INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (12 page)

      
“Ahhhh,” Moge says, interrupting the case in progress before him, “it’s Mr. Feige!” The mockery is as biting as it is routine. “So very kind of you to join us today, Mr. Feige.” Moge is glancing at the clock at the back of the courtroom, preparing to continue his chiding: “And before eleven o’clock too! What a treat.” Some of the other lawyers look down, pleased that they’ve been spared the treatment.

      
Looking up from the clipboard, I fix Moge with a warm smile. “Nice of me, isn’t it?” I ask, while the judge shakes his head in mock annoyance. “Imagine me gracing you with my presence,” I continue. “Must be your lucky day.”

      
“Excuse me, Mr. Feige,” the judge says, “but I have a case going on here.” He nods at the lawyers in front of him as if to scold me for my rudeness in not noticing them, and then, having had enough, he goes back to actually dispensing his special form of justice.

      
The arrangement in Moge’s part is pretty standard: on the left, four assistant DAs; one supervisor, and three line assistants from the Trial Division. On their wide wooden table --the one closest to the jury box --their files are spread out, dozens of legal-size, preprinted manila folders lined up in alphabetical rows stretching from one end of the long table to the other. Behind them, shoved into a corner near the jury box, are the metal mesh handcarts the DA’s office uses to lug all that paper around. The front row --reserved for lawyers, cops, and the press --is only about half full. With Clarence present, what appears to be a short line, and the fact that almost everything I have in Supreme Court today is in Moge’s part anyway, I decide to risk it and stay, as opposed to leaving for a while to get some other work done.

      
For some reason, in every courtroom I’ve ever been in, the prosecutors get to sit next to the jury box --something most lawyers understand to be a significant advantage. Leaving aside the obvious issues, like when the assistant DAs ostentatiously leave inadmissible evidence lying on their table, plainly visible to the jury (or in one instance I remember, a file marked in thick black ink: SUPPRESSED EVIDENCE), being close to the jury allows a lawyer greater dramatic impact and an easier time of watching a juror’s reactions. While the defense is almost always farther from the jury, in some courtrooms just outside the city the defense actually sits behind the prosecutors. I learned this tidbit while chatting with a colleague who was second-seating a trial with a burned-out veteran in his office.

      
“Objection!” the grizzled vet would shout seemingly at random throughout the district attorney’s presentation, causing the pretty young assistant DA to leap up in protest. “What’s the objection?” she’d demand, flummoxed.

      
“Overruled,” the judge would murmur blandly before anyone had a chance to answer.

      
“So, why
are
you objecting?” my colleague eventually asked in a whisper, after yet another completely frivolous objection. Surely, he thought, this being a murder case and the veteran being such an accomplished trial lawyer, there had to be some subtle reason he just wasn’t grasping. Leaning in conspiratorially, the old guy nodded sagely and gestured toward the young assistant DA trying the case in front of him. “You know, every once and again,” he said with a shrug, “I just like to look at her ass.”

- - - -

      
There are very few judges who will ever consider releasing someone charged with murder. It is, quite simply, an unacceptable political risk. Judges live in fear of “soft on crime” headlines, and one of the surefire ways to wind up on the front page of the
New York Post
is to release an alleged murderer, whatever the evidence or lack of evidence.

      
“You know,” Judge Ralph Fabrizio said to me sotto voce as I peered up at him during a bench conference one evening, “the first thing they teach you in judge school is that no one ever got bounced off the bench for setting bail too high.” I’ve heard this theme a dozen times over the years from various jurists, and it disgusts me. Over the years, one judge after the next has confessed their moral failings to me.
Please
, they plead,
you have to understand. I can’t just do what’s right --I have a job to protect
. This sort of moral equivocation is precisely why I loathe so many judges. If you can’t do the job, if you can’t be strong and stay above the fray and do what’s right, get the hell off the bench and make room for someone who can, I always want to tell them. Sadly, knowing full well that my condemnation will make no difference, I usually deliver a far milder rebuke.

      
I’ll trade a lot for a simple sense of moral conviction and the courage to implement it. And that Moge has in spades. He’s one of the few judges who seems to rule without fear. This makes being in front of him, dealing with his wry derision and constant condescension, worthwhile.

      
And having Moge today truly is the luck of the draw. Back when he was still in jail, about three weeks after the grand jury indicted him, Clarence appeared for the first time in Supreme Court to plead not guilty to the indictment voted against him. It was there that a court clerk spun a big metal wheel to determine which Supreme Court judge would hear Clarence’s case. “Spinning the wheel” is one of the most stressful moments in a criminal case, since the judge you draw has as much to do with whether you’re eventually locked up and for how long as almost any other factor. As the clerk pulled the little white card from the wheel and read the name printed in black block letters into the record, I couldn’t believe how lucky Clarence and I were.

      
“Moge,” I told Clarence, “is the kind of judge who might actually release you if we can convince him you’re innocent. He’s the best draw we could have gotten.”

      
Clarence was bewildered. “Why wouldn’t
any
judge release me if they thought I was innocent?” he wanted to know. “Isn’t that what they’re supposed to do?” This is a tough question and one that deserved a longer and perhaps more honest answer than I was prepared to deliver while standing on the filthy side of the graffiti-scarred door that separated the courtroom from the barred pens of the Department of Corrections.

      
“Trust me, Clarence,” I told him, “if there is a way outta here before the trial, Moge is the best chance we’ve got. You just need to hang in there until we can get to him and really put our best foot forward.”

“Let’s go!” a burly corrections officer yelled.

      
“Just hang in there, buddy,” I said, trying to be cheerful.

      
Shaking his head forlornly, seemingly searching for some untapped reserve that would see him through another stretch of incarceration, Clarence turned to shuffle up the worn staircase.

      
He emerged again twenty days later, in his very first appearance in Judge Mogulescu’s corner courtroom on the fourth floor of Bronx Supreme Court. Just after noon, two white-shirted court officers led him in, his face just a bit thinner, his eyes betraying an almost panicked sadness, to face Moge.

      
“I understand you have a bail application to make, Mr. Feige?”
 
the judge said.

      
“I do, Your Honor,” I replied, taking a big breath and offering up a little prayer to the gods of judicial kindness.

      
Armed with witness statements, psychiatric records, and the presence of much of Clarence’s extended family, I made my pitch.
 
A single witness had identified Clarence as the shooter. That witness, drunk at the time of the shooting, hadn’t seen what he thought he saw. Indeed, I argued, he was contradicted by other people and undermined by a psychiatric history that included hallucinations. There was no physical or forensic evidence to link Clarence to the crime. Moreover, my investigation revealed that three witnesses had described two males fleeing the scene — Clarence, though, lived upstairs. I also had two alibi witnesses that were willing to testify that Clarence was home when the shooting happened, and we’d uncovered evidence that suggested that the decedent had been involved in a drug-related murder two weeks before he himself was shot. Even the DA’s office conceded that Clarence was not involved with dealing or gangbanging, and was, therefore, far less likely to be the shooter than someone in one of the rival drug gangs who actually had a motive. Finally, we had a petition, signed by dozens of residents of the building where both Clarence and the decedent lived, insisting that Clarence was innocent. Outlining each fact, I kept looking up, scanning Moge’s face, searching for a cue. None came.

      
Assistant District Attorney Paul Rosenfeld went next. Sure, he allowed, he had some information concerning the previous shooting, and it was under investigation, but other than a weak familial alibi, the defense had provided nothing real, nothing substantive that proved Clarence was innocent, just a sad assemblage of conjecture far short of justifying a defendant’s release on bail in a murder case. Moge was still impassive.

      
“So, what do you suggest I do, Mr. Feige?” he asked me.

      
The judge’s question was calm but warning too, telling me, in essence, make your pitch but do it right, don’t ask me to do something stupid here, be measured, be responsible . . . think.

      
“I’m asking you to set a partially secured surety bond of one hundred thousand dollars,” I said calmly, suggesting a kind of bond that requires several people to promise to pay but only requires them to put up a small amount of cash (it is a section of the bail statute that is almost never used).

      
There was a pause as Mogulescu nodded, lips slightly pursed. I couldn’t tell whether the expression was deliberative or approving.

      
“And so I’d assume you have suitable suretors?”

      
“Yes, Your Honor,” I said quickly. “And they are available to sign surety affidavits and post the cash portion of the bail today.”

      
“Judge!” the assistant DA tried to interrupt, worried that things were going my way.

      
“I understand your arguments, Mr. Rosenfeld,” Mogulescu said, raising an eyebrow slightly and looking over at me to make sure I knew what was coming. “I’m going to grant the application.”

      
Three hours later, Clarence was free.

- - - -

      
Today, Clarence is sitting in the fourth row. His collared shirt is neatly pressed and carefully tucked into his pants. Wagging my finger toward the door, I silently indicate that he should come outside with me for a second. Moge is still torturing the lawyers in front of him.

      
The moment the doors swing closed behind him, Clarence turns to give me a big hug. He’s happy to see me, but he’s also agitated and has a whole bunch of questions. Clarence
always
has questions. Now that he’s out of jail I have a lot less patience with Clarence. Normal questions feel cloying, and reasonable expectations feel disrespectful. I know they shouldn’t, but Clarence doesn’t seem to get what a big deal getting out of jail on a murder case is, and even though I don’t expect gratitude, his insistent belief in his own innocence seems to be dangerously close to denying the reality of the system --something I always feel duty-bound to correct.

      
“David,” he says urgently as we huddle across from the doors to the courtroom, “I can prove I’m innocent --really I can!”

      
“That’s great, Clarence,” I tell him. “How?”

      
I’ve gone through this kind of conversation many times. Clarence constantly believes he’s one court appearance or one little realization from vindication. From his point of view, he’s so obviously innocent that no moron could fail to see it. For me, on the other hand, getting him out of jail was the first step in an arduous two- or three-year process of what I hope will be his eventual exoneration --for me, that process is fraught with terrifying pitfalls, any of which could lead to a lifetime in prison.

      
“
It’s the gun
,” Clarence whispers, nodding vigorously as though he can’t wait to reveal the secret he’s uncovered this time. Clarence has clearly been spending a lot of time figuring out just how to present this proof of innocence to me, and I can tell from his quavering voice he’s about to make a big presentation.