11/11/2009 05:12 am ET | Updated May 25, 2011

Lapses Are the Norm, Not the Exception When It Comes to Our Justice System

This weekend Milwaukee police finally cracked the case in a string of eight killings that occurred over 21 years, arresting Walter Ellis, a former inmate in state prison. But what should be seen as a victory for law enforcement has left some dismayed. Had Ellis's DNA been collected eight years earlier -- as is required of all inmates with felony convictions by a 2000 state law -- the suspect may have been identified more quickly and perhaps one death would have been prevented.

So why wasn't the DNA collected? John Dipko, a corrections spokesperson, said it complied with the law and that the evidence was sent to the state crime lab. But the state Department of Justice, which runs the lab, says it has no record of a sample. (To get the sample used to make the charges, Police Chief Edward Flynn said authorities had to obtain a "high risk" warrant of his home where Ellis's toothbrush was seized).

The throwing up of hands by different state agencies is typical of the systemic problems I encountered during the eight years I spent writing Ordinary Injustice: How America Holds Court. Law enforcement agencies work independently of each other, and don't coordinate well as a rule. So when problems do arise, they are quick to renounce responsibility. Usually, they blame each other. Meanwhile, while this finger pointing goes on, problems remain unsolved.

To date, there is a lack of information collection, which makes proving patterns of lapses in the justice system impossible. A lack of transparency exists. Sometimes the lapses hurt victims and their families, as in this case. But often times, those who are accused of crime bear the brunt of the system's collapse. Indeed, it is rare that an announcement of an arrest reveals a faulty process. Usually, we don't hear about problems in an arrest until it is too late, as in the case of the 241 post-conviction DNA exonerations. What these cases show, however, is just how flawed the process is -- whether it be a defense attorney who didn't do an investigation or a prosecutor who was too aggressive in gathering evidence and turned a blind eye to obvious flaws. Or, as in the case profiled in the New Yorker last week, a man was executed for setting a fire which killed his three daughters, even though evidence shows it was an accidental fire.

Last month, Justices Antonin Scalia and Clarence Thomas dissented in ordering a new hearing in the murder case of Troy Davis, where seven of the original nine witnesses have withdrawn their testimony (and the eighth is considered a suspect), saying that, "[T]his court has never held that the Constriction forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

In other words: the process should be enough even if you're innocent. The problem with this point of view is that it just doesn't take into account the reality of our state criminal trial systems.

What process is he talking about?

Amy Bach, a member of the New York Bar, is the author of Ordinary Injustice: How America Holds Court. Bach written on law for The Nation, The American Lawyer, and New York Magazine, and has taught legal studies at the University of Rochester.