Excerpts

A young woman in a leather blazer was talking in muffled sobs with the judge. While a lawyer was looking for the file, Tasha McDonald stood before the judge alone. She was asking for her case to be continued.

 

“How many times has he talked to you?” the judge asked her lawyer.

 

“Once,” said the woman. The judge wearily announced that her case would be rescheduled to a different day.

 

In the hallway, McDonald was crying hard. When she calmed down she told her story. A single mother of three young girls, she freely admitted to having applied for a Sears credit card in the name of a colleague with whom she worked at a luxury vacation community. McDonald had the card sent to her own address, made herself a secondary user, and then bought $1,895.35 worth of merchandise: beds, sheets and pillowcases, a CD player, a microwave, a toaster oven—“everything for the house.” She also bought a small trampoline for her eldest daughter, a ten- year old, who had just been diagnosed with scleroderma, a hardening of the skin that can weaken limbs. The trampoline, she said, was therapeutic, to help her daughter regain muscle control and mobility.

 

McDonald had been charged with financial identity fraud. She knew she had to be punished, but had only found out from her lawyer in the hallway that the prosecutor wanted her to serve 90 to 120 days in a detention center or jail. If incarcerated, she feared she would lose her job, her mobile home and car, both of which she was still paying off, and become a burden to the state. “If I do four months in boot camp you know where my home is going,” she said. She had already repaid Sears for the goods.

 

There were alternatives. Instead of jail, she could be sentenced to do community service or to attend one of various halfway houses or work release programs designed so people convicted of minor felonies can keep their jobs if they have them. She could also have been sent to a diversion center, which collaborates with minimum- wage employers like processing plants or fast- food restaurants. Inmates work during the day to pay for room and board, and then, if there is money left over, to pay fines, a mortgage, or to support family members.

 

Her lawyer contends that the results would have been the same, no matter how much investigation he did. However, if he had argued that McDonald shouldn’t be taken away from her children, due to her circumstances, she might not have ended up facing any jail time at all. Certainly prosecutors and judges are likely to be more sympathetic to a defendant whose motive comes down to poverty or an ill child. Yet the odds that the judge or prosecutor knew about McDonald’s particular situation were slim. You could hardly blame them.

 

On the other hand, maybe you could. This book examines how state criminal trial courts regularly permit basic failures of legal process. Ordinary injustice results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them. There are times when an alarming miscarriage of justice does come to light and exposes the complacency within the system, but in such instances the public often blames a single player, be it a judge, a prosecutor, or a defense attorney. The point of departure for each chapter in this book is the story of one individual who has found himself condemned in this way. What these examples show, however, is that pinning the problem on any one bad apple fails to indict the tree from which it fell. While it is convenient to isolate misconduct, targeting an individual only obscures what is truly going on from the scrutiny change requires. The system involves too many players to hold only one accountable for the routine injustice happening in courtrooms across America.

 

“Most people are in no position to do the tedious leg work necessary to find the pattern of ordinary injustice and show that a particular kind of crime is lost to follow up or that the accused is being denied an adequate defense.”