INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (19 page)

      
“No shit,” one of them said. “Three days for dog tags? Damn, that’s ugly.”

      
“Let’s see if we can find him for you,” Dawkins muttered, typing Michael’s name into the computer.

      
He looked up a second later.

      
“Counselor, you sure he wasn’t second called? ’Cause we don’t have him.” If Michael was “second called,” it would mean that he was still in the custody of the police department rather than corrections (who technically take over as soon as bail is set).

      
“Shit. You sure?”

      
“Oh, yeah --I’m sure,” Dawkins said, shaking his head. “If I was you, I’d check with PD.”

      
Back to the stairs, back through the bars, back past the DOC cells, to the police department’s holding cells, where three cops and two corrections officers were sitting around watching a TV at deafening volume. I started to tell the story again, hoping one of them might be sympathetic, but the cop at the computer just scowled.

      
“Check corrections,” she growled without taking her eyes off the TV or bothering to check the computer.

      
I realized that if I didn’t find Michael soon, he was going to be stuck until the afternoon court session.

      
“He ain’t there. Dawkins is sure of it,” I told her.

      
“Well, that ain’t my problem, is it?”

      
Actually it is, but once again they’ve got the keys to the cells and the printouts and the tracking information. All I had was a sympathetic story, and it didn’t seem as if it was going to get me what I needed.

      
I was stuck and looking utterly defeated, when one of the corrections officers stood up and fixed me with a knowing look.

      
“C’mon, Counselor,” Angela said, “let’s go find your man.” And with that, Angela and I went cell to cell, peering through the bars of the various cages under police department control, calling out Michael’s name. It took us nearly half an hour to find him, and by the time we did, the courtroom upstairs was closed for lunch.

      
Michael was, of course, in police custody.

      
I explained to Michael who I was and why I was there. He was frantic. I was halfway through my short introduction when he exploded.

      
“Please, you’ve gotta get me out of here --I don’t care if I cop out; I don’t care about the fine; I’ll do whatever they want me to, but I’ve been here for days and I can’t take it anymore. Look at me.” He was exasperated, desperate. “I smell, I haven’t shaved, I look horrible, I haven’t eaten anything except bologna and oranges and Kool-Aid for four days. I know I already lost my job; my mother don’t even know where I am.” His hands were balled into fists. “You gotta get me out. I’m
begging
you.”

      
“I will, Michael, I will,” I said, hoping that my certainty would somehow help calm him down. “We’re going back to see a judge --a different judge. This is all going to work out --and soon.”

      
Michael’s face, which had read as confused and angry, now betrayed only despair. “I already lost my job over this,” he repeated. “I’ve been here four days:
what do they want from me
?”

      
I hate being put in the position of trying to justify a monstrous system, and so while I tried to explain, I took pains not to sound in any way apologetic. “Michael,” I said, “you got fucked --plain and simple --you got fucked by a horrible judge and an asshole of a friend who shouldn’t have ignored those tickets. There’s nothing I can do about all the shit you been through already --all I can do is get you the hell out of here as soon as possible, which in this case means about an hour from now. That’s what I can do, and that’s what I
will
do. Okay?”

      
Michael took a big breath, half closed his eyes, swallowed whatever he really wanted to say, and nodded. And an hour later, he was free --as Judge Dawson, with an apologetic nod, dismissed each of the tickets.

- - - -
 

      
“
ALVAREZ
.”

      
“Here!”

      
“
JONES
,
Tynesha
.
Tynesha JONES
.”

      
“Me!”

      
“
MENDEZ
,
Pablo
,
Pablo MENDEZ
.”

      
“Si.”

      
The court officer with the megaphone continues to call out names. It’s twenty-two minutes before 1:00, and if I don’t get to a courtroom fast, I’ll never get another case done before lunch. Veering away from the metallic shriek of the bullhorn and the listless crowds near the summons part, I turn right, down an escalator, heading toward the tiny courtroom where kindly Judge Robert Cohen presides.

      
Judge Cohen is thin and slightly stooped, with a sallow complexion and sharp features that light up when he speaks. Near the age of mandatory retirement, Cohen has long, frail fingers and a thin thatch of hair, but unlike almost everyone else in the Bronx, he is always smiling. Cohen is the kindest, most decent jurist I have ever come across. He is the model of what a judge should be. Cohen is so thin that he is almost swallowed up by the bench from which he presides; still, his voice is strong and clear, and he waves his hands liberally while complimenting everyone who comes before him. For Cohen, every plea seems to involve the admirable efforts of the defense lawyer and the commendable cooperation of the district attorney’s office. Under his smiling gaze even routine events become opportunities to congratulate, praise, and approve of the work done in his court. Cohen’s thanks is so unstinting and so genuine that lawyers, clients, and even prosecutors (who think he’s too pro defense) wind up leaving his part with a warm glow. Stepping into his courtroom feels like a holiday from the rest of the building --an oasis of peace on a continent of fractiousness.

      
“Ooooh, Mr. Feige,” Cohen erupts as I walk through the doors at twenty minutes to one. “So nice to see you, sir.”

      
“Thank you, Your Honor.”

      
Judge Cohen presided over the very first murder case I ever handled in the Bronx (a shooting outside a battered woman’s shelter caught on videotape). He also handled one of the strangest trials I ever did. It was a long-term drug operation in which my client (alleged to be the seller) was tried in absentia despite being incarcerated. Basically, he refused to talk to me, to come to court, or to participate in any way in his own defense. By the time he was acquitted I hadn’t seen him in weeks. I never heard from him after the verdict and never saw him again.

      
I’m stopping by the part because I need to look at a letter that a dissatisfied client of mine wrote to the judge. I’d taken the case as a special favor --the fifth attorney for a guy facing a mandatory life sentence for a series of robberies --and though things seemed to go well at first, they deteriorated rapidly. My client resolutely refused to recognize the indictment as having the force of law and rejected the authority of the court. He insisted that I was failing to understand that he, as a Freemason, was not subject to the laws of the state of New York (which, additionally, he believed didn’t exist).

      
I’ve had clients like this several times, but there was something even stranger and more insistent about this one, and after a lot of soul-searching and many metaphysical conversations with colleagues, I decided to have him evaluated for competency to stand trial. He was found unfit to proceed and was transferred to a psychiatric / prison hospital to be stabilized. He never forgave me for believing him to be crazy. He and his family wrote angry letters denouncing my work on his behalf. He refused to talk to me, and in short order our working relationship eroded past the point of no return. Then he sent a letter to the judge.

      
Handing me a copy of the letter, Evelyn, Judge Cohen’s trusted clerk, smiles kindly.

      
“Don’t worry about this,” she says. “Thanks for trying.”

      
“Oh, yes, Mr. Feige,” the judge chimes in from above. “You were wonderful, and he was lucky to have you --please don’t be upset in the slightest. I’ve found him new counsel, and he’ll be fine.”

      
“Thanks, Judge,” I say, smiling.

      
Down the hall, inside the trial assignment part known as TAP-1, Judge Darcel Clark is dispensing justice at a rapid clip. Every available trial judge is already busy, so her job for the rest of the day is to adjourn cases, push pleas, and survive her calendar. There are more than seventy-five cases on it, and even though it is nearing lunchtime, her courtroom is packed. At least a dozen lawyers are waiting to get their cases called, some sitting on the cramped benches in the front row, others milling around or wandering in and out. It takes all of one look to realize that I am never going to get anything called in there by lunchtime. And so, with an apologetic nod to my client, I retreat, heading across the hall to the overflow arraignment part, hoping to catch Cassandra. It’s closed.

      
Next, I consider running upstairs to the domestic violence part --but by the time I get there, it’s likely to be closed as well.

      
I really shouldn’t have taken the time to see Reginald.

      
Heading back up the escalators, I take a mental inventory of what I’ve done, Clarence, Reginald, Alberto, and also what I have left to do, Najid, Cassandra, Hector, and Jaron.

      
Upstairs, on the mezzanine, the court officer with the bullhorn is still making a racket. It’s still a few minutes before one, and if I leave now, I can just beat the lunchtime rush of frustrated defendants and impatient lawyers. Heading out through the revolving doors into the cold wind whipping down 161st Street, I drop my chin, shove my hands deep into the pockets of my winter jacket, and, trying hard to enjoy the dull winter light, trudge back toward the office.

E i g h t

12:53 P.M.

      
Upstairs, back in my office, I dump Clarence, Alberto, and Reginald’s documents --each in a heavy red accordion file --in a stack on my desk. I’m tired and hungry, and I don’t have the patience to update them in our case-tracking system just now. Besides, my phone is chock-full of messages.

      
Whenever I don’t finish up by lunch there are calls from clients who spent their morning waiting in criminal court. They range from the patient to the abusive. I don’t resent them --I’d be leaving irate messages too if I sat in criminal court for three hours expecting to see a lawyer who never showed up.

      
Scrolling through my messages, I carefully jot down the names and numbers of the mothers, uncles, and girlfriends calling me on behalf of their locked-up loved ones. Dealing with a client through a family member is always slightly touchy --technically, client confidences are only totally secure so long as they remain undiscussed with others, but keeping a client’s family in the loop is important too, so I spend a lot of time figuring out who it’s safe to talk to. Really knowing a client’s family can help the client as well as the case. It is an easy way to communicate certain information, particularly with incarcerated inmates --and when it’s time for a client to take a deep breath and commit himself to a prison term, having a wife or girlfriend or family member on board with the plea and able to promise that they’ll wait makes the deal go down easier. Such things also give a client a future to focus on and a reason to hope --invaluable commodities when facing the misery of prolonged incarceration.

      
I have too many courtrooms left to cover and very possibly not enough time. To make it everywhere I have to be this afternoon, I should probably be back in court as soon as it opens. And that means lunching at light speed. It looks as though it’s going to be a gas station day.

      
If anything might have converted me to the big-firm life, it was the food. There were few things I loved as much as sitting down to a lavish meal I didn’t have to pay for --the daily perusal of menus that included braised short ribs or delicately poached fish --and if I’ve paid a price for doing the work that I love, it’s a ransom denominated in the currency of culinary pleasure. Up near Supreme Court there is a Burger King and the Courthouse Deli --a vestige of a time when the Grand Concourse really was grand and the streets around 161st bustled with Jews --which offers good matzo ball soup and decent pastrami. Inside the deli, judges, court officers, ADAs, and defense lawyers are all jammed together, mirroring the composition of the courthouse just across the street. But by lunchtime the last thing I want to see is more judges, DAs, and court officers, so it’s a place I rarely go. Across the concourse from the Courthouse Deli is a food court where the aggressively obese can choose from various fast-fried flavors: Arthur Treachers, Taco Bell, the always crowded McDonald’s. Finally, down a bit farther, near my office, is the dirty sandwich deli / bodega --the sort of place that offers up a prayer every day that the health department hasn’t come around. I eat at the dirty deli at least once a week. It’s convenient on harried days and easy on a public defender’s salary.

      
It hasn’t always been quite this bad. For years, I got daily takeout from a tiny Jamaican place. Known as the Feeding Tree, it had all of one table and two metal chairs. Reggae music bounced around the counter while Tony cooked in the back and Janice held court up front. But they demolished the Feeding Tree to make room for a new, even larger criminal courthouse, which is in the process of being built just down the street from the current one. And so now, on a good day, when I don’t endure the dirty deli, the British Petroleum station is as good as it gets. The gasoline fumes aren’t too bad, and other than the Courthouse Deli, it’s the only place around to get a salad.

      
Most days I have lunch with Robin. She is my confidante, my boss, and the best public defender I’ve ever known. We were close even before we moved to the Bronx, and when she won the contract with New York City to start the Bronx Defenders, I was one of the first lawyers she hired. Robin has both striking beauty and spectacular trial instincts, and in court we make a strange but effective team: my strength is attacking; hers is understanding. Robin has an unnerving way of knowing what everyone in a room is feeling at any given moment --as if she is privy to a TV signal (the Feelings Channel, probably) that no one else is receiving. This gift makes her a great leader and a subtle crossexaminer. It also informs every aspect of the way she practices law.

- - - -
 

      
People do public defender work for all kinds of reasons: some resent or fear the power of the government; others believe in the process and could actually either prosecute or defend; and then there are client-centered defenders like Robin who are motivated by genuine empathy and a deep belief in the goodness of people. It is no surprise, then, that the public defender office she established would pioneer “holistic” representation --an approach that focuses on the general needs of the client rather than on the specific dictates of a criminal case. It was Robin who believed that a great public defender office should include a civil action project to help with housing and benefits questions, an immigration attorney to help ensure a client doesn’t get deported, a family court unit that tries to keep families intact, and even a community organizer devoted to empowering client communities.

      
Robin’s uncanny sense of what is going on in someone else’s head is tremendously practical too. Trying to suss out what a client is really trying to say is one of the most daunting parts of my job. There have been a number of times when a client was trying to tell me something that for some reason I just couldn’t hear. This happened most dramatically not too long ago, with a sixty-two-year-old man who found himself charged with shooting his neighborhood coffee-cart guy in the head.

      
I took an immediate liking to Edward, with his graying Black Power Afro; thick, studious glasses; and respectful, deliberate speech. According to the district attorney’s office, despite living a spotless life for more than half a century, Edward decided out of the blue one morning to shoot a random guy in the head and then sit down in the street and wait to be arrested.

      
That was not Edward’s explanation at all.

      
Looking earnest, if a bit befuddled, he explained that he’d been about to get a cup of coffee when he heard the shots and stumbled into the fracas that followed. He lay in the middle of the street because he knew he was slow and figured that was probably the safest way to take cover. Taking into consideration the weirdness of the case, the fact that the bullet had essentially bounced off the man’s skull (causing minimal physical damage), and Edward’s five decades of a law-abiding life, the DA offered Edward a plea to three and a half years in state prison.

      
He turned it down, insisting on his innocence.

      
I fought his case for a year and a half, searching in vain for some reason that would explain the case or the crime. I found nothing. Time and time again I was drawn back to the scene of the crime --right near a welfare building across from Crotona Park --hoping that I’d find something, see something, make sense of the nonsensical.

      
Edward’s case was pending in front of Moge --and he couldn’t figure it out either. “Look, Dave, it’s why we have trials,” he told me during one of our many conferences about the case. And after a few more months of confusion, I was inclined to agree.

      
With nothing left to do, it was time to pick a jury.

      
“When can you be ready?” Moge wanted to know.

      
“Let’s do it next week,” I said.

      
“Fine,” said Moge, and then, turning to Edward, “This is pretty much your last chance to take a plea, sir.”

      
Edward, whose stoic reserve was almost unfathomable, looked up at Mogulescu and said, with utter calm: “Okay. What do I get?”

      
I couldn’t have been more stunned. Edward was a dignified, quiet man who addressed me with incredible respect and calm reserve. He’d never said anything other than that he was innocent. Simple, direct questioning and thoughtful nodding marked our conversations as he processed whatever I told him. Edward was clearly smart --always reading serious books and chatting amiably with me about them in the client interview room in the jail. His guilt seemed so out of the question that I hadn’t even really engaged in any plea-bargaining.

      
“Ahhhh, can I have a few minutes with my client?” I asked the judge, not sure I’d heard right.

      
“Of course,” said Moge as they led Edward back upstairs to the cells.

      
Upstairs it was clear to me I’d heard wrong.

      
“I want to go to trial,” Edward told me quietly and firmly as we sat down together in the client interview room. “I know you believe in me,” he said, “and I trust you.”

      
“You got it,” I told him. “We’ll start picking a jury next week.”

      
“Okay!” he said, smiling. “I’ll see you then.”

      
I couldn’t sleep that night. All my public defender instincts were telling me that something was dreadfully wrong --an innocent guy that calm doesn’t just panic and offer to take whatever the judge is going to give him. Something was wrong, but I couldn’t figure out what.

      
It was exactly the kind of situation that Robin is good for.

      
“Rob, I want you to come talk to Edward with me,” I said the next morning. “I need your read on this.”

      
“Sure, babe,” she said. “Let’s go.”

      
As we threaded our way through the lower mezzanine of criminal court, I filled Robin in on what had happened the day before. “It was like, just for a second there, he wanted to fold --it was like this little glimmer of total capitulation, but by the time we got upstairs, he was back to trial only. I just don’t get it.”

      
“Weird,” Robin said as we walked into the interview room. “Let me talk to him --alone, please.”

      
I introduced them and left.

      
“He needs to take a plea, sweetie,” Robin said when she came to get me ten minutes later. “He’s guilty, and he wants to get out of the case.”

      
I couldn’t have been more stunned.

      
“It took me about thirty seconds to figure it out,” she said. “He was old and depressed; he’d been cut off from disability and was afraid he’d be evicted. I don’t know whether he was thinking about robbing the guy or what, but when he pulled out the gun, he was so nervous and shaking the thing just went off. He was so freaked out, he just sat down in the street and waited for the cops to come. What I couldn’t figure out was why he’d been hanging in there so long, and then I realized it had to be you. As soon as I said to him that I’d known you a long time and that you’d love him no matter what he did, he just started crying. He was too embarrassed by what he’d done --he felt like you’d been fighting so hard you’d be disillusioned if he turned around and told you. He kind of thinks his life is over anyway, and he didn’t want to go die in prison having let you down too.”

      
I was speechless. We were two days from a trial. I had been so convinced of his innocence that I hadn’t tried to work out a plea deal for months. And now it might be too late --and all because I liked Edward so much that I utterly failed to understand the potential pathology of what was going on between us; it was the dark side of my self-important crusading and toughguy posturing. Having him believe in me that much had fulfilled something I’d set out to be as a public defender, but it had also had disastrous consequences for the very person I was hoping to help, shelter, and protect.