Extraordinary wrongful convictions, ordinary errors - why measurement matters.

• Author: Bach, Amy
• Position: Wrongful Convictions: Understanding and Addressing Criminal Injustice

We are here today to talk about an extraordinary event in our criminal justice system: a wrongful conviction that can be proved with per se evidence. I am here, however, to tell you that the occurrence is not so extraordinary. 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 the case of the wrongful convictions that we are here to discuss today.

The question is how and why these instances occur. I published a book last year that describes a journey through American courtrooms where such injustice is allowed to continue until it becomes impossible to ignore. (1) When I began my book eight years ago I believed the wrongful conviction literature's analysis. The problems with wrongful convictions could be contained to a neat bar graph which names reasons such as junk science, bad serology, overemphasis on single eyewitness identification, a sleeping lawyer (metaphorical or actual), and overzealous law enforcement who elicited a false confession. Today, I propose to you that there is a root cause underneath these reasons.

1. ORDINARY INJUSTICE

   Now I want to take you back to 2001 when I first saw the court that made me decide to write a book. I had just graduated law school from Stanford and clerked for a federal judge in Miami on the Eleventh Circuit Court of Appeals, and I had the opportunity to write a series of journalistic stories about civil rights for the Nation Magazine.

   I sat in a bunch of different courts. One was in Greene County, Georgia, a beautiful town two hours east of Atlanta where President George Bush's largest fundraiser lives. It was an early morning. I walked up the stairs outside the courtroom and there was a swarm of people all surrounding a man who was the public defender. Most had called him but not heard back. They had never had a substantive conversation about the facts of their cases with their lawyer. But yet standing outside of court, their lawyer would spend five minutes where he would tell them, the prosecutor is offering you this deal. Then, they would go wait in court where another lawyer, who knew even less about them or their cases, would stand at their sides and they would plead guilty before the judge.

   During the first two days 48 people pleaded guilty in this way. 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 attorney, 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 equals 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, hardworking professionals can routinely act in ways that fall short of...