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

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.