We know D.C. Get our free newsletter to stay in the know.
When Joe Frank Cannon slept through a client’s capital murder trial—and the man he was paid to defend was sentenced to death—the attorney’s conduct raised the question of whether or not a sleeping attorney can provide adequate representation. How much sleep was permissible on the part of a murder defendant’s counsel? How deep could that slumber be? Would mere dozing mean that the man had not been properly defended, or would it take sprawling out on the floor before the jury and snoring? Variations of these questions were wrestled with by an appellate court, but there was one glaring omission: As Amy Bach asks at the outset of Ordinary Injustice: How America Holds Court: “How was it possible that a defense lawyer could fall asleep during a murder trial, and yet no judge, defendant, juror, or member of the bar sitting in the courtroom, no witness, not even the prosecutor objected?” The answer seems to boil down to low expectations. Bach, a lawyer as well as a reporter, demonstrates with one appalling anecdote after another that defense attorneys, prosecutors, and judges often consider themselves too overburdened and harried to attend to constitutional niceties like staying awake. Bach illustrates these problems by presenting three case studies—an overwhelmed and deficient defense attorney for the poor, a prosecutor who avoided trials (especially for certain classes of crimes deemed too dicey, such as domestic violence), and a show trial with racial overtones in which two boys in Chicago were railroaded for a heinous crime they did not commit. Although Bach doesn’t emphasize them in Ordinary Injustice, statistics remain a key part of the debate: The United States has the highest incarceration rate in the world, much of it due to the War on Drugs, which floods the system with nonviolent criminal cases. This tsunami of cases demands time and money, both of which are in short supply. Bach also makes little mention of mandatory sentencing guidelines which clog the country’s prisons. She concludes that in an improved system, the “principal scorecards would no longer be the quick disposal of a calendar of cases, an attorney’s win-loss records or the verdict in a show trial.” She advocates data collection, transparency, and a public venue for complaints. She also mentions the desperate need for funding and demonstrates how one defense attorney handling hundreds of cases at any one time simply cannot be expected to get the same results as an office of attorneys with investigators and paralegals. Whether or not one believes, as Bach does, that curtailing the decision-making freedom or “discretion” of prosecutors and judges is the answer, Ordinary Injustice makes clear thatoverwhelming caseloads require more attorneys—or they will pervert justice.