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Amy Bach, a member of the New York bar, has written on law for The Nation, The American Lawyer, and New York magazine, among other publications. For her work in progress on Ordinary Injustice, Bach received a Soros Media Fellowship, a special J. Anthony Lukas citation, and a Radcliffe Fellowship. She lives in Rochester, New York, where she taught legal studies at the University of Rochester.
|"What's a Defense?"||p. 11|
|A Troy Champion||p. 77|
|Miss Wiggs's List||p. 130|
|Show Trial||p. 191|
|Table of Contents provided by Ingram. All Rights Reserved.|
"WHAT'S A DEFENSE?"
I didn't know I was going to jail," I heard a defendant say as she stood before the judge in Greene County, Georgia. Of course she didn't. No one had told her the consequences of pleading guilty. Most people, educated or not, often have no idea what a guilty plea actually means: the conviction of a crime that subjects them to incarceration, fines, probation, a criminal record with unforeseen future consequences. Many do not even know that a guilty plea is not mandatory or that an appeal after conviction at trial is possible, even though a judge is required to correctly advise defendants before any plea.
I had first come to Greene County in 2001 after hearing about the chaos in its court system which seemed representative of a statewide problem; and I continued to visit for weeks at a time over the next five years. As required by the U.S. Supreme Court precedent, the county was fulfilling the obligation to provide attorneys to those who couldn't afford them. With little state oversight, court-appointed lawyers, for a variety of reasons, were sacrificing the interests of their most vulnerable and malleable constituency—the defendants they were supposed to be protecting. In this process, the defense lawyer, the judge, and prosecutor formed a kind of a tag team—charge the accused, assign a lawyer, prosecute, plead, sentence—with slight regard for the distinctions and complexities of each case.
Robert E. Surrency was under contract with Greene County to represent poor people accused of crime. He was not employed by the county full-time; he continued to represent a number of paying clients as well. Even so, his private work was not lucrative enough, so he needed the indigent defense contract to support himself. On an annual basis, his caseload was double the national recommendation for a full-time attorney.
Surrency was raised in Media, Pennsylvania, where his father, Erwin C. Surrency, had worked as the law librarian and assistant dean for Temple Law School. "I grew up in the stacks," he said of his upbringing. Surrency's father, whom he admired greatly, had been born and married in Georgia. In turn, Surrency attended Mercer University in Macon, where he had kin. Afterward, he headed back to Temple for law, passed the Pennsylvania Bar, and landed a clerkship with a state court judge for whom he helped write opinions. He then hung out a shingle as a solo practitioner and established a civil-law practice. In the mid-1980s his father decided to return to Georgia to become the director of the library at the University of Georgia Law School. Surrency, in his thirties, chose to move as well. He opened a law practice on Main Street in Watkinsville, Georgia, conveniently located near several other towns, Madison and Greensboro, and near his father in Athens. But he found it hard to make a living. Surrency seemed to lack the relationships those who had grown up there enjoyed. An old-time attorney explained that Georgians born and bred "kind of rule around here" and that Surrency constantly had to prove himself. "He was a stranger," the attorney said. Surrency's practice foundered.
One afternoon in 1987, he drove the thirty-five-minute trip to Greene County's courthouse and ran into Chip Atkins, a longtime local lawyer. Atkins had been the public defender but no longer wanted the job. He said that the contract to represent poor people was up for "bid," and urged him to apply. Surrency won the contract by offering to handle all the routine cases for fifteen thousand dollars, plus seventy-five dollars an hour for serious cases like murder; his bid, which came in at about twenty thousand dollars total, was slightly lower than anyone else's, he explained. In his first year, he represented forty defendants while maintaining a private practice. "It was a good side job," Surrency said.
In the fourteen years that followed, his public caseload multiplied tenfold, while the amount of time he devoted to each case inevitably shrank. In 2001, the year I first met him, 1,359 people were arrested and held in the Greene County jail. Because the vast majority of criminal defendants nationwide are too poor to afford a lawyer, many of those arrested in Greene County would become his clients. During the same fourteen years, Surrency's pay rose only to $42,150.
Nonetheless, Surrency claimed to have achieved good results. He settled a large number of cases through plea-bargaining, which he called "a uniquely productive way to do business." It got his clients in and out of the system quickly, which, he maintained, was what they wanted; and it saved him from having to defend clients whose cases he did not have time to try. Holding onto his contract depended on, among other things, expediting the process. If he got stuck on one client, he couldn't push the rest through. The judges expected him to perform—one had a motto, "Slow justice is no justice"—and could complain to the county commissioners, who had a lot of influence with the committee that awarded Surrency's contract.
Outsiders and a few insiders, such as the head clerk and Surrency's former paralegal, saw him as the quintessential "meet ‘em, greet ‘em, and plead ‘em lawyer" who met his defendants minutes before they would face the judge and who, by then, had few options but to plead guilty. Even so, Surrency insisted he was helping people. He saw himself as a man of experience who was defending the poor. He helped extract the innocent from the system and shepherd the guilty through an imperfect and unjust world.
When I arrived at the Greene County courthouse just before nine in the morning to watch Surrency in action, he was trudging up the stairs to the courtroom. He had red tousled hair and wore a loose grey suit. The old courtroom, with its ceiling fans and creaky floors, was packed. Those who didn't have a seat overflowed into the hallways outside. Surrency looked distracted and then defeated as he saw the crowd that awaited him. Some, waving papers, laid into him with frustrated questions. Many had phoned him about their cases but had not heard back, or had spoken with him briefly and been told to meet with him before court. They were swarming around him like gnats. "Everybody back up. Back up," he said. "I'll try to get to talk to all of you before you go to the judge."
I had come on the first day of "trial week," the term of court when this rural court attempts to resolve cases that have built up over the previous quarter with jury trials. The label is a misnomer. In four years, Surrency had taken only fourteen cases to trial out of 1,493; he won five. The rest of the cases he managed during that period—more than 99 percent—he plea-bargained. In this particular session no cases went to trial. People either pleaded guilty or had their cases rescheduled, a drill that took only two days. There were 142 defendants on the court calendar and 89 were Surrency's. In a flash, it seemed, forty-eight of his clients rose from the rickety dark wooden benches, one after the other, to plead guilty. After the first day I spent in court observing him, he announced, "We have successfully done a ten-page calendar in one day!" For Surrency, speed meant success.
In court, he would yell out a client's name, like the hostess at a restaurant clearing the wait list. "Mr. Jones, are you here?" Then he would peruse the list of plea offers the prosecutor had given him and tell his defendant how much he or she would have to pay in fines or serve in jail time. If the defendant didn't want to plead, the matter was held over until the next trial week. Surrency theorized that the longer a case dragged on, the more likely it was that incriminating witnesses might forget what had happened. His job had devolved into this: Plead guilty or come back another day.
Can a defense lawyer plead virtually all his cases and still be doing a decent job? In assessing the quality of a lawyer's work, the number of cases he pleads out is less significant than the amount of attention he gives to each one. What is required of him is not necessarily research in law books, but investigation and client contact: initial interviews about what led to the arrest or the charge; discussions, for example, with the prosecutor's witnesses to assess their strength, or with the arresting police officer; perhaps a review of any forensic reports or psychiatric evaluations. What's needed is a range of basic inquiries involving phone calls or brief meetings that go toward deciding strategy for everything from bail setting to finding evidence.
Surrency had little time to talk in detail to his clients, and so he often had limited information to use in their favor. It was thus difficult for him to bargain with prosecutors to secure a more lenient sentence, nor could he produce the ultimate trump card: a willingness to go to trial when his clients claimed innocence. Many of them risked losing their homes, children, and livelihoods if they pleaded guilty, and yet his actions remained the same: His caseload often made it hard for him to clarify the facts—for example, whether his client had been the ringleader or had acted without intent or was guilty of a lesser crime—which is the kind of information that can mitigate the severity of a sentence or get charges dropped in negotiation.
Part of Surrency's problem was that his contract did not fund investigations or expert witnesses. For these, Surrency would have to ask the judge to provide funds or just lay out the money and then ask for reimbursement, which he didn't like to do. He didn't want to get people riled up about spending the county's money. Moreover, he claimed not to need these resources, anyway, because most of his cases were "pretty open and shut." Under the weight of too many clients to represent, he seemed to have lost the ability both to decide which cases required attention and to care one way or the other.
Defendants, of course, didn't like Surrency's way of doing things. The then-clerk of the court, Marie Boswell, had received many complaints, but none had been formally filed. Instead, those accused of crimes banded together as if they were on one team and their lawyer on another, at times passing around advice, and a few proclaiming that the best solution was to represent themselves. I spoke with one woman, in her mid-twenties, smoking with her friends outside court, who was there on charges of selling cocaine. She dug into her savings to hire her own lawyer. "He meets with me. He talks with me about the case," she said, as if this were exceptional.
H, another defendant, twenty-eight years old, a heavily built black man with a shaved head, was sitting in the back row of the courtroom, charged with aggravated assault and battery of his boyfriend. [He asked to be called by a single initial to maintain his privacy.] He said he had never been in trouble with the law before. The crime, which he did not dispute, involved hitting his lover with his car after he learned that the victim had knowingly exposed him to HIV and now H had tested positive. "I guess I panicked," H says. "A lot of emotions were going through me."
H's explanation constituted a defense. But Surrency never returned H's phone calls. "I bet if [his clients] all lined up in a lineup he couldn't pick a person out," H said.
Surrency, I found, was resolute in his defense of himself. He did not allow for the prospect of having ill-treated his clients. "Nobody was treated bad," he said. "Nobody could say that they didn't have their day in court." But in his mind, it hardly mattered since most defendants wanted to plead guilty from the outset, whether they had or had not committed the exact crime with which they were charged. And if he went to trial rather than taking the plea, he risked a judge giving the maximum sentence. Plus, pragmatically, he said, people wanted to move on. The employed wanted to avoid missing work (which could mean days if the case was postponed over and over), while the unemployed found coming to court burdensome. Many didn't have cars, and there was no public transportation in Greene County. "A car don't run by itself," said one woman I met, who had been charged with committing aggravated assault with a heavy meat grinder. She had paid a friend ten dollars for a ride.
More often than not, what a defendant really wants is what Harvard Law School professor Charles Fried calls "a special-purpose friend," an attorney who, perhaps with a hand on the client's shoulder, "acts in your interests, not his own; or rather he adopts your interests as his own," guiding a client through the process and defending him against injury.
This was not Surrency. Witness a conversation between him and a client, a woman in an orange prison jumpsuit.
"I know I'm pleading guilty," she said. "But I don't know why."
"Well, we talked about that," he said.
She shook her head. No, they hadn't.
"Don't you remember when we talked?" said Surrency, as he flipped through a file.
"We never talked," she said, calm and resigned, mocking her lawyer as if she knew she would get nothing from him and just wanted him to admit as much.
Rejecting this complaint, Surrency told me that he talked to all his clients at some point, but that the average defendant would usually protest that he or she didn't get enough time. Clients seemed bottomless in their need for attention. "You have to draw the line somewhere," he said.
It seemed that after seventeen years, he was exhausted—by the job and the system. As Surrency put it, the local governing agency that hired him, the Greene County Board of Commissioners, "didn't want these people"—indigent defendants—"to get an even break just to start with. ‘They are guilty anyway, what do they need a lawyer for?’—that is their attitude today. There is really a consensus among the local people paying their taxes that these people don't need any defense, much less a quality legal defense."
And so it went. Frequently, Surrency was not even in court when his defendants pled. He'd stand in the hallway talking to other clients. Another lawyer, Rick Weaver, who knew even less about the cases, would often take his place. Surrency regularly paid Weaver, a former prosecutor, six hundred dollars for one day of work, which allowed Surrency the freedom to communicate plea deals to his clients while Weaver stood before the judge. Surrency would talk to the prosecutor to receive the plea offer, then he would pass it on to the client, often on the day of court. The next step was sending the client, with his file, to see Weaver, who would accompany the accused as the plea occurred before the judge.
An attorney who is present in court and armed with specific information about a case stands a good chance of influencing the outcome for his client. Nevertheless, Surrency, in a letter that recapped his work load to the local government budget committee, wrote that there were times "when an attorney needs to be in two places at one time and Mr. Weaver has solved that problem." He maintained that "the trial judge and the District Attorney were very pleased with the addition of Mr. Weaver to the business of the day."
Weaver stood up awkwardly beside Terrical Lashay Porter, who was in court on drug charges. Porter, in her early twenties, came from a family in which two of her uncles, as well as her brother and her mother, had served time for drug crimes, including trafficking or selling. On a search warrant based on her brother's conduct, the police had found a bag of marijuana that Porter admitted was hers. "It was in my bedroom," she told me; a friend had given it to her after a party. She was charged with possessing more than an ounce of marijuana with intent to sell—a felony for which the law mandates a maximum often years in prison. Porter had never been arrested for a crime before.
After the charge, she had heard nothing about her case for two years until the day before her appearance in court, when a neighbor brought her a subpoena sent to an old address. Porter raced to court early, but Surrency had too many people around him to talk to her. When their turn came to meet, she learned that the prosecution was offering her five years of probation on "conditional discharge"—a special, one-time deal for people charged with drug possession as a first offense that resembles the "first offender" law in which a felony record is dismissed and discharged—with no conviction, if the "terms or conditions" of probation, such as paying a fine and seeing a probation officer once a month, are met. If, however, Porter got convicted of another crime—any crime—during the probation period, a judge could nail her with the maximum sentence for her original offense. Given that her family was clearly on the police radar, Porter might well get arrested, even for something as minor as driving without a license and she could conceivably end up getting sentenced to a full ten years. The risk seemed not worth it to Porter. She said she told Surrency she would rather accept the five years of probation, but without the conditional discharge, even if it meant a permanent record instead.
Soon after the meeting with him, Porter stood before the judge. She looked nervous. Her foot was twitching. She was sweating. Rick Weaver, a lawyer she had never met, stood at her side. Surrency wasn't there.
The prosecutor described Porter to the judge. "We believe she is much less involved in all of that than her mother and her brother and her uncles," he said, though he described her home briefly as "a place to buy drugs" and her mother as "the main one operating out of there." He then explained the offer of conditional discharge he was making to Porter. After, Judge Hulane George began a "colloquy" to explain to Porter her rights. She asked if Porter understood that she had the right to plead not guilty and demand a jury trial.
"Yes, ma'am," Porter said.
Did she understand that she was waiving her rights, including the presumption of innocence, the right to subpoena any witnesses, the right to a lawyer at trial?
Despite Porter having told Surrency that she didn't want to take the conditional discharge gamble, the judge informed her that she was pleading under the conditional-discharge provision. "Do you understand that under this particular provision of the law, in five years, you will have no felony record? Do you understand that?"
"Yes, ma'am," Porter said.
"But if you get into trouble I could come back and sentence you to what is left of your five years. Do you understand that?"
"All right, do you want to plead under conditional discharge?"
"Do you freely and voluntarily enter your plea of guilty to the charge against you?"
"You are represented here by Mr. Weaver, who is with you. Have you been talking to Mr. Surrency or Mr. Weaver?
She then asked Porter if she had any problems with Mr. Weaver and if there was anything else she wanted Surrency or Weaver to do.
"No, ma'am," Porter said.
"Anything you want to say to me before I rule?"
"All right. Mr. Weaver, is the sentence recommendation the State made the same one to which you and your client agreed?"
"It is, Your Honor."
"Have you had enough time to discuss this case with her?" Judge George asked Weaver.
"I would like about thirty seconds, if I could, just to make sure," Weaver said.
He and Porter conferred. And then he stepped forward: "I do not believe she is interested in the conditional discharge," Weaver said. "I don't think she fully understood."
Porter looked panicked. "I told Mr. Surrency that I didn't want to be under that," she said. "The first offender."
"But this isn't first offender," the judge said.
"But it operates exactly the same way, Your Honor," Weaver said.
The judge turned to the prosecutor. "It's my understanding, I could only sentence her to what's left on five years rather than the first offender up to ten," she said.
The prosecutor had to correct her. "I think you could sentence her up to the total amount she could have received."
The judge said, "Well, she said she doesn't want it."
Excerpted from Ordinary Injustice by Amy Bach.
Copyright 2009 by Amy Bach.
Published in 2009 by Metropolitan Books / Henry Holt and Company.
All rights reserved. This work is protected under copyright laws and reproduction is strictly prohibited. Permission to reproduce the material in any manner or medium must be secured from the Publisher.