When Amy Bach titled her book “Ordinary Injustice” to describe how we have all come to accept and no longer even notice the everyday disgraces of our criminal justice system, certainly she had court appointed attorneys like Texas’ Martin Zimmerman in mind. The headline of this NY Daily News story, appropriately enough, grabs you with Zimmerman falling asleep during his client’s trial, failing to communicate his client’s acceptance of a prosecutor’s plea offer resulting in a twenty year increase in his sentence, and forgetting his client’s name during jury selection. But that’s just the beginning of the story’s ordinary injustices.
Of course, Texas became rather infamous in legal circles some years back when a courtroom judge, prosecutor, and courtroom clerk all allowed a court appointed attorney to fall asleep during the 1984 trial of a death penalty case. Needless to say, the accused, Mr. Burdine, was sentenced to death. Even after the sleeping defense attorney came to light, the state of Texas argued that it was just to have Mr. Burdine executed and, indeed, the Texas Court of Criminal Appeals denied Burdine relief on his state habeas corpus claim. It took the United States Court of Appeals for the Fifth Circuit sitting en banc in Burdine’s 2001 federal habeas claim to finally get Mr. Burdine a new trial, finding that a sleeping attorney was ineffective assistance of counsel.
It is with that backdrop that we turn back to Mr. Zimmerman. The first ordinary injustice that the News simply noted is that the trial judge, The Honorable Dib Waldrip said, apparently without shame, that “he was familiar with Zimmerman’s napping tendency.” That means that Waldrip or another judicial officer had appointed Zimmerman to represent Daniel Textor, Jr., knowing that he falls asleep in court. And whether or not Judge Waldrip made the initial appointment, he presided over a trial with a known napper as defense counsel. And apparently allowed him to nap. At what law school do Texas judges learn that our adversarial system achieves justice when one of the adversaries sleeps during trial?
Of course, unlike Mr. Burdine, Zimmerman’s client Daniel Textor, Jr. was not facing the death penalty. He was staring at a mere total sentence of 88 years in prison.
So that brings us to the second ordinary injustice that was too ordinary to dwell upon: Although we often hear the legal maxim that “the punishment shall fit the crime,” the ordinary injustice of our modern sentencing schemes makes such a sentiment seem quaint. Mr. Textor was arrested on Aug. 8, 2010 and accused of DWI with a minor in the car and spitting on the arm of a police officer. Post-trial, Mr. Textor was facing a sentence of 60 years for spitting on the officer’s arm and 28 years for the DWI. The plea offer that Zimmerman failed to accept per his client’s instructions was that if Mr. Textor pled guilty to a charge of “harassing a public servant” (presumably for the spitting), he would receive a sentence of 45 years and to DWI, a sentence of 20 years.
According to one report, Mr. Textor was a repeat offender. But a sentence of from 45 to 60 years for spitting on a police officer’s arm? Not even in his face. I don’t mean to suggest that these crimes are not serious and deserving of punishment, especially if Mr. Textor has been ’round this way a number of times before. But do those sentences really fit the crimes? Could that really be termed justice? And is Mr. Textor taking up bed space in prison for the next 6 to 8 decades (at an average cost to Texas taxpayers of $21,390 per year, before inflation over the next 60 to 80 years) really an efficient use of taxpayer money? Is there no one considerably more dangerous that should be occupying that bed for the next half century? Maybe someone who actually hurt another human being?
The fact that Judge Waldrip presided over a trial with a napping Martin Zimmerman, Esquire, and that Mr. Textor accepted a plea offer that netted him 65 years in prison suggests just how ordinary the extraordinary degree of injustice in our criminal justice system has become.
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