INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (2 page)

- - - -

      
Arriving home at 2:30 a.m., I barely slept. My small Manhattan apartment was almost completely bare. Besides a battered table and a used mattress lying in a corner on the floor, I had a lamp, a computer, a TV, and a stack of books perpetually waiting for shelves. All night long I thought about Gillian, about Dino, about how not only was I going to keep the case, I was going to win it.

      
And seven hours later, at 9:30 on Sunday morning, I had a plan. Jumping up to pull on a pair of jeans, I decided to do what every good homicide cop or investigator learns to do early --go to the scene of the crime.

      
The G train is the only one of New York’s two dozen or so subway lines that never kisses Manhattan. I’d never even ridden it before, and as the train rumbled to a stop, and as I emerged, blinking into the summer sunlight, picking my way down the trash-strewn streets past vacant lots toward the house where Gillian had spent the night, I thought a lot about how different Gillian’s day would have been without Dino Lombardi and Marty Karopkin.

      
Gillian was still shaken, and her darting eyes and skittishness made talking to her difficult. I tried to be soothing, but the trauma of what she’d been through was just too fresh. Traces of Rodney’s blood were still visible on the sidewalk in front of her building. I got pictures of her injuries and at least part of the crime scene. I interviewed neighbors, talked to Gillian’s friends, and compiled a list of the names and addresses of everyone who’d witnessed or heard that she was being beaten. I began to put together a timeline of who saw what and where everyone was, and just as important, I tried as best I could to get Gillian to understand that what she’d done wasn’t necessarily a crime.

      
And toward the end of day, as the sun cast shadows across the weedy lots and shimmered off the broken bottles and shards of auto glass that littered the streets, for a brief, memorable moment, I felt like a real lawyer.

      
I’d done everything I could think of to do. I was ready to face Eddie

- - - -

      
I couldn’t beat Eddie Mayr into the office. No one could. By 6:45 a.m., the supervisor of our group of lawyers had already clipped and digested the
NewYork Law Journal
, Xeroxed summaries of the day’s most important cases, placed those copies in his famous legal files, distributed them to the mailboxes of every lawyer in his complex, and done whatever other crazy stuff he did during those ungodly hours. As far as I knew, no one had ever seen Eddie walk through the door in the morning, and the actual time of his arrival was a matter of whispered reverential speculation. Because I couldn’t beat him in, I spent the entire ride to Brooklyn figuring the sight lines of the office and wondering whether I could slip past Eddie’s door unnoticed. Maybe, I thought, he’d be psyched, and he’d do the case with me. He’d done homicides in the past, I reminded myself. Or maybe he hadn’t looked too carefully at what each lawyer had done in arraignments Saturday night.

      
Wrong.

      
“
What the fuck?”

      
It was him.

      
I’d been dashing around the corner where Eddie’s office was, hoping to have a moment to compose myself before he took my head off. No chance.

      
“Get in here!” Eddie’s voice was so menacing my whole body twitched. I was busted.

      
“You took a homicide?” Eddie was shaking his head at me. “You took a fucking
homicide
? ” I couldn’t tell if he was furious or disbelieving; he had this smirk on his face that I just couldn’t read.

      
Taking a big breath, I fixed Eddie with a determined look.

      
“Don’t even fucking talk to me,” he barked. “Just go see Marvin.”

      
Marvin Schechter was the head of the Criminal Defense Division for al of Brooklyn. Marvin was Eddie’s boss.

      
“But . . .”

      
“Just go see Marvin.”

      
“Now?”

      
“Now. Go!”

      
“He knows?”

      
Eddie just stared at me as if I’d disappointed him with the stupidity of my question, as if I should’ve figured he couldn’t protect me from a fuck-up of this magnitude. I opened my mouth to say something, but Eddie’s eyes were wide and volcanic. He shook his head slowly and pointed his index finger diagonally upward toward Marvin’s office.
Go take this like a man
I could almost hear him say to me.

      
Being called up to Marvin’s office was bad. It’s not that Schechter was scary or mean, it was just that if Marvin was involved, you’d already gone beyond the bounds of anticipated misbehavior --like a principal’s office, just being sent there was reproof enough. But Marvin Schechter was actually far less terrifying than Eddie. Eddie was a different species from me, and his tyrannical blend of manly disapproval, maniacal intensity, and aloofness was a potent combination I never quite knew how to deal with. Marvin, by contrast, was easy. Marvin was a little, smart, wisecracking Jewish guy who, unlike Eddie, liked to be liked. Eddie just liked to be feared.

      
“Hi, David --he’s expecting you,” Dianne, Marvin’s almost inhumanly lithe secretary, chirped as I appeared at the door to his office. “Go right in.”

      
Marvin was sitting behind his long desk. There was a carpet on the floor --it was perhaps the only place in the whole building where the linoleum wasn’t bare.

      
“So I heard you took a homicide,” Marvin said, looking up and casually motioning me toward a tall chair facing the desk. His voice was noncommittal, the same tone he used for both commendation and condemnation.

      
“I did, Marvin. And I want to keep it,” I said, giving him my most serious stare. “So before you say anything, please just hear me out. I believe I can do this, and I’d really like it if you gave me a chance.”

      
I saw him take a breath, and in that millisecond, I knew he was going to interrupt me and shut me down. So I charged ahead: “I got her out, Marvin!” I said. “I spent al day yesterday at the crime scene. I have photos, got them developed last night.” I held out the packet of photos I’d taken. “I got witnesses --names, addresses, everything --I’ve already talked to them. I’ve done tons of investigation --I’ve met my client’s family and talked to the neighbors. I’ve got a great self-defense claim, and I want her to testify before the grand jury. I know I shouldn’t have taken the case. I know it, and you can yell at me al you want, but, Marvin” --I scrunched up my face to be sure he understood just how serious I was --“I want to keep this case. I can do it. I’ll abide by whatever conditions you put on me --I’ll work with Eddie on it if you want, or anyone else, but I believe in the case, I’ve done the work, and I’m ready. Really. I’m ready.”

      
Marvin’s eyes had narrowed slightly. “You said you got her out?”

      
“Karopkin cut her loose --ROR.” I nodded for emphasis.
 
“I met with her yesterday.”

      
“And you understand why this is an issue?”

      
“Yes, Marvin. It was in the basket --I know I probably shouldn’t have done it. I understand.”

      
“And you’ll work with Eddie on it? It’ll be his officially.”

      
“That’s fine.”

      
“If that’s okay with Eddie, it’s okay with me,” Marvin said. “You’ll keep me posted on what’s happening with it?”

      
“I promise. I will.”

      
“Okay. Go talk to Eddie about it.” Marvin was smiling slightly. “And good work. I know you really want this.”

      
I was stunned; I never really thought he’d give it to me.

      
“I’ll do good, Marvin, really I will.”

      
“Don’t fuck up.”

      
“I won’t. I promise.”

      
“You better not,” Marvin said, his gaze shifting down to whatever he was doing before I walked in. The tips of his fingers made the slightest brushing motion, as if I was an errant fly who’d landed on the wrong slice of pie.

      
“Thanks, Marvin,” I said. “Thanks a lot. I really appreciate it.”

      
He didn’t look up.

      
Sometimes a little rule breaking goes a long way.

- - - -

      
Downstairs, Eddie was waiting.
 

 
     
“He said
what
?” Eddie was disbelieving.
 
“If you’re breaking my balls about this,” Eddie said in his special way, “
I’ll rip your fucking lungs out
--you understand me?”

      
 
“Yes, Eddie.
 
I swear, Marvin said I could do it as long as you worked on it with me.”

      
“Don’t make me regret this,” Eddie said, glowering.
 

      
“I won’t, Eddie.
 
I promise.”

      
Eddie nodded with his chin toward the brown Naugahyde swivel chair next to his desk and composed his face.
 

      
“Okay,” he said soberly.
 
“What’ya got?”

      
I told him, and for the next few exhilarating hours, I got my first tutorial on how to think about a homicide.

- - - -

      
Controlled completely by prosecutors, a grand jury is a venue unusually hostile to defendants and defense lawyers.
 
Unlike a trial, grand jury proceedings are secret --in most cases defense lawyers don’t even know what happened inside until the eve of a trial, and even then they’re only partially informed.
 
Only the prosecutors know who was called to testify, or what they had to say, and though a defendant has the right to testify before a grand jury, it is a right that is exercised sparingly: testifying subjects a client to an almost unlimited cross-examination, with no opportunity for rebuttal.
 
Prosecutors make the rules in the grand jury, and they do so with minimal judicial oversight.

      
 
Still, if the grand jury believes that someone has not committed a crime, they can refuse to hand up an indictment by voting what is known as a “no true bill.” In effect, a no true bill ends the prosecution.
 

      
 
Thus, testifying before the grand jury is a high-risk, high reward strategy.
 
But with Gillian having explained everything on videotape, it wasn’t as if our defense was going to be a surprise.
 
Besides, now was a good time to have her tell her side of the story --it was still fresh in her mind and emotionally resonant, and who knew how she’d come off if we waited two years for a trial?