'Broken Scales': Reflections on Injustice' by Joel Cohen, a Review by Judge Frank A. Shepherd

This book should be required reading for every new prosecutor. It should be read by anyone who cares about the administration of justice in our society. It is a compelling tome. Ironically, this review was begun just as the western world was awaiting the decision of whether former Heisman Trophy winner and celebrity O.J. Simpson would be released on parole from a Nevada state prison where he has served eight years for armed robbery, kidnapping and assault. Many would argue that his freedom is an injustice.

But there are many that are much worse. This book chronicles what the authors probably consider their top 10. Some are obvious. One or two are debatable, depending on your point of view. Together they are thought-provoking for anyone willing to think.

The book begins with the obvious: the awesome power of the state and the explosive combination of an experienced, overzealous prosecutor, inept defense counsel, a run of state trial and appellate courts whose bar was so low they could not recognize it, and an innocent defendant sentenced to death for a crime the state confesses 30 years later he did not commit.  The story of the meeting of the prosecutor and the defendant after his release is poignant. The defendant had just learned of his second, and final, death sentence, lung cancer, to which he succumbed a little more than a year after his release from state prison. Understandably, he could not bring himself to accept the prosecutor's apology. The prosecutor, still alive, suffers daily personal torment for a wrong that might have been avoided if he had taken more seriously the simple admonition of the U.S. Supreme Court that the interest of the state in a criminal prosecution “is not that it shall win the case, but that justice shall be done …” The narrative also begs of the thoughtful reader to consider whether human beings are capable of establishing a system of capital punishment that is truly fair and truly impartial.

Lest the reader be beguiled into insouciance by the rarity of these events, Cohen and his co-author quickly dash off several more examples: the defendant who spent 14 more years in state prison than he should have for stealing a calculator simply because every cog in the wheel—the prosecutor, defense counsel and trial judge—was asleep at the switch and failed to notice the obvious fact that his sentence was not subject to enhancement under that state's three strikes law; the defendant who spent 21 years in prison, framed by a financially wanting couple motivated by a $20,000 reward and the testimony of a third party witness who swore that the defendant confessed to her when even she admitted she was hopelessly drunk at the time of the exchange; or, finally, the slightly more complex story of an Egyptian Muslim, present in the United States on a student visa and unlucky occupant of a hotel room across the street from the World Trade Center on the day the Twin Towers fell, who falsely confessed to ownership of a radio transceiver capable of communicating with an aircraft in order to save his family members from a “living hell” threatened by his FBI interrogators unless he confessed. Fortunately, after 34 days of incarceration as a “material witness” in the conflagration, the FBI's strong arm tactics were laid bare by the serendipitous return of an airline pilot looking for the transceiver. It turned out that the transceiver had been planted in the Muslim student's hotel room in the days after the tragedy by a hotel employee who felt it was his “patriotic duty to do so.”

These are the easy cases. Some are much less clear. Another narrative of injustice offered up by the authors is the story of Miriam Moskowitz. Arising much like the last one, in the context of fear of foreign infiltration and subversion, Miriam Moskowitz is today 100 years young and probably the last living Communist from the pre- and post-World War II era when Communism was on the march, and the Soviet Union sought to infiltrate the U.S. government. The danger in the time is generally acknowledged today, including the passing of secret information relating to the creation of the atom bomb to the Soviets for which Julius and Ethel Rosenberg were famously executed.  Moskowitz was part of the movement, albeit a lesser participant. She was found guilty in 1950 of lying to the FBI and served two years in federal prison. Vigorous and spry to this day, Moskowitz maintains her innocence and defends her fellow travelers as idealists seeking a better society. A federal judge has recently declined to clear her name in an extraordinary legal proceeding and President Barack Obama declined to approve her petition for a pardon. The thoughtful reader will be challenged to consider whether Moskowitz, now at the ripe old age of 100 years old, was guilty not only of a crime but also a now decades long naiveté.

The final selection chapter of this worthwhile tome, recounts the ousting by the citizens of Iowa in 2010 of three justices of the Iowa Supreme Court following their joinder in a unanimous decision by the court holding that the state's prohibition on gay marriage was a violation of the state's equal protection clause. The authors and one of three former Supreme Court justices interviewed for this final “injustice” place the blame on out-of-state, rabble-rousers and religious intolerants bent on upending “the independence of the judiciary” of the state of Iowa. But with judicial independence comes judicial responsibility.

Five years later, the chief justice and three associate justices of the U.S. Supreme Court cogently articulated what may have actually been at the root of the frustrations of these unwashed when the chief justice wrote “the majority today neglects the restrained conception of the judicial role.” The response of one of the defeated: “Justices on the U.S. Supreme Court appear to be more committed to a predetermined view of the law than were the justices on our court. Yes, there are Justices on the U.S. Supreme Court whom, I think, no one in the world expected them vote any way other than the way the voted.” So much for the call for tolerance and respect for resolution by debate of society's most controversial issues.

No one argues that our system of justice is not at times infected by arrogance, laziness, self-dealing or just plain human failings. In true lawyerly fashion, the authors' support each of their offerings by attaching a verbatim transcript of the interview with the victim or central character of the story. The facts recited are unimpeachable. The inferences suggested by the authors are occasionally open to further discussion. I suspect they know it, which is one of the reasons this book is a worthy read for anyone interested in the health and welfare of our criminal justice system.

Retired Judge Frank A. Shepherd is a GrayRobinson shareholder in Miami. He served on the Third District Court of Appeal from 2003 until this year.