Amy Bach is an attorney, and author of Ordinary Injustice: How America Holds Court. A look at the normal operations of American jurisprudence, Ordinary Injustice is a profoundly insightful and disturbing book. It is will worth adding to your 2016 reading list. (You can order it below.)
The following is excerpted from the introduction.
America has an adversary system of justice. A trial is a contest between the prosecutor, who represents the state, and the defense attorney, who represents the accused. The facts of the case or an appreciation of the truth at the heart of it arises from the combat between these two sides. The role of the judge is to oversee what happens, impartially enforcing rules of evidence and procedure.
One could argue that the American trial process is meritocratic. The best argument and most compelling application of the law wins. Having one set of lawyers that investigates the facts and says, “He did it,” while another set tests that assertion and says, “He did not” should ideally create a self-checking mechanism. The contest in the courtroom is, in theory, the end result of the tireless work–depicted in so many movies, hit TV shows, and books–of legal troops who scope out crime scenes, pick through garbage, and employ cutting-edge technology to tap a phone or match saliva through DNA evidence.
A person accused of a crime is guaranteed certain rights to ensure a fair process that produces a just outcome…In a perfect world, these rights make certain that facts are subjected to tests, which served to counterbalance the lopsided battle between the state (represented by the prosecutor) and the individual (represented by the defense). The structure aims to protect against foibles such as laziness and the temptation of professionals to collude.
Collegiality and collaboration are considered the keys to success in most communcal systems, but in the practice of criminal justice they are in fact the cause of system failure. When professional alliances trump adversarialism, ordinary injustice predominates…When a lawyer is forced to choose between performing vigorously in his role as an adversary and maintaining easy and necessary professional and institutional relationships, he often opts for the path of least resistance, which undermines justice for some.
Lax adversarialism, a condition that lets cases and defendants pass through the system unchecked, often begins well before a case gets to court. Prosecutors have crushing workloads; they don’t want to waste their time on a matter than might not end in conviction. At times, legal teams develop a shorthand calculus for predicting which cases will end up in the “lost” column on their scorecards. You will never see this formula published in a book or as part of a public record, but it governs the prosecutor’s approach to a case in which a win before a jury seems unlikely. The assessment is not based on the actual facts but often on stereotypes or on the stature of the victim. Consequently, entire categories of crime, like domestic violence, might go unpursued for decades. (pgs. 5 & 6, emphasis mine)