INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (22 page)

      
“Naw, Dad, let me see it. Please.”

      
Luther can be hard to resist. And so, digging deep into the closet, I found a sharp charcoal pinstripe from my summer as a big-firm lawyer --Hugo Boss from the Barney’s warehouse sale. Luther slipped it on and almost disappeared. Luther is tall, muscular, and very handsome, but he’s narrow, and although the suit fit perfectly in the arms and shoulders, it was clearly meant for someone quite a bit stouter.

      
“No way, Lu,” I said.

      
But it was too late. Luther was already straightening his tie and preening for the mirror.

      
“It’s perfect, Dad,” he said, grinning.

      
“Luther, it’s huge!”

      
“Naw, Dad, it’s sweet,” he said, smoothing his lapels.

      
“I’m telling you, Lu, there is no way Victoria’s Secret is going to hire you in that thing.”

      
“Definitely, Dad, definitely,” Luther insisted.

      
“All right,” I said. “If you insist. Call me and let me know how it goes.”

      
Luther gave me his megawatt grin. “All right, Dad. Thanks.”

      
I didn’t hear from Luther for nearly three weeks. And when I finally saw him again in court, in my old suit, I couldn’t help prodding him just a little.

      
“I guess you didn’t get the job, huh?” I asked him.

      
“Naw, Dad,” he said as the clerk called our case.

      
“Well, at least you learned to dress up for court,” I said as we stepped up.

      
“Good morning, Mr. Feige,” the judge said as I reached the defense table.

      
“Good morning, Your Honor.”

      
“Nice suit,” he said to Luther.

- - - -
 

      
As I head back through the reception area, Lorraine is juggling calls, and the couches are packed with people waiting to see their lawyers. In a corner, Lillian is still sorting her papers. Lorraine glances up just long enough to give me a smile.

      
“Gary needs to see you,” she reminds me gently as I push through the door, nod to the kid in the gang colors hanging out just outside, and make my way back toward criminal court.

      
“Gary
always
needs to see me,” I call back just before the door slips shut behind me.

N i n e

2:30 P.M.

      
Up the street, just past the welfare building, I spy the line for the courthouse. It is the interminable waiting, as much as anything else, that grinds people down. It’s one of the reasons the courthouse is tense, the people volatile --even why innocent people plead guilty. Indeed, once you understand how the system really works, how it wears people down, how high the frictional costs of fighting a criminal case really are, the guilty pleas of the innocent are not only predictable, but also seem a natural product of the way the system is designed. Even without the threat of jail, copping out isn’t an irrational choice.

      
Imagine for a moment being arrested. Assume you’ll get special treatment, a speedy arraignment, and a quick release. Your lawyer will assure you that you’re free from the most onerous threat in criminal prosecution: jail time.

      
Let’s say you jump a turnstile. The token you put in gets jammed and the turnstile won’t rotate, so, late for work and already having paid the fare, you hop over. A cop, just on the other side, pushes you up against the wall and cuffs you. You beg him to just go examine the turnstile, but he tells you to shut up and marches you to the small holding room where you wait while he arrests another half a dozen people.

      
You go through the system, and at arraignments, the prosecutor offers you a plea: to “trespass as a violation” --more like a traffic ticket than a crime. Pleading guilty won’t result in a criminal record, but to get the deal you’ll have to do a day of community service. You refuse --after all, you’re innocent --you actually
did
pay the fare. Your case is adjourned for several weeks. You are released without bail.

      
Five weeks later, you take a day off of work to return to court. After waiting on line for an hour or so, you clear the metal detectors and find the courtroom where your case will be heard. It is crowded, and the long wooden benches are filled with people looking nervously at one another or staring downward, scrupulously avoiding eye contact. For the next two hours, you sit and wait as case after case goes before the judge. You have not yet seen your lawyer. You are not allowed to read.

      
Just around noon, your public defender rushes in, calling your name as he shuffles through a stack of thin yellow legal sized files. “Hold on for just a second,” he says while he heads to the front of the courtroom to write something on a clipboard and chat with some of the prosecutors in the room. Another half hour passes. Next to you an elderly black man with thick glasses is trying to surreptitiously read a newspaper. He keeps it low --well below the lip of the bench, folded tightly into a tiny square --and he gets away with this for nearly an hour before a court officer barks at him, and rather than face expulsion, he abandons the paper. Your lawyer finally calls your name and motions to you to come outside the courtroom.

      
Apologizing for the delays, he explains the good news: the prosecutors will once again offer you the trespass violation, which will spare you a criminal record. All you have to do is perform that one day of community service. Once again you explain that because you put the token in, you never intended to defraud the system --it’s just that the turnstile was broken. He listens patiently, nodding understandingly. He’s a nice guy and doesn’t want to pressure you into pleading guilty to anything you didn’t do. Still, he explains, it’s a tough defense --your word against the cops --and generally, since this is such a minor crime, you won’t even get a jury trial, just a cynical judge who usually believes the police. Also, you need to know that if you lose, you’ll be saddled with a criminal record. You won’t go to jail or anything --most likely it’d just be a fine or a few days of community service --but that criminal conviction will be on your permanent record forever.

      
It’s late, and the courtroom is still packed. Your lawyer tells you to think about what you want to do. Also, he warns, the system is slow. If you want to fight the case, you’ll have to be patient. It looks as if your case isn’t going to be heard until after lunch, so he advises you to come back around 2:15, about an hour and a half from now.

      
Since it’s the Bronx, you don’t really want to wander too far from the courthouse, so your food options are pretty much confined to the food court in the grimy shopping center across the street. Everything available is fried.

      
Another half hour in line just to get back in through the metal detectors, a little more weaving through the crowds, and at 2:15 you’re back in the courtroom. Around 2:30 your lawyer appears, and after you explain that you did nothing wrong and want to fight the case, he tells you that the next stage is to file a motion to dismiss the charges. It won’t be successful, he explains, but he’ll do it anyway.

      
It’s been six hours since you first got in the line to come into the courthouse, and finally, your case is called.

      
“Number eighty-seven on the calendar, 2004BX100001,” says the court officer standing in the front of the room. “
People versus
” --and here you hear your own name --“charged with 165.15.”

      
Your lawyer strides confidently up to the well of the courtroom, motioning you to follow. As you tentatively walk up to stand beside him, you hear your lawyer and the assistant district attorney say their names. The court reporter’s hands are moving, taking down every word.

      
“Ahhh. 140.05 and two days’ community service,” says the assistant DA.

      
“No disposition. Motion schedule, please,” your lawyer replies.

      
“Okay. File them in three weeks. Come back May sixteenth,” says the judge.

      
And that’s it. The whole proceeding took about twenty seconds.

      
“Wait for me,” your lawyer tells you as they call the next case. You watch as he stands up there and does this same type of thing for four or five more people. Six or seven minutes later, he again calls you outside, handing you a little blue slip of paper with the next court date scribbled on it.

      
“I’ll see you on the sixteenth,” he says, “when we get the decision denying our motions.” And then, handing you another card, just in case, he asks if you have any other questions, shakes your hand warmly, and together the two of you join the steady stream of people leaving the courthouse.

      
Six weeks later, your new court date arrives. You take another day off work, brave the commute to the Bronx, and once again go through the ritual of a court appearance --the hour in line, three more in the courtroom unable to read, work, or talk, sitting silently as the litany of cases blurs into the monotonous thrum of anonymous criminality. This time, you’re done by lunch. The prosecutor didn’t file the response to your lawyer’s motion on time, so the case is adjourned for decision. Another court date, another blue slip, three more weeks of worry.

      
Three weeks later, another day off of work, another six hours, and this time you can’t find your lawyer. Someone from his office comes in around 3:00 p.m. and explains that he’s in the middle of a murder trial. The new guy asks if you want to plead to the trespass violation, which would spare you a criminal record --it’d only be one day of community service, and you could arrange to do it on the weekend. You explain that you didn’t commit the crime, and you really want to fight the case --couldn’t he just get you a trial? “That’s a long way off,” he says, smiling.

      
Around 3:30, your case is called. The judge hands both lawyers a decision denying the defense motions but granting a hearing on a statement you allegedly made: “I jumped over it because it was broken.”

      
Outside, you explain to the substitute lawyer that the statement is true but not complete --“I actually said, ‘because it ate my token,’ ” you insist.

      
“Well, the cop says that this is what you said. Most judges will probably see it as a confession, which is why they want to introduce it into evidence,” the lawyer explains. “The good news is that we’ll have a chance to try to suppress it at a hearing --we won’t win, but we’ll get some good discovery. If you have any other questions, give your lawyer a call.” He smiles.

      
A month later, as you sit in court again, you start to get frustrated. You’ve burned another day of vacation, wasted a ton of time, and here you are waiting --again. This time, your lawyer arrives early.

      
“Sorry about last time. I was on trial over in Supreme Court,” he explains, looking a little harried.

      
“Look,” you say, “I really want to get this over with.”

      
“I know,” he says kindly, “but I told you, the system is slow and you have to be patient. Let’s see what happens today.” He sounds encouraging. “C’mon, I’ll be sure to get you out by lunch today.”

      
Slightly reassured, you go back into the courtroom to wait. And sitting there, forbidden to do anything useful with your time, you realize you have begun to recognize people --the prosecutors, all young, digging through their cardboard boxes of files; the court reporter typing silently on her strange little square of a machine; the court officers roughly leading prisoners into and out of court from the steel side door; and, of course, the judge, beleaguered, impatient, and brusque.

      
It’s your turn again.

      
At least this time when you see the judge, it’s more than forty-five seconds --maybe a whole minute and a half.

      
“Why can’t we get rid of this?” the judge asks. “How about a straight CD?” Your lawyer leans over to you, explaining that what the judge means is that if you’ll plead guilty to the trespass, he’ll persuade the DA’s office to drop the community service requirement. You’ll just promise the judge that you’ll stay out of trouble for a year; it’ll be no fine, no jail --just like unsupervised probation.

      
Standing there, before the judge, you find yourself actually considering it. You’re tired. It’s been too long, too much for a stupid case like this. “It won’t be a criminal conviction?” you ask.

      
“No,” your lawyer says, “just like I explained it to you. It’s more like a traffic ticket.”

      
“But I’m still pleading guilty, right?”

      
“Yes,” he says, “to the violation of trespass. It’s not a crime, and technically the record is sealed, but there will be a record of it as a noncriminal conviction accessible by the police, prosecutors, and others.” (It used to be that these records were considered sealed, but in the past few years, with the advent of ever-better computers, whenever a high-profile case hits the papers, these sorts of noncriminal convictions always seem to pop up, suggesting that the police department doesn’t really see “sealed” in the same way you or I might.)

      
This is right about the time that most people just go ahead and plead. Guilty or not, they’re exhausted and frustrated, and want the whole thing over with. And so innocent people --people just like you --wind up pleading to a trespass violation, or to disorderly conduct. But somehow, standing there before the judge, you summon up an uncharacteristic well of resolve.

      
“I’m not pleading guilty. I’m fighting this case,” you tell your lawyer.

      
“No thanks, Judge,” is all he says to the court.

      
“Fine. Get him the discovery, People.”

      
“Yes, Judge,” the bored-looking ADA says.

      
Outside the courtroom, you get another blue slip and another court date.

      
Next time you get another.

      
And the next time, another. You’ve used a third of your vacation time for the year, and there is no trial date in sight. Downstairs in the trial assignment part, you’re discouraged to find that most of the people have been waiting for trials far longer than you have --many of them two years or more. For all of them, and for you, the same excuses: the district attorney isn’t ready, your lawyer is on vacation. So again and again it’s the trip to the courthouse, the scanning and searching, the halls full of crying, angry people, a day of waiting, a minute or maybe two with the judge, and another blue slip with still another court date.