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Wednesday, December 2, 2009

How America Holds Court: The Seedy Dealings Underpinning Our Legal System

Rights and Liberties

It's getting harder and harder to exercise your legal rights if you aren't well to do. Where's the justice in that?

The following is an excerpt from Amy Bach's new book, Ordinary Injustice: How America Holds Court (2009).

Henry R. Bauer is one of the most popular men in Troy, New York. In the spring of 2005, he won a landslide election for city council president. To walk the streets with Bauer was to accompany a celebrity. People leaned out of their car windows to shout his name. On the day we met, a female cop apologized for not contributing to his election campaign and pressed a check into his hand. A courthouse secretary begged him to use her copy machine, an offer that is technically prohibited. "Just don't tell anyone," she said. An old man selling candy at a kiosk wanted to know if Hank (who's on a first-name basis with everyone, it seemed) was going to his favorite bar after work. Like everyone else, he wanted to hang out with Hank Bauer. And yet just three years before, Bauer had ended a career as a city court judge that was pegged as one of the most disastrous in Troy's judicial history. After working on the bench for eleven years, he'd been removed from office by the New York State Commission on Judicial Conduct, a punishment from which most judges do not recover. Unless you're Hank Bauer.

By nearly all accounts, Bauer is a congenial and decent man, full of smiles and laughs, with time and tolerance for everybody. As a judge, his reputation was stellar. Independent court watchdogs, local prosecutors and councilmen, defense attorneys and even a few defendants who had appeared in Bauer's court all attested to the judge's fairness and decency. In fact, most people in the city were stunned when the commission alleged frequent violations of the law during a two-year period. These included:

• Failure to inform defendants of their right to a lawyer -- nineteen

• Twenty-six situations in which he set excessive bail or failed to regard the statutory factors that must be considered

• Ten instances of coerced guilty pleas

• Four excessive sentences that were illegal

• Two convictions of a defendant without a plea or a trial

The allegations were serious and Bauer's failure to uphold the law egregious, so the obvious question here became: What was happening in Troy that so many were willing to turn a blind eye to such gross injustice? Why was the judge so beloved? As it turned out, the people of Troy thought Bauer's brand of practical justice better served the community than a strict and tedious upholding of the law. The lawyers didn't mind because the judge did most of their work for them, and the community didn't mind because when injustice in the lower courts is ostensibly aimed at keeping the streets safe and the system moving, the only people who suffer are the poor and neglected -- in short, the lower class.

Certainly in Judge Bauer's court, legal professionals set the stage for the judge to take over. At times, many of the attorneys seemed semiconscious while matters conveniently moved forward without the vehemence or irritating interruptions that can make a day in court really hard. Things ran smoothly. Court ended early. People went home or moved on to more pressing work. Most notably, in Bauer's court, the right to counsel had become discretionary, even though this right is probably the most important one the Constitution accords a defendant; without counsel, it is nearly impossible to assert all the other rights granted under the due process clause. LaShawna Bobo, a nurse's assistant, swears she did not have a lawyer at her court proceeding, even though the transcript of it says that she did. "I don't remember talking to him at all," she said. Bobo's charge stemmed from a stroll she took one early spring day. On a street down by the river, she saw two people she knew, Smash and Shaka, sitting on a brownstone stoop. The two had missed an appointment at the hair salon where Bobo worked on weekends. After a short negotiation, she began braiding their hair.

Suddenly a police car stopped. Apparently, a sign against trespassing was posted in the brownstone's window. Similar signs were posted all over downtown Troy, and property owners had requested that the police arrest anyone who wasn't on a preapproved list of residents or visitors. But Bobo figured they could sit on the stoop because Shaka had a relative who lived in the building. The police handcuffed Bobo and took her to the police station. No record exists of the arraignment but Bauer set her bail at twenty thousand dollars and charged her with trespass. Bobo immediately called her father, who couldn't understand why her bail was so high. "You must have done something else," she remembered him saying. A lawyer for Bobo might have filed a speedy-trial motion that demanded trial within five days. If the prosecutor wasn't ready by then, she would have had to be released on the sixth day. Instead, she stayed in jail for eight days. She missed work at the hospital. Her mother moved in with her four children, and her coworkers dropped by the jail to bring socks and underwear.

When she returned to court, Bauer asked whether she lived at the residence, to which she replied, "No." He advised her that if she wanted to plead guilty she would have a fine imposed, be sentenced for the eight days she had already served in jail (more than enough punishment for what she had done), and be released. Then she pleaded guilty to a trespass violation. Judge Bauer gave her a ninety-five dollar fine and released her. By pleading guilty she had agreed to pay the amount, but in her heart she knew she would never give the court any money. "Screw them," she said to herself as she walked out the door. That night when she got home, she threw a party. Shaka and Smash came, also having pleaded guilty to trespass. Bobo thought the entire incident an unfortunate, demeaning mistake, which it would have been had the conviction not taken her from her hometown and family. Several months after the incident, when she interviewed with the Troy Housing Authority, the city rejected her as a housing candidate. At that point, Bobo had a fifth child on the way. She couldn't afford a non-subsidized home. Daniel P. Ryan, a senior housing officer who managed the lease enforcement department, said the agency runs a criminal background check on every applicant and errs on the side of refusal because applicants can always appeal the decision at a hearing. "It depends on the circumstances of the crime," he said, adding that even small crimes can be enough to reject an applicant at first. But Bobo packed up her children and moved to Virginia, which was far away from her family, but less expensive to live. A year later, when she discovered that she could receive city housing in Albany, near Troy, she moved back, but only after shelling out the fine she swore she never would pay.

The commission investigating Bauer found in Bobo's case an instance of "excessive bail." In response, he argued that Bobo had been trespassing on what he "believed to be" a crack house or a building about which he had "some recollection of prior drug activity." "It wasn't somebody wandering through somebody's backyard in search of their dog or cat," he said. As for having a lawyer, Bauer insisted Bobo had a public defender on the day she pleaded guilty. One had indeed been in court that day. "[I]t was a Tuesday, that's an Art Glass public defender day," he said, referring to the lawyer on call. Glass was in fact listed on the transcript, though he found the eight days Bobo had spent in jail "inexplicable." He didn't believe that he would have represented her so poorly. At the same time, he seemed unwilling to blame the judge. Along with nearly everyone else, he liked Bauer. The commission had subpoenaed Glass to testify against Bauer, but, he said, "I tried to minimize it as much as I could. I certainly was uncomfortable. ...We are still really friendly." Like Glass, so many lawyers seemed to feel an allegiance to Bauer. They had seen each other frequently and managed to make the job of deciding men's and women's fates somewhat agreeable. A reservoir of good will had developed.

Glass and I were sitting in a Troy restaurant one night after he had returned from night court. He looked tired, his large eyeglasses sliding down his nose. In addition to city court on Tuesdays, he worked in two other courts. He seemed to be constantly running around. He had been working for the public defender for more than thirty years and his caseload, he said, had increased threefold. "When I go to court Tuesday there are one hundred and fifty cases on the calendar and I represent 75 percent of them. There is something fundamentally wrong with that." Like so many public defenders, Glass was swamped and simply did not have the time or wherewithal to confront what was happening in Judge Bauer's court.

What's more, Glass's boss, public defender Jerry Frost, worked part time as chief, maintaining a private practice as well, which gave him a disincentive to spend time on public defender cases. Also, Frost was a trial lawyer at heart, not an administrator who wanted to develop the office. He wasn't like Terry Everett, who had created a "model" public defender's office in Houston County, Georgia, by keeping a tight watch on the adversarial balance in court. Solving systemic problems just wasn't on his To Do list. "We are not a court monitoring system," he said. "We represent individual defendants." However, the numbers made it impossible to represent individual defendants, so not everyone got equal treatment. Frost took a special interest in the high-profile cases. For them, he was prepared to gear up his office and make considerable personal sacrifices at the expense of other defendants, the city court regulars.

He had, for example, put aside his private practice for months to appeal Christine Wilhelm's case, a diagnosed paranoid schizophrenic convicted of the murder of one son and attempted murder of the other. During her four-month trial, he "didn't put three days into [his] practice," he said. He was doing her appeal for free, though his contract with the public defender's office didn't oblige him to do so. To Frost's credit, Christine Wilhelm was eventually placed in a secure psychiatric center. Frost seemed to have come to a sort of truce with the prosecution with regard to the less "important" cases. As Robert Axelrod writes in The Evolution of Cooperation, precedent for this kind of deal making can be found in the way troops in World War I conducted themselves. Soldiers on opposing sides sometimes implicitly agreed to fight only at certain times, adopting a "live-and-let-live system." The troops would attack each other when ordered, to maintain the appearance of being at war. "Such practices of tacit cooperation were quite illegal--but they were also endemic." It behooved both parties to limit conflict in order to survive. Frost's public defender's office bore evidence of Axelrod's theory at work. It was littered with volumes of transcripts and manila folders from the Wilhelm case, and little else. Frost would work hard at cases that pushed the bounds of the law or drew public attention; but for the load of ordinary cases, the attorneys seemed to have decided that almost nothing could or should be done. They all had private practices to attend to, and so this "détente" gave them the chance to return to their paying clients, whose cases mattered more to them. As a result, it was easy for Bauer to pass people through.

Frost was, however, an admired attorney. Surely he could see the procedural problems at work in Bauer's court? And yet he defended him. "I think that the Judge Bauer case was a gross injustice," he said. "I think they nitpicked him."

I assumed that Frost must not have known what Judge Bauer had actually done, so I pressed him further. His response? "If you're relying upon the findings of the commission, I think you're off the beam." Steve Downs could not understand Frost's response, either. "I have never been able to figure [him] out," said Downs. "He has a good reputation ...But he has the same blind spot as Bauer." And as everyone else.

Again and again, lawyers and court officials claimed that Bauer had gotten "a raw deal." Ken Bruno, who was district attorney during Bauer's tenure, had watched him in court several times and never saw anything wrong. "I thought he bent over backwards to be fair to defendants, protecting their rights." In fact, he added, "the only complaint to the DA's office was that he would allow defendants too much lenience." Before a preliminary hearing "he would allow access to our whole file--all the victims' statements, stuff [the defense] normally wouldn't have access to at the beginning of a case." Everyone was surprised when the charges came out. Most thought he'd been faulted for technicalities. "I didn't think that his sentences were by any means harsh," said local attorney Alexander Perry. "He gave all kinds of people breaks," he said, recalling instances where Bauer arranged for treatment for defendants with drug problems, or when he spared Perry's client jail time because he was a single parent and Bauer didn't want the children put in foster care; and even once acknowledged that the police were harassing a client. "There were so many of these that it's hard to pick one." If anything, he and his fellow prosecutors had been convinced that Bauer was too lenient. "He actually pressed the DAs to make reasonable deals." Defense lawyers echoed this endorsement, saying that in spite of what the commission found, Bauer was very much a defendant's judge. "He was fair, consistent, and pretty reasonable," said assistant public defender John Turi.

"It is so funny," said Brian Donohue, a defense attorney who appeared before Bauer hundreds of times. "You take these fifty incidents or whatever you want to call them. That would make you think he was the embodiment of everything you don't like about a judge. The ... thing is that he is unlike that." Donohue remembered the judge's generosity to a toothless prostitute who kept getting arrested. Donohue would argue repeatedly that she was trying to get better. "Most judges wouldn't even have listened. They wouldn't have had any sympathy at all. She was more or less a harmless person, a poor soul, and that is the way the judge treated her. He would release her on her own recognizance. He felt sorry for her." Bauer hadn't acted consistently badly. "He did not suffer from what they refer to as black-robe disease," said Donohue, adding that many worse judges existed--the type who "yell at a lawyer for being five minutes late," he said. How to square Donohue's account with what the transcripts proved, that Bauer routinely stripped people of what should have been inalienable rights? One theory holds that when attorneys like Donohue cared about a client--even a toothless prostitute--Bauer was fair, helpful even; but when they were disinterested, Bauer could do as he wished and lawyers either looked the other way or literally didn't observe what went wrong.

One defendant, Adam Russell, in his early twenties, today a program analyst for the Department of Labor in Albany, was home on break from college in August 2000 when he got caught up in a fight at a convenience store. His head was wounded, and he was arrested for loitering after the police had told him to leave the area. In an interview Russell said that he had no idea what his crime was, except that he had been present during a sweep. In court, Bauer didn't read him his rights or ask whether he needed an attorney; then he threw him in jail with a ten thousand dollar bail even though Russell had significant family ties to the community and no arrest record. Russell looked every bit the prep school graduate, with his sandy hair and checkered shirt messily tucked into his khakis. He teared up when talking about the four hours he had spent in jail. "You don't know what's going to happen to you," he said. A friend paid his bail almost immediately and his father hired a private attorney to represent him. The case was dismissed a week later.

Compare this treatment to that of John Casey, a rail thin man who can be found sitting on park benches drinking fifty-cent beers. Casey often described himself as homeless even though he lived with his father, who owned a flooring business. He had a thick file of small crimes and in April 2000 was arrested for trespass, loitering, and an open-container violation, among other charges. Bauer didn't assign him a lawyer and set bail at twenty-five thousand dollars, he said, because of Casey's criminal history. But seven days later, without Casey even in the room, Bauer called the case and pleaded him guilty, declaring, "The matter of People against John Casey was a plea and time served." Casey was discharged from jail without ever having to come to court. In other words, the judge had simply pleaded Casey guilty for him. Two months later, Casey was arrested for an open-container violation while drinking a beer on a sidewalk and Bauer did it again. This time Bauer set bail for five hundred dollars, which was strange given the high bail he'd set last time, and sent Casey to jail without an attorney. Casey, if he had the money, could have simply given fifty dollars to a bondsman, but he remained in jail for twelve days. On the day he was supposed to have a hearing, Bauer again pleaded him guilty without his knowledge, reading into the record, "The matter of the People against John Casey" was "a plea and time served," and he ordered Casey's release. This time, Casey wandered back into court. "What happened to my case?" he asked.

"Your case was resolved," Bauer said.

For the commission, Judge Bauer had an explanation for every instance of misconduct it cited. The first time Casey was arrested, city court was under construction, which made transporting prisoners cumbersome. When he and Phil Landry, the assistant public defender on duty, "closed out" other pending cases, they mistakenly did this one as well. (Landry claimed that didn't make sense because he didn't remember doing the paperwork to plead someone guilty without his presence.) In the second instance, Judge Bauer admitted a mistake. He "erroneously" thought that Casey had counsel. "It wasn't because I was trying to screw him," Bauer said.

Casey himself wasn't that offended that his rights had been abrogated. "I knew they had to release me sooner or later," he said. Yet he was the type of person who needed a lawyer most. With no one to speak up for him, he would have submitted to almost anything. There was nothing standing between him and the power of the majority. Again it was striking that Bauer's behavior went unnoticed. Most likely, incidents like Casey's happened so fast that an outsider sitting in court would not be able to tell what was happening. It was probably easier to notice how well Bauer acted when he actually did what he was supposed to do, because this slows the process down. Tellingly, a court-monitoring group, the Fund for Modern Courts, a nonprofit organization based out of New York City, randomly monitored his courtroom in 1998, years before the charges were brought. Citizen monitors were there over thirty-two different days, sixty-four times, and had only one criticism: sometimes it was difficult to hear him in a crowded courtroom. Judge Bauer "explains clearly and fully all matters and options" to defendants and "goes out of his way to ensure defendants understand their rights and receive adequate defense." Furthermore, his manner pleased the citizen watch group. "He was roundly lauded for his 'courtesy' and 'compassion,' " the report read. "Politeness" and "respect" for defendants characterized Judge Bauer's demeanor. Monitors reported that the judge greeted "every defendant with 'good morning' or 'good afternoon' " and addressed them as Mr. or Miss. "To each defendant who is placed in a program, [the judge] wishes 'good luck.' "

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