INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice

I N D E F E N S I B L E

ONE LAWYER’S JOURNEY

INTO THE INFERNO OF

AMERICAN JUSTICE

D A V I D
   
F E I G E

- - - -

FOR PUBLIC DEFENDERS EVERYWHERE

AND, AS EVERYTHING IS,

FOR MY FATHER

- - - -

A U T H O R ‘ S
  
N O T E

      
This book is a work of nonfiction.
 
All of the characters in it are real, and most of them still work in and around the Bronx Criminal Courthouse. Although I have changed many client names and details to ensure privacy and privilege, most everyone else, including judges, prosecutors, and defense lawyers, is identified by his or her real name throughout the book.

      
The book begins in the morning and ends at night—compassing a single day in my life. The day was real, and though I have taken some license with the chronology and in a number of instances brought together incidents that happened on different occasions, there is no character compositing.

      
Finally, because I didn’t take notes on every utterance in every court appearance (I was up there doing much of the uttering, after all) or obtain transcripts, much of the in-court dialogue is closely approximate rather than verbatim.
  

I N T R O D U C T I O N

      
I took my first homicide on a Saturday night. It was 1994, at the tail end of a year of almost incomprehensible criminality. In the preceding year, 1,927 people had been gunned down, stabbed up, or beaten to death in the streets, slums, and parks of New York City. More than 430,000 --a number exceeding the population of Atlanta, Georgia --were victims of a serious crime.

      
Of the five boroughs of the city of New York, Brooklyn contributed nearly 40 percent of the murders: 724 in one year --an average of two every single day.
 
People were being shot at in Brownsville, bludgeoned in Bed-Stuy, flattened in Flatlands. There were certain stoplights in East New York that were reputed to be so likely to produce a gunpoint robbery or carjacking that the common practice was to blow right through them. Crook-fear racked the city, and judges, prosecutors, and the
New York Post
made careers out of tough-on-crime posturing.

      
The day I reached for that case, I had been a public defender for fewer than three years. Legal aid lawyers weren’t actually supposed to touch homicides; murder cases were generally reserved for fancier appointed lawyers from what was known as the “homicide panel.” But with the glut of bodies, no one was paying too much attention. Besides, there were always several murder cases kicking around the office, handled by grizzled veterans, confirmed in their seniority by the fact that they had homicides.
  

      
I still remember seeing the thin sheaf of white paper in the wire basket. Gillian Sands. First arrest. Murder in the second degree.

      
Glancing around, besotted by my own ambition, I picked it up. Typed on the onionskin page in the blotted sans-serif script of the computer printer was the single sentence that implied a potential life sentence: “The deponent is informed by the defendant’s own statements that, at the above time and place, the defendant did stab Rodney Sands repeatedly about the body with a knife, causing Rodney Sands’s death.”

      
That was it. One sentence. Knowing then what I know now, I’d never have touched it.

- - - -

      
Gillian couldn’t stop crying. She was guilty. She told me so right off the bat, insisted on it really.

      
“I could just plead guilty now,” she told me. “It’s okay. Whatever happens, I deserve it.” Gillian had a big bruise on her cheek, her eyes were red and swol en, and she had a look of utter defeat on her face. “I killed him. . . . I loved him, and I killed him. It was all my fault,” she said, sobbing.

      
“I couldn’t help it —I’m so sorry. He was beating me --it’s all
 
my fault.”

      
“Umm, Ms. Sands.” I’d hardly uttered a word before her confession. “You can’t actually plead guilty now anyway. This proceeding is just to determine whether you stay in jail or get to go home. And besides, no matter how bad you feel right now, I’m not clear that pleading guilty is the right decision --especially if you were being beaten up.”

      
“It doesn’t matter,” she told me flatly. “I already told the police I did it. It’s all there on the videotape.”

      
Things had been good at first, Gillian told me, at least until she got married. Then the hitting started. She’d go to work each day, washing and braiding hair, doing nails in the painstaking French style favored by women in the Marcy projects where she and Rodney lived, and come home, happy to see her man, happy to hand him the clump of cash she’d made that day in tips.
 
“Hmm,” Rodney would say, looking at the money. They’d have dinner, and then, as predictable as rain, his fist would slam down on the table or his booted foot would smash into her shin or he would smack her face, her ear, the side of her head --hard. It got worse fast; within months of her wedding, Gillian, who still didn’t understand how the fights and violence escalated so quickly, began to arrive at work with bruises, welts, and, at least once, a fracture or two.

      
On the night Gillian stabbed him, Rodney had chased her into the kitchen. He was drunk and swinging; Gillian saw a knife on the counter, picked it up, and poked him with it. Then she stabbed him again, nicking an artery and killing him.

      
As guilty as Gillian thought she was, and as much as she was ready to be punished for what she’d done, the more I listened to her, the more convinced I became that under the law of self defense she might actually be innocent.

      
By the time I emerged from the interview booth over an hour later, excitedly flipping through a sheaf of notes, I was convinced. It was by far the most comprehensive interview I’d ever done with a client. And as I wandered back into the garishly lit courtroom, tiptoeing around the crowded bench, sitting down to compose my thoughts, in those moments of distilling the complicated narrative of Gillian’s life into a persuasive argument for her release, I’d never felt as alive, as terrified, or as righteous.

      
“Is it true you took a murder?” one of my colleagues asked suspiciously. Short and pretty, with a wide, expressive face, Lisa was a great lawyer but a huge rule follower. I just nodded quietly, concentrating on doing the best bail argument I’d ever done.

      
“Eddie is gonna fucking kill you,” she said.

      
“It’s just for arraignments --and Liz was busy anyhow,” I explained rather unconvincingly.

      
“I’m just saying. You’re fucked. Eddie already thinks you sneak cases.”

      
“Eddie
knows
I sneak cases, Lisa. Eddie respects me
because
I sneak cases. Eddie wants people who yearn, people who long to fight. He’ll get over it.”

      
“Whatever. I just don’t wanna be you come Monday,” Lisa said, shrugging. She was trying to protect me. Lisa did that a lot. Like several other people in the office, Lisa always wanted to save me from myself --often with good reason.

- - - -

 
“
People versus Gillian Sands
,” chimed a court officer, handing a small stack of paper to Judge Marty Karopkin. “Charged with murder in the second degree.”

      
“David Feige, F-E-I-G-E, of the Legal Aid Society appearing on behalf of Ms. Sands,” I declared boldly.

      
The prosecutor twisted his head around to glance at me. His face was quizzical:
Feige’s doing a murder
?

      
“Dino Lombardi on behalf of the people,” the prosecutor said, proceeding to serve the formal notices required at every arraignment.

      
Lombardi was a good man. Big and round and oozing a kind of Brooklyn smooth, Dino was the kind of thoughtful, laid-back prosecutor it was a joy to have a case with. Unlike most of the people in his office, Dino seemed to viscerally understand that the line between victim and perpetrator was always fine and not always clear. Dino didn’t get exercised about much and was respected as a guy who’d do what he thought was right, not just what his boss told him to do.

      
“Your Honor,” Dino said slowly, “the defendant admitted stabbing the victim, causing his death. This being a homicide, I’m required by my office to ask for remand.” To remand a defendant means to hold him or her without bail --no amount of money will get them out.

      
Bail applications are usually short and sometimes nonexistent in murder cases. No judge in his right mind is ever going to let someone charged with murder out, and it is not uncommon for lawyers facing a particularly nasty judge to reserve a bail application altogether, preferring to make the argument once additional investigation is done and there is a different, more reasonable judge. That’s why I figured there’d be little harm in my doing the arraignment in the first place --everyone gets held without bail, so even if I screwed up, the results would be indistinguishable from having done everything right. And who knew? Maybe I’d get lucky.

      
“Anything else, Mr. Lombardi?” Judge Karopkin asked.

“No, Judge,” Dino said firmly.

“Mr. Feige?”

      
This was my moment, and glancing down at the outline I’d prepared, I launched into one of the most exhaustive and extensive bail arguments I’ve ever made. I described Gillian’s work history and her ties to the community, laying out in detail her family, her friends, and her connection to the city. There was no way that Gillian Sands was going to jump bail. And then I turned to Rodney --to their relationship, their love, and the crushing tragedy of an intimate life turned violent. I talked about the witnesses to prior instances of violence, of her fear of Rodney, of his criminal record and his history of violence, and I talked about Gillian, about her remorse, her pain, and her guilt; about how Rodney said he’d kill her this time, how she’d fled before his rage; about how desperate she was to make him stop hitting her; and about how she had no choice but to stab him. As I did, Gillian wept silently next to me —tears of pain and remorse and self-loathing.

      
I ended with a simple plea: “I beg you, Your Honor,” I said, my voice quavering from the potent mixture of stress and passion, “I beg you to please just release this woman.”

      
I had spoken for nearly fifteen minutes. The judge turned back to Dino Lombardi.

      
“Mr. Lombardi,” he said, “Mr. Feige has raised some significant issues concerning the strength of this case and the claim of self-defense. Would you like to respond?”

      
And there and then, Dino Lombardi did the most decent thing I’ve ever seen a prosecutor do: looking straight at Karopkin, his voice low and steady, he said,
 
“I have seen the videotape, Your Honor.” And then, shaking his head slowly and emphatically back and forth, his chin nearly touching each shoulder in sequence, he said, “
And I am required by my office to ask for remand
.”

      
There was silence in the courtroom. Karopkin looked hard at Dino, as if to reassure himself of what he was seeing, and Dino Lombardi held his gaze, his jaw set in a look of determination. And then he did it again: slowly and deliberately, he gave Karopkin the head shake.
I don’t believe in what I’m saying
, he telegraphed silently so that the court reporter (who only notes words) couldn’t take it down. If a supervisor ever reviewed the transcript of the proceeding, Dino would be totally clean --a bored ADA who was just following procedure late on a Saturday night.
 
But there in the courtroom, before the silent gaze of Marty Karopkin and the astonished looks of the assembled legal aid lawyers waiting for me to go down in flames in my first murder case, Dino was silently saying something else entirely.

      
“Though unusual given the charges,” Karopkin declared a moment later, “given the history of abuse Mr. Feige has brought to my attention and the defendant’s ties to the community, as well as the fact that this is her first arrest and that the entire case seems to rest on a confession that may itself make out a defense, I am going to release Ms. Sands on her own recognizance.”

      
There was an audible gasp in the courtroom. Dino nodded slightly, pursing his lips in an approving look. Gillian stood stock-still.

      
“Step out!” declared the court officer behind us as the courtroom breathed a collective sigh of relief.

      
“C’mon,” I said to Gillian, gently guiding her out of the well of the courtroom, “let’s get out of here.”

      
Thanks to Dino Lombardi, I’d gotten my first murder client released without bail. It would be more than a decade before I was able to do it again. As I would spend that decade discovering, most of the 300,000 people criminally prosecuted in New York City every year don’t get a thoughtful judge or a compassionate prosecutor. Most are hounded by assistant district attorneys who lack either the heart or the courage needed to defy the institutional imperative to convict
no matter what
. Many are just plain shuffled through the system so damn fast that no one has time to think about much beyond the docket number stamped on the case files at arraignment. They are paraded before judges who have seen it all a thousand times and couldn’t care less about the factors that make each case unique and each defendant human. But they did that night.