away with it?
How does Sheriff Joe?
Who the hell allowed Joe Frank Cannon to try a capital case?
The answer, sadly, is that we all did.
Every lawyer who didn't/doesn't call out the corrupt, the venal, the incompetent, the lazy.  Every lawyer who lets it go.  Some have more clout than others.  Some have the ear of the press or the ethics commission or the judges.  Some work for the bosses whose underlings . . . .  And some have blogs.  Or blawgs.
And no, it's not enough.  And we can't stop it all.  But we can, achieve some.
So the answer to how it could happen is that we let it.
Which is the problrm Martin Niemöller understood.
First they came for the Jews
And I did not speak out because I was not a Jew.

Then they came for the Communists
and I did not speak out because I was not a Communist.

Then they came for the trade unionists
and I did not speak out because I was not a trade unionist.

Then they came for me
and there was no one left to speak out for me.
Because "Round up the usual suspects" isn't really the way to do the job.
Though I suppose it to has its place.


  1. Nice post. I have no feel for just how often serious corruption occurs and the frequency with which it's ignored. Are there any stats on this?

  2. If there are, I don't know about them.