Chapter 12 concludes the book on both a hopeful and cautionary note. In the face of these problems, reformers may be paralyzed by pessimism, or forget the past and be doomed to repeat it. Efforts to expand Gideon’s dream have repeatedly failed. But Chapter 12’s conclusion argues that these failures can pave a new road to success. Advances in law, medicine, and technology point toward a very different model, one that is simpler, cheaper, more flexible, and less regulated. The current crisis poses a danger, but also an opportunity to loosen lawyers’ monopoly and increase overall access to justice.
Technology also requires a note of caution, however: Technological advances have also made our legal system’s burgeoning complexity possible. Courts, regulators, and legislatures have seemingly endless resources to add layers of additional complexity to our already overweening substantive law. This chapter recognizes that procedural complexity is easier to achieve and more popular, so our book focuses on those solutions.
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The Reality of Criminal Justice for Poor Defendants
Because of his defense lawyer’s incompetence and sloth, Jimmy Ray Bromgard served fourteen years in prison for a child rape that he could not have committed. At about 4 a.m. on March 20, 1987, an intruder broke into a home in Billings, Montana, and raped an eight-year-old girl. The intruder stole a purse and a jacket and fled back out the window. The police arrived, and after questioning the eight-year-old, drew a composite sketch of the perpetrator. One of the officers thought the sketch looked like Bromgard. The police brought Bromgard in and the eight-year-old victim picked him out of a lineup, but she was not sure it was him. She placed her certainty at “60%, 65% sure.” Again at trial, she reiterated that she was “not too sure” about her identification. Bromgard claimed he was innocent and that he had been asleep at home when the crime occurred.
At trial, the state also presented forensic evidence against Bromgard. The semen found on the victim’s underpants could not be typed using then-existing technology, but the state’s expert claimed that hairs found on the victim’s bed sheets could be. He testified that there was less than a 1-in-10,000 chance that the hairs were not Bromgard’s. Unfortunately for Bromgard, this testimony was demonstrably wrong. There has never been a statistically reliable process for comparing hair samples. At best, the numbers were educated guesses; at worst, sheer fabrication. A later peer-review committee of forensic scientists termed the statistical evidence junk science and urged the Montana Attorney General to audit the expert’s other cases.
There was thus much ammunition for a defense lawyer. Unfortunately, Bromgard was appointed John Adams, a local defense lawyer who worked on contract for Yellowstone County, Montana. Nicknamed “Jailhouse John Adams,” he was paid an annual retainer to take appointed cases, regardless of how many he took or how many hours he worked. Unsurprisingly, Adams was not particularly diligent. He had already been found ineffective by a federal court in other cases and was known to miss court appointments while playing cards in a local bar.
Consistent with his reputation, Adams did almost nothing for Bromgard. He met with him once before trial. He hired no investigators or forensic experts. This meant that the prosecution’s expert testimony identifying Bromgard as the rapist to a 1-in-10,000 certainty went virtually unchallenged. Adams did no investigation himself. He filed no pretrial motions challenging the witness identification or the expert’s testimony. He did not prepare Bromgard to testify at trial. He did not present an opening argument. He even failed to file an appeal after Bromgard was found guilty and sentenced to 40 years in prison. And yet the Montana courts repeatedly found Bromgard’s representation effective.
In 2002, Bromgard was exonerated by DNA evidence after serving fourteen years in prison for a crime he did not commit. The semen on the girl’s underwear could not possibly have been Bromgard’s.
Sadly and amazingly, Jimmy Ray Bromgard’s story is not unique. Even in the most serious of cases, where a defendant faces the death penalty, court-appointed defense counsel can be jaw-droppingly awful. Justice Ruth Bader Ginsburg put it nicely: “I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execution [stay] petitions, in which the defendant was well represented at trial. . . . People who are well represented at trial do not get the death penalty.” Appellate courts have found that defense lawyers who were drunk or asleep or ignorant of the law or disbarred or mentally ill were adequate to satisfy the Constitution’s guarantee of effective counsel.1
This is not a problem limited to the relatively small group of criminal defendants who face the death penalty. To the contrary, the sorry state of criminal defense has a broad effect at all levels of American society. This is partially because criminal law has metastasized to the point where, as federal judge Alex Kozinski has put it, “You’re probably a federal criminal” already.2 It is also partially because few citizens worry too much about the state of criminal defense until they are the ones who need defending.
Take, for example, a case much more common and less weighty than a child-rape or capital-murder trial, and one much more likely to affect the middle class: a charge of driving under the influence (DUI). Before you discount a DUI charge as relatively insignificant, consider that in most states a DUI charge carries a mandatory fine, jail time, public service, and the loss of driving privileges for a year. In some states, it could also result in the seizure of your car. And also remember that, depending on your body weight and blood alcohol level, as few as two beers could put you over the legal limit.
Imagine that you are a pharmaceutical sales representative. On a Friday night, you take a group of doctors and nurses out for drinks and a brief sales presentation. On your way home, a police car pulls you over. The officer asks if you know why she pulled you over. You do not. She mentions that you failed to use your turn signal when you changed lanes. You are pretty sure you did use your turn signal and start to argue. The officer interrupts and asks if you have been drinking. You mention that you have been out for drinks, but did not have more than a glass or two of wine. The officer asks you to step out of the car and then asks you to perform the three standardized field sobriety tests: the walk-and-turn test, the one-legged stand test, and the horizontal-gaze nystagmus. Five years ago, you hurt your right knee running, and you try to tell the officer that you may not be able to perform the tests. The officer asks you not to interrupt and to listen to the instructions. At the end of the tests, the officer announces that you failed and asks you to take a Breathalyzer, which comes in above the legal limit. She then books you for DUI and carts you to the hospital for a blood test.
Because you were arrested on a Friday evening, you may have to spend the weekend in jail, awaiting a bail hearing on Monday morning. If convicted, you will not only risk imprisonment but will also lose your driver’s license for one year. For a pharmaceutical sales rep, that is career suicide.
Fortunately for you, there are several potential defenses: If the officer lacked reasonable suspicion to pull you over (if you did in fact use your turn signal, for example), you can have the charge thrown out. Many squad cars have video recordings, but copies are available only if properly requested. If the officer administered the field sobriety tests incorrectly, or if your knee made performance impossible, you may also have a chance. You could also argue that the Breathalyzer was inaccurate (a surprisingly common occurrence).3 Even the results of a hospital