INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (11 page)

- - - -

      
Because I’m late, I quicken my pace. I hurry across the street and up the hill, past Twin Donut and the always-smiling shoe guy; past Farooque’s sandwich shop, which is chock-full of annoying assistant DAs; and past the fraying offices of a few oldtime criminal defense lawyers, until the majesty of the Supreme Court comes back into view.

      
Perched at the corner of the Grand Concourse and 161st Street, the imperious old Supreme Court Building still cuts an imposing figure. With its bas-relief elevator doors and cavernous courtrooms, the building evokes the majesty of a different era --both for justice and for the Bronx. It is 10:39 a.m. as I bluff my way through the attorneys’ entrance, bypassing the snaking line of people at the metal detectors. Since September 11, attorneys are technically required to have a new high-security pass in order to avoid the line. In the intervening years, almost everyone complied, submitting to the indignity of a background check and registration, but like a few others, mostly the older or more radical lawyers who had been in the Bronx for years, I found the new requirements offensive --after all, they only applied to defense attorneys. Assistant district attorneys, clerks, court officers, and judges were exempt.

      
So I never bothered to get the new card but persisted in using the attorneys’ line as if it were my God-given right. Usually I walk right in, though a few sergeants, knowing full well who I am, delight in the petty exercise of making me submit to the line and a nice, slow, thorough search.

      
Nestled in a corner of the fourth floor of the Supreme Court, part 20 is known rather cryptically as the “Standards and Goals” part --“Standards and Goals” being a neat court euphemism for “old case,” “part” being just another term for courtroom. Once an incarcerated client has spent fourteen or fifteen months lolling around Rikers Island waiting for a trial, his case is likely to be shipped out to part 20. It’s the fast track to trial, and all three of today’s homicides are already there.

      
Inside, Judge William Mogulescu is likely to be exasperated, as usual. Mogulescu is fair and smart, but few lawyers please him. They all seem to be late, foolish, or unprepared. At just over six feet with a thick black mustache, he has the gaunt good looks and subtle dismissive wit of the lefty defense lawyer he used to be. Mogulescu is one of the few judges who wound up on the bench despite having represented radicals and protesters in many of the politically charged cases of the seventies and eighties. Named to the bench by Mayor David Dinkins (the first African American mayor of New York City), Moge is an artifact of New York City politics and an object lesson in the importance of judicial appointments. For years, many of the city’s judges were hacks --overwhelmingly white, politically connected former prosecutors, they terrorized both defendants and the lawyers who appeared before them, meting out justice that was informed more by the code of the streets than by any actual legislation. They were, basically, crazy.

      
“All the Jews up against the wall!” That’s what Judge Michael Curci once bellowed at a startled panel of jurors sitting patiently in his courtroom. Looking confusedly at one another, several men and women rose slowly from their seats. “You’re all excused!” said Curci, his pale, flabby arm extended toward the exit from his courtroom. “All Jews, out!”

      
To Curci, a former Republican state senator, this was a matter of expediency and not anti-Semitism. A completely Looney Tunes jurist, with an Elmer Fudd face, a Casper the Ghost complexion, and a wisp of hair that seemed drawn out of his scalp, Curci was known for his utter unpredictability and his wonderfully inventive vocabulary. Court officers and stenographers assigned to his part kept a running glossary of his hilarious malapropisms and incomprehensible phrases, such as “dangerosity,” “the psychic transmogrification of the Gestalt,” or “assidulosity” --as in “I will sign your subpoenas with great assidulosity, Counselor!”

      
An old-school jurist, the kind that wound up on the bench by slipping the right person thirty-eight thousand dollars in an envelope, Curci read
Soldier of Fortune
with great assidulosity and loved nothing more than to play with guns. Once, during an attempted murder case, he famously instructed a court officer to hand him the alleged murder weapon. “I assume this is unloaded?” said Curci, jacking the slide commando-style and pointing the weapon in the direction of the defendant while half the courtroom ducked. “Uhhhh, I sure hope so, Judge,” said a petrified ADA.

      
A beat as Curci considered.

      
Gazing at the gun longingly, he sighed. “This portends great dangerosity,” he said, and then, handing the gun back to the stunned court officer, “Take this weapon back to the robbing room and discharge it if necessary.”

      
What had set Curci off on his get-out-the-Jews rant was a succession of mild-mannered people patiently explaining that if they were to be chosen as jurors they’d need to be absent on the Jewish High Holidays. Curci apparently wished to work on Yom Kippur, and so, to minimize further delays by others with the same problem, he saw fit to order them all up against the wall.

      
As odd as he was about picking a jury, Curci was just as crazy without one. In one legendary case, Curci subjected a defendant who’d been foolish enough to waive a jury to a full-court mock deliberation. “If this were a jury trial, I’d instruct on self-defense,” Curci reportedly told the defendant. Then he spun his highbacked chair toward the courtroom wall, leaped to his feet, and declared, “The record should reflect, I have now charged myself with self-defense.” Plopping his squat little body back into his chair, he spun back around and faced the parties in the courtroom. “I am now deliberating!” he said, swiveling round and round in his chair.

      
The prosecutor, defense lawyer, and defendant all watched as the plump judge switched directions and spun back the other way. Around and around he went. “I’m
still
deliberating!” Curci said merrily as the defendant waited tensely to find out if he was going to prison or not. The seconds ticked by while the courtroom stared at him, agog. Finally Curci’s chair ground to a halt. Cocking his head like a retriever who can’t find a ball, he fixed the defendant with a solemn stare as he declared in his tinny little voice: “That’s it. I’m hung. Send it out!”

      
Mogulescu is no Curci. And he is in part 20 for a reason. He hates excuses and browbeats lawyers into either trying cases or pleading them out --NOW. Mogulescu is one of my favorite judges. As difficult as he can be, he is unusually thoughtful and almost always fair. But he is also a big bully. Moge does what he does because he believes that you have to be a bully in the criminal justice system to get anything done. To his credit, it’s also true that what he wants done is usually the right thing.

      
Years of my life have been spent navigating the dangerous reefs of a belligerent judiciary. Half of being a good lawyer is learning how to anticipate and cope with the idiosyncrasies of various judges: Darcel Clark, who can’t stand being interrupted; Barbara Newman, who requires a soothing, confident tone; Joseph Dawson, whose hot button is tardiness; or old Muriel Hubsher, who just wants to have a nice chat about fashion before sentencing a client.

      
But while knowing judges’ foibles is one thing, being immune to their vitriol is quite another. It’s hard to stare down a judge. They have enormous power --not just to jail you but also, as my early encounter with Tona taught me, to hurt clients.

      
The result of this power is a constant deference that turns many judges into spoiled divas who can’t stand even a hint of disrespect. Judge Carol Berkman once called me up in the middle of a hearing. “Mr. Feige,” she said, “let me be perfectly clear --my life is a living hell, and one more question out of you and I’ll make your life a living hell. Now shut up and step back.” I was also there when Judge Edward Rappaport, once a silvertongued dean of the Brooklyn defense bar, spewed, “Fuck you too” to a manacled defendant who wouldn’t accept his suggested plea. Self-important judges can be surprisingly nasty.

      
It is also true, though, that many nasty judges are all show. Take Blog the Cave Judge. Blog’s real name was Alan Lebowitz, and way back in 1992 he taught me a valuable lesson about pushing the limits.

      
Blog was trembling. His face was red, and he was doing a lizardlike thing with his tongue --flicking it just outside the left corner of his mouth.

      
“Ooooh, Mr. F-Feige,” he was stammering, “do
not
tempt me.”

      
His tiny courtroom was packed. The two-dozen mismatched chairs were filled with lawyers and misdemeanants awaiting his adjudication. It was nearly 3:00 in the afternoon, and there were at least a dozen cases left to go.

      
It had already been a long day, and by the time I got to Blog, I’d had enough. Enough of petty judicial tyranny, enough of my clients being mistreated and incarcerated for no good reason, enough of stupid prosecutors and lying cops --enough already. I was one very young, mightily pissed-off public defender, and Blog the Cave Judge was not about to back me down.

      
“Judge,” I said sharply, trying to interrupt him. We had been arguing for several minutes.

      
“No, Mr. Feige. No!” He cut me off. “Not another word from you.” My client gaped at me. He’d wanted a lawyer to fight for him, but he could sense that this was getting a little out of hand.

      
“Mr. Feige,” Blog warned, his tongue flicking like an iguana’s, “I am telling you now, do NOT tempt me. There is no one I’d prefer to hold in contempt than you.”

      
The idea that he would not only hold me in contempt for fighting for my clients, but would enjoy doing it was too much for me to bear. Slowly, defiantly, I turned completely around, placing my hands behind my back, one wrist flush against the other, thumbs almost touching. It was the “cuff me” pose --utterly familiar to anyone who had spent time in the criminal court system. There was an audible gasp in the courtroom. The seconds ticked by in exaggerated slowness as I waited to feel the steel.

      
“Oh, no, no, no, you don’t!” I heard him say. “Oh, no, Mr. Feige.” I still wouldn’t turn around. “You will NOT goad me into holding you in contempt, sir!”

      
I felt my shoulders slump slightly.

      
“No,” Blog exclaimed, “you will not!”

      
I turned around to face him, slowly, deliberately, and he was smiling at me, his head shaking slightly. It was a bemused smile, almost as if he couldn’t believe what I had just done. And all of a sudden I understood it: I had won. In that moment I knew that he’d
never
hold me in contempt, that for all his bluster, he was all bark and no bite. He had no power over me after all. Moreover, I realized there and then that unless a judge was really willing to put me in jail, so long as I was willing to feel the steel I had far more power than I’d thought. Looking at Blog, I saw that he knew it too and that the balance of power in the courtroom had just shifted from him to me. In his smile was the recognition that I’d called his bluff and he had folded, and that my appearances before him would never be the same. It was, almost, a smile of approval.

      
“What do you say we adjourn your case until May, Mr. Feige?”

      
“That seems just fine, Your Honor,” I said, still flush with the knowledge of what had just happened. “How’s the twelfth?”

      
“That seems like an excellent choice,” Blog said, still shaking his head.

- - - -

      
It’s 10:44 when I finally stride through the worn wooden door, keeping my head low, scanning the audience for Clarence, hoping Moge is too busy berating someone else to chastise me for my characteristic tardiness. As the door closes behind me, I look up and see that Moge is midsentence, seemingly focused on the lawyers in front of him. I’m heading straight for the podium where the clipboard with the day’s calendar is when I spy Clarence, give him a nod, and start looking around a little less furtively, sizing up the scene in the courtroom.