Source: The NY Times
By ABBE SMITH
As we commemorate the 50th anniversary of Gideon v. Wainwright, the landmark Supreme Court decision that gave poor defendants the right to counsel, it would be nice to celebrate. That case, taken together with the 1967 decision In re Gault, which gave juveniles the same rights in court as adults, stands for the principle that process matters in our system of justice; when faced with the awesome power of the state, the accused — rich or poor, old or young — must be properly armed.
Two recent books put a damper on the celebration, revealing just how random and impoverished justice can be, and how flimsy the right to counsel. In “Kids for Cash,” the investigative reporter William Ecenbarger tells the story behind a corruption scandal so brazen and cruel it defies imagination. Between 2003 and 2008, two Pennsylvania judges accepted millions of dollars in kickbacks from a private juvenile detention facility in exchange for sending children — girls and boys, some as young as 11 — to jail.
It is a harrowing tale, lucidly told by a journalist with a good eye for detail. The children’s stories continue to unsettle long after the book ends: the 13-year-old incarcerated forthrowing a piece of steak at his mother’s boyfriend; the 15-year-old for throwing a sandal at her mother; the 11-year-old for calling the police after his mother locked him out of the house; the 14-year-old for writing a satirical Myspace profile. Another 14-year-old, an A student, was sentenced for writing “Vote for Michael Jackson” on a few stop signs; she had a seizure while in detention, banging her head so hard she cracked her dental braces.
Mark Ciavarella is the judge who sent away all those children — and several thousand others — in cahoots with Judge Michael Conahan. Ecenbarger calls what took place “a routine and systematic form of child abuse.” After the briefest of hearings — the average length was four minutes — kids were dispatched to detention centers in which the judges had a financial interest. If parents were unable to pay the costs of detention, their children were sometimes held longer. One teenager’s Social Security survivor’s check, from his father’s death, was garnished to pay the costs.
What happened in Luzerne County, formerly known for coal and now for organized crime and public corruption (in certain districts, teachers have to pay for teaching jobs), was not a case of rogue judges acting alone. In a “festival of injustice,” prosecutors, public defenders, teachers and court employees saw it all and did nothing. At Ciavarella’s direction, juvenile probation officers talked kids out of exercising their right to counsel.
There are some heroes: local reporters who broke the story; a whistle-blowing family court judge; Juvenile Law Center attorneys who represented two of the detained children and petitioned the Pennsylvania Supreme Court to stop the widespread waiver of counsel; parents who did everything they could to fight for their kids. There is some vindication: Ciavarella and Conahan are serving lengthy prison terms, and the children’s records have been expunged. But there is no happy ending. Many children were traumatized by being shackled and summarily shipped off to jail only to be shunned by friends when they were released. Seven years after his incarceration, the young man accused of steak-throwing (he denied the charge) still has “a lost look about him,” Ecenbarger writes, “as though he has been permanently startled.”
In “The Injustice System,” the lawyer and writer Clive Stafford Smith (author of the excellent “Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay”) makes a strong case that Krishna Maharaj, a British man sentenced to death for a double murder in Miami 26 years ago, is innocent. Smith (no relation) took up the case after Maharaj had been on death row for seven years and succeeded in getting the death sentence thrown out. Ironically, this may have hurt his client’s fight: prisoners who merely die in prison don’t receive the attention or resources of those on death row.
Maharaj is now 74 and in a wheelchair. He recently filed a post-conviction challenge based on newly discovered evidence, which the State of Florida is contesting. Previous appeals have been rejected. If Maharaj is turned away from the courts once more, his hope will lie with the governor of Florida.
The book is a complicated whodunit, with the likely perpetrators still at large or dead. The murder victims, a father and son who were apparently involved in nefarious, lucrative activities, some connected to Colombian drug cartels, knew plenty of people who might have wanted to kill them. Maharaj’s supposed motive — resentment over the breakup of a business partnership and wounded vanity over an unflattering newspaper portrayal — is convoluted by comparison. In the course of recounting the crime, trial and appeals, Smith paints a bleak picture of criminal justice in America — this is Miami, after all, not some backwater town. There are dishonest cops, smug prosecutors, a feckless defense lawyer (now a judge) and venal witnesses.
Although Maharaj was once wealthy and well traveled — he was an importer of exotic fruit — he had no idea what he was in for when he was arrested. He spent little on a lawyer because he believed a jury would easily see he wasn’t guilty. Maharaj remains bewildered by a system that seems to care more about finality than anything else. One judge forbade his lawyer to even mention the word “innocent.”
Notwithstanding the book’s unfortunate title, which suggests a polemic, “The Injustice System” is really a love story — a moving tale of devotion by an extraordinary lawyer who nearly bankrupts himself and his fledgling public-interest law office to fight for his client’s life and liberty. Smith is at his best when he shares small stories — his first visit with Maharaj; his talks with Maharaj’s wife, Marita, who has stood by her husband all these years; his visit with Maharaj when he was shackled to a hospital bed after surgery for a flesh-eating disease contracted in prison — and his own feelings of despair. Sometimes the book gets lost in detail and reads too much like a brief. It is not always easy to be both a storyteller and an advocate.
“Kids for Cash” and “The Injustice System” reveal the deep gap between cherished ideals and harsh reality in a country addicted to incarceration. A majority of the children in Luzerne County who did time had no legal counsel. Krishna Maharaj no longer has a right to counsel; he has a great lawyer by sheer luck. But, a half-century after Gideon, justice in this country is not supposed to depend on something as capricious as luck.
Abbe Smith, a law professor at Georgetown University, is the author of “Case of a Lifetime: A Criminal Defense Lawyer’s Story.” Her next book, “How Can You Represent Those People?,” will be published this summer.
A version of this review appears in print on March 31, 2013, on page BR21 of the Sunday Book Review with the headline: Undue Process.
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