INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (14 page)

      
From all indications so far, I’m not going to be getting much done myself this morning. I thank Lorraine, flip the phone closed, and step back into the courtroom to assay my progress.

- - - -
 

      
It looks as if there are only one or two cases in line in front of me, and as a nearby court officer shuffles through the pile of blue cards on the table in front of him, I offer up a little prayer, hoping that the next batch of inmates to be brought down will include Alberto or Reginald, or maybe both.

      
Reginald McFadden’s case is interesting partly because of how hard it will be to get rid of it. Reginald’s record is so bad that almost any plea would mean a life sentence. On the other hand, this is a classic plea case --one in which the weapon was a kitchen knife, there was only one stab wound (something that makes a murder rather than a manslaughter conviction unlikely), and all of the witnesses, as well as the dead guy, were high on crack. (Crackhead witnesses have an astonishing habit of disappearing just before trial.) But I can’t think about Reginald just yet --I still have to hustle Clarence through this adjournment.

      
The clerk is looking agitated. “Where’ve you been?” he asks in a slightly hostile tone. “Just outside,” I say, vaguely annoyed that he didn’t recognize my obvious signal to him. Mercifully, before the exchange can go any further, Moge uses his free hand to motion Clarence and me straight up to our places at counsel table. Standing there, Clarence shoots me a nervous glance. It’s always scary standing before a judge. And no matter how routine an appearance is, no one is safe from the creeping fear that something could go awry --that somehow, with the wrong move or a bad argument, the court officers standing just a few feet away could reach for their cuffs and, with a nod from the judge, lead you away, back toward the door by the jury box, to jail. Clarence feels it, and I do too --this is just another chance to blow it.

      
I give Clarence a reassuring smile and pat his back gently with my right hand. An ADA steps up, and everyone is in his place.

      
“Remember about the autopsy,” Clarence murmurs insistently.

      
“I’m not mentioning the autopsy, Clarence,” I whisper back. “You gotta shut up and trust me here.” Clarence looks down, chastened.

      
I’ve always believed that one of the best ways to foster a client’s trust is to provide them with every bit of paper associated with his or her case. There are many lawyers who either don’t bother or prefer not to send the case file, the motions, and the police reports to their clients. But supplying clients copies of all the paperwork gives incarcerated inmates something to do while they spend a year or two waiting for their trial, and it gives clients a sense of the case against them --something tangible to pore over, to think about. The not unexpected result of this paperwork empowerment, however, is an enormous number of conversations like the one I seem to be perpetually having with Clarence.

      
“Look,” said a client of mine charged with burglary just a few weeks ago, “it says here that no one was home. So how could they know it was me if
no one was home
? Huh?”

      
Jimmy was a skinny white kid, with beady eyes and an amphetamine-fueled inquisitiveness. He was the kind of kid who was proud of his insight into the criminal justice system and would spout off confidently to other inmates in the cell, finding power in dispensing often-erroneous legal advice. We were sitting in the dank interview room on the sixth floor of Supreme Court, where general population interviews take place. Jimmy was so skinny that he barely filled the gray plastic chair he was sitting in. His eyes were narrowed, his face flushed, his hands folded on the table --fingers interlaced in a “let us say grace” kind of pose --leaning in at me, challenging me to disprove his brilliant theory.

      
“Well, Jimmy,” I said, smiling back at him, “they’re not relying on anyone
saying
they saw you --they’re saying that when they stopped you down the street, you had the complainant’s Discman on you and a credit card with her name on it.”

      
These sorts of conversations take patience and caring, and without really understanding that most clients are terrified and desperate, it can become insufferable to have to listen to the arguments --especially those aggressively propounded by jailhouse lawyers like Jimmy.

      
“That’s bullshit,” Jimmy said firmly. “I know the law, and if they got no witness, they got no case.”

      
“Jimmy,” I tried again, trying to be calm but firm, “that’s not true. They can prove your identity circumstantially . . . that means by evidence other than direct observation.”

      
“No they can’t,” said Jimmy simply.

      
“Yes, Jimmy, they can,” I insisted. “Look, if they had your prints inside the house, would you cop out?”

      
“
IF
they had my prints,” Jimmy replied, fixing me with a tough stare and uttering the
if
in a way designed to accentuate his skepticism. “Yeah --a course I’d cop.”

      
I gave him a smile. “But they only got your prints --not a witness.”

      
“Yeah, but if my prints are there, I gotta have been there,” Jimmy explained to me.

      
“Exactly,” I told him. “That’s
circumstantial
evidence of your presence.”

      
“Yeah?” Jimmy asked.

      
“Yeah,” I said emphatically, “just like the goddamn credit card with her name on it in your pocket ten minutes after the burglary.”

      
“But I coulda
found
that,” Jimmy said, a little fight still left in him.

      
“Sure, you could of,” I said sweetly, “and if we go to trial that’s what we’ll argue --that in those few minutes the real burglar ran up to you and just handed you the lady’s credit card and Discman, and that you took them ’cause you didn’t know what else to do, and then the guy ran off just as the police came.”

      
“Yeah --that’s right!” Jimmy said, enthused that I’d properly asserted his defense.

      
“Jimmy, all you gotta ask yourself is, are twelve people gonna believe that story? ’Cause one might hang the jury, but all twelve gotta agree before you walk.”

      
“Sure, why not?” he asked.

      
“Most of all ’cause it sounds like bullshit,” I explained in the most legal of fashions, “but if that’s how you wanna go, you need to understand that’s what we’ll do. But you also need to know that if you get convicted, you’re gonna get football numbers --like fifteen flat when we go down.”

      
“Oh” was all Jimmy said. Then, after a long pause, his eyes darting around the room, his narrow face screwed up into a mask of concentration: “And what they offerin’ me?”

      
I tilted my head back, slowly and soberly, being careful not to show that I knew he was about to cave. “Three flat,” I told him. Holding his gaze, I waited patiently for the reaction I knew, with that public defender instinct, was coming.

      
“Okay, I’ll take it,” he said, nodding as if we had just agreed on the purchase price of a 1984 Volvo wagon.

- - - -
 

      
“Number sixteen on the calendar, indictment number thirteen of 2003,
People of the state of New York versus Clarence Watkins
,” the clerk intones, officially calling Clarence’s case into the record.

      
“David Feige --F-E-I-G-E --of the Bronx Defenders appearing for Mr. Watkins,” I say as Moge looks down impatiently.

      
“So,” Moge inquires, looking at the ADA, “are we ready for trial today?” Moge already knows that I’m not ready, that I’m still searching for the information that will conclusively vindicate Clarence. This is his way of putting the ADA’s feet to the fire and taking the pressure off me. I appreciate the gesture.

      
“Where are we on this case, People?” Moge demands.

      
“The People are not ready, Your Honor,” admits the ADA, sounding resigned to the tongue-lashing he’s about to get. “As I explained to the court earlier, Mr. Rosenfeld is on trial in another matter.”

      
“Ah, yes, Mr. Rosenfeld again,” Moge says sarcastically of the ADA assigned to the case. “And when did we agree Mr. Rosenfeld would deign to try this one?”

      
He gets no answer, so he turns to me. “And you, Mr. Feige?” he inquires as Clarence shifts nervously.

      
“Given the situation, how’s the twenty-sixth?” I ask nonchalantly.

      
Moge is good to me today. He raises an eyebrow slightly and says, “Twenty-sixth, People?”

      
“That’s fine,” says the ADA, a note of relief in his voice too.

      
“See you all then,” Moge says, smiling.

      
On to the next case.

F i v e

11:03 A.M.

      
As Clarence heads out the front door, a court officer comes through the rear one --the one that leads to the back hallway and the stairs to the bull pens. I can see that he has blue cards in his hand --a sure sign that an incarcerated defendant or two is about to be brought in. I’m hoping to see Alberto, Reginald, or maybe even both.

      
Reginald McFadden is a killer, a thief, a drug user, and an all-around badass, and I love him. Reginald went to prison for the first time just before I was born, five years in ’64 for an offense lost to time (record keeping wasn’t so great back then). Paroled in 1968, Reginald caught his first murder case within a few years, and sometime in the early seventies --his rap sheet was quite clear on this point --he got ten years for manslaughter. Eventually released after serving that sentence, Reginald filled the eighties with a series of robberies, parole violations, and a few drug cases. All told, Reginald had been sentenced to prison on six separate occasions. He was, according to almost anyone’s calculus, a bad man, or by mine, a man with a very bad record.

      
Reginald is charged with stabbing a crackhead. One poke, right in the heart. With a heart wound (in this case a little nick to the aorta) the blood comes fast and furious. The dead guy was found splayed across a cheap mattress laid casually in a corner, the thick pool of blood soaking his shirt, trickling down his torso, inching across the plastic sheeting that covered the mattress, and pooling on the dirty linoleum floor. In cop lingo, he “bled out.”

      
Reginald was arrested months after the stabbing, after the police released the first few guys they charged. From what I can tell, there is not much of a case against him. Though the cops have the murder weapon, neither Reginald’s fingerprints nor his DNA is on the knife, and the bloody footprint left on the floor in the house seems to belong to a shoe far larger than any Reginald would have worn.

      
I was there the night of his arrest.

      
Long before Bronx Homicide moved to the stately renovated manor house that eventually held the marquee assignments of Bronx copdom --Special Victims, Sex Crimes, and RIP (a special robbery squad) --the Bronx Homicide Task Force was jammed into a small squad room on the second floor of the run-down fortyeighth precinct. Buried under the hulking pylons of an elevated section of the Cross Bronx Expressway, the 4-8 was a dingy but vibrant station house built in a style that would have made a Soviet architect swoon for its brutal, unadorned efficiency.

      
The entrance, facing the underside of the highway, opened into a reception area reminiscent of the station on
Hill Street Blues
: a large central desk, filled with baskets of forms, surrounded by milling uniformed cops and presided over by a disaffected desk sergeant. On the side, more cops, pairs and trios gathered around corkboards jammed with flyers, union messages, wanted posters, and row upon row of recent regulations.

      
Walking into the Homicide Task Force office on the night Reginald was brought in, I passed through knee-high swivel gates --saloon doors for Lilliputians. It felt like stalking into the Wild West.

      
A homicide detective named Infante was waiting.

      
“He’s over there” is all he said, hooking a thumb toward the cage where Reginald was sitting.

      
It was 7:35 p.m.

      
“Mr. McFadden,” I said, walking over to the bars and slipping a card through them. “My name is David Feige, and I’m gonna be your lawyer.”

      
I hadn’t yet seen Reginald’s rap sheet and had no idea whether or not he’d been through the system before, so I started with the basics: “Mr. McFadden,” I said carefully, “I don’t know much about what’s up here, so all I can tell you is this: they’re looking at you for a homicide, they wanna do a lineup, and that means we gotta be serious and we gotta be careful. Now I don’t know if you’ve said anything to them yet, but —”

      
Reginald cut me off. “I’m familiar with the process,” he said evenly. “It’s all right . . . I understand. I haven’t made any statements. . . .” He trailed off, and I smiled.

      
I liked the guy already.

      
Interviewing clients at a precinct can be a dangerous proposition. Most of the time they’re desperate to explain their side of the story, naively certain that they can talk or explain their way out from behind the bars. Reginald did not seem to have this problem. Unlike him, most clients have already made statements to the police, and some are baffled as to why the explanation hasn’t proved sufficient to set them free. Faced with a lawyer, many clients wrongly think that reiterating their statement will help, and that once the lawyer is convinced it’s a simple matter to set them free.

      
In that, as in many things, they are wrong.

      
Generally, I preempt any such discussion. “I don’t want to discuss anything about what might or might not have happened right now,” I told Reginald, leaning farther into the bars, “so everything we talk about tonight is just gonna be about procedure.”

      
“No problem at all,” he said.

      
“And by the way, Mr. McFadden.” I nodded as my right hand, palm down, snaked through the bars, fingers covering the cigarette pack below. Reaching out, knowing exactly what was going on, Reginald held my gaze while gently taking my hand, relieving me of a sealed pack of Newport 100s.

      
“Thanks for coming down.” He smiled.

      
Newports are a surefire way to start off on the right foot with a client. A sealed pack (sealed to protect me against any allegation of passing real contraband) is an unspoken proclamation of empathy
--I know you’re stressed out. I know being in a cage really sucks. I know you want answers that I can’t provide. But I know the drill; I’ll bend the rules, and right now this is about the most I can do for you
.

      
Cops use them as well. They are (or were until they were banned from Rikers recently) a favored form of jailhouse currency --worth favors and commissary all around the island. Slipping someone a pack (assuming the client is not fresh faced and scared, in which case they’ll just get jumped and robbed of the cigs) will put them in good stead for their first week or so on the inside.

      
Ten minutes went by. I handed Infante a written request asking him to do the lineup a particular way; he threw it in the garbage.

      
“I’m gonna do this my way,” he said.

      
His way seemed to be the slow way, and three hours after I arrived, five men walked in, herded by two uniformed officers. They ranged from five foot six and 150 pounds to six two and 235, and seemed to have little or nothing in common with my five-ten, 210-pound client. The men filed by. Twenty minutes passed before Infante was ready.

      
I took out my 35mm camera.

      
“You’re not taking pictures of my lineup,” Infante said. “You can have copies of the Polaroids.”

      
This is another cop trick. Not all detectives do it, but many do. Just before a lineup takes place, a detective will snap a few tiny Polaroids from far enough away that facial features become indistinct. They further ensure that this is all the documentary evidence there is. The advantage is that when a judge can’t see the problems in a lineup, he’s unlikely to suppress. Refusing to allow decent pictures designed to document a deficient lineup is the kind of overt manipulation of the system that should be punished. But in all my years, I’ve never seen a judge even blink when the cops overtly acknowledge that they prevented the defense from taking pictures, opting to rely instead on their crappy snapshots. Some confident cops and particularly seasoned detectives who are secure about their lineups will actually allow the defense to take better pictures --and in those rare instances I’ll insist that the investigator take a dozen shots (a closeup of each face, pictures of each pair and each threesome, and several of the whole lineup). But those situations are the exception, not the rule.

      
I headed into the lineup room, but Infante stopped me, preventing any discussion with the fillers --the guys, usually homeless, getting ten bucks to stand next to Reginald in the lineup. In most instances, the defense is at least allowed to ask the men for their precise height, weight, and age --not today though. Infante’s the one with the gun.

      
The cage was opened up, and Reginald was walked into the lineup room. We chatted for a few minutes, and he sat down in position number four. A sheet was draped over everyone, obscuring each from the belly button down. Several of them had gray sprayed in their hair, a few others had ridiculous-looking fake facial hair rubber-cemented into place. Reginald was, even by Infante’s questionable calculus, fifteen years older than the next-closest person. Half of these guys might as well have been white for all they resembled Reginald. Of course, with the Polaroids, even a judge with a magnifying glass would have trouble seeing the differences.

      
“Everybody ready?” Infante asked. And then, without waiting for an answer, he turned and headed for the viewing room. And there, in the narrow room, my back pressed up against the wall, two extra detectives crowded in, I got my first look at the witnesses against Reginald.

      
“See anyone you recognize?” Infante asked coolly as a wanlooking woman scanned the lineup.

      
Seconds ticked by in agonizing silence as she looked back and forth among the men before her.

      
“Take your time,” Infante said. “No one can see you.” “I don’t see anyone.”

      
“Take your time,” Infante said again, an edge in his voice. A few more seconds.

      
“I don’t see anyone,” the woman repeated feebly, seeming confused.

      
“Just try to remember.” Infante again. It had been forty-five seconds, maybe more, and the tension was palpable. Infante was trying to force a pick.

      
“She just said she doesn’t see anyone,” I said sharply.

      
“Quiet, Counselor!” Infante snapped.

      
“Sorry,” the witness said simply before being led out. The blinds came down. Infante glared at me.

      
Another detective from the squad brought in the next witness, a man this time, a tall African American with darting eyes.

      
“See anyone?” Infante asked.

      
The man, stooping toward the window, started to make a light humming sound, as if he was thinking.

      
“Take your time,” Infante urged. The man seemed as though he was going to say something at any moment. His lips were pursed, and he continued to hum. I counted the seconds off, trying to keep track of how long it was taking him, and he finally muttered something.

      
“Nope.”

      
That was it. Infante was visibly upset.

      
“Look again!” he said sharply. My heart was racing as I tried to decide whether or not to interrupt again, the prospect of two no-hits in a lineup making the entire evening seem like a very worthwhile temporal investment. Another twenty seconds slid by. It’d been more than a minute since the guy had spoken.

      
“Are you sure?” Infante said. “No one can see you . . . don’t be afraid.”

      
The man shook his head, though Infante’s urging seemed to fluster him. He took one more look --almost exaggerating the motions of attentiveness --when I finally said, “Seems like that’s a no.”