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Access to Justice: New Book Will Spark Deep Debate about the Meaning, Causes of Injustice

Thursday, August 17, 2017

This article originally appeared on The Lawyer’s Daily on August 16, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Will we recognize injustice when we see it? And what is injustice anyway? I suspect that these questions are never far from the thoughts of many of us working in the justice system. We hope that we will not be the police officer who pushes too hard to get a suspect’s statement or the prosecutor who wants to “win” too much, or the defence lawyer who misses a path to acquittal or the judge who fails to intervene when justice requires it.

We all recognize the clear cases of injustice — at least after the fact — but what about the ones that are not so clear, such as where the end result seems to be satisfactory, but the way it was arrived at causes us concern.

In his new book: Broken Scales: Reflections on Injustice (American Bar Association, 2017) Joel Cohen, with the assistance of Dale Degenshein, leads us on a course of reflection about these questions in a collection of interviews that present us with the consequences of clear injustices or challenge us to think more deeply about what injustice is.

In 10 chapters, we meet the overzealous prosecutor; the pro bono lawyer who fought the state’s crusade to establish a precedent at the cost of keeping an innocent man in jail; the suspected terrorist who falsely confessed to save his family; the wrongfully convicted person eventually exonerated; the victim of the “red scare” who has never been exonerated; the wrongfully accused police officer; the lone juror refusing to vote for conviction; the CIA operative convicted of violating the Espionage Act; the judge who was wrongly ordered not to sit on certain cases because she had accepted an invitation to a round table of Iranian-American community leaders at the White House; and, finally, a judge not retained in an election because of intense lobbying by anti- gay marriage activists. We are confronted with situations in which fair process and good intentions nonetheless resulted in wrongful convictions. And cases in which the desire to avoid racism and the appearance of bias perpetrated its own type of injustice. And cases in which we are left wondering whether there was any injustice at all. We hear their stories and their own reflections on injustice in their own voices, gently but adeptly guided by Cohen’s skilful interviewing.

For me, the most successful — and the most moving — part of the book is the interview with Kenneth Ireland, a man wrongly convicted of raping and brutally murdering a mother of four children when he was 17 years old. He was exonerated after spending 21 years in jail. His description of the realities of prison life is heart-rending, especially for those of us whose duty has sometimes required us to put people in jail. Reading his description of his anger, of how he survived in prison and how he has tried to rebuild his life reminds all of us in the justice system of the power we wield and the danger that we will make mistakes.

The authors do not provide answers to the big questions about whether we will recognize injustice and what injustice is. Rather, they hope that the interviews and the questions they raise will “add spark to a continuing and important conversation about injustice in America.”

The same ongoing discussion is needed in Canada, too. We have had more than our share of wrongful convictions. We hope that we have learned from them, but the risk is ever present and we need to be reminded that it is. And we have had our own debates about what constitutes injustice. Is it just or unjust when a suspect is acquitted because illegally obtained evidence is excluded from the record? Is it just or unjust when a suspect does not face trial on the merits because the case took too long? Is the result just or unjust when one equality seeking group clashes with another?

This short and highly readable book does not answer these questions either. But it will make the reader keep them at top of mind. And that in itself is the most important thing.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.