INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (24 page)

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And that’s how it goes. Day in and day out, the rage and frustration, the volume and delay, grinding people down until the only plausible option for most is to opt out of the system entirely. That’s the goal, of course: realistically, the system can only try one of every hundred cases, which means there has to be a way to make the other ninety-nine cop out. When arrest rates for minor infractions are as high as they are (in the Bronx alone, there are more than fifty thousand misdemeanor arrests a year, and citywide that figure has been as high as a quarter of a million --almost all of them tiny infractions like trespassing, train hopping, disorderly conduct, or possession of marijuana), the system
must
be rigged to coerce pleas. Judges know this. Everyone knows this. When the NYPD makes 62,691 marijuana arrests in a single year, there can’t possibly be enough judges, public defenders, and courtrooms to create a just hearing-and-trial system. The only alternative is to make exercising your rights functionally impossible.

      
Of course, the people like you --those pleading guilty to the noncriminal offenses --have it easy. As frustrating as the waiting is, it does not begin to compare with the experiences of those who are actually in jail --the more than fifteen thousand New York City residents (many of whom are incarcerated on misdemeanor charges) who on any given day are not perched on the benches where you sat, but are instead sitting in the steel cages just behind the scarred metal door at the other end of every courtroom, waiting, in jail, for their turn in court.

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I have four things left to do --four courtrooms left to visit before the day shift is done. And so, after jumping the line, passing through the metal detectors, and loping down the escalator, I’m once again juggling the probabilities and wait times, hoping that I can see everyone who needs to be seen and do everything each of them needs me to do. Cassandra’s case is to my right, Najid is to the left, Hector waits in AP-10 on the third floor, and just below that is Jaron and his drug felony.

      
Time to get to work.

T e n

2:37 P.M.

      
Tap-1 is always packed, so I figure I’ll go there first, sign in Najid’s case, and then try to sneak over to either the arraignment part to get Cassandra out or up to AP-10. As I approach TAP-1 it’s easy to spot Najid. He’s outside the courtroom in a huge, puffy lime-green down jacket. With his shaved head and expressive face, he looks like Gandhi at a fruit-themed costume party.

      
A charming, impish man, Najid holds an advanced degree and an enthusiasm more befitting someone about half his age. A tiny, wiry Persian with dancing eyes and a perpetual grin, he is well known as a green-space activist in the South Bronx, where he transubstantiates weedy abandoned lots into green oases of community commitment. Along with a ragtag crew mostly composed of recent college graduates, Najid runs the More Gardens! Coalition.

      
Najid doesn’t actually live in the Bronx --he has a small apartment in the East Village, which is often used by some of the vaguely itinerant activists who pass through his organization. Older than the bulk of his group, Najid is a kindly leader whose calm and purpose seem to animate the younger tattooed or pierced kids who come to keep the Bronx green.

      
The former headquarters of the More Gardens! Coalition was less than a block from our office, in a beautiful flowering garden presided over by a huge bright-yellow sunflower sculpture and a small cinder-block casita where Najid led classes for local elementary school kids, teaching them about seeds and vegetables and gardening. One rainy fall morning, the city bulldozed the casita and plowed under the garden. Najid had known that this might be happening. Though he’d helped to negotiate a large citywide agreement on the preservation of certain community gardens, he’d lost several battles over specific gardens near our office. For weeks there had been rumors about the destruction of the garden with the casita in it, but as the days passed without a bulldozer in sight, it seemed less and less likely that the city would actually destroy one of the more charming green spaces in the South Bronx.

      
But they did. Looking to make room for some housing they’d long been planning --two family homes that would sell for several hundred thousand dollars --the city had quietly decided that the garden had to go. The fact that there were seven large vacant lots within a block of the casita seemed to have no impact on the decision.

      
With negotiations at a delicate stage, and a creeping sense that the city and the developer might not be playing completely straight about their plans for the little garden, Najid often slept in the casita, hoping he wouldn’t wake to the sounds of the police or heavy machinery. But when he did, he was ready. Quickly climbing to the roof, he managed to send out a cell phone distress call just before chaining himself into a specially prepared cinderblock cylinder, in what is known in civil disobedience circles as a “sleeping dragon.”

      
A sleeping dragon is a length of steel pipe with a rod welded into the center. A spring clip attaches the protester’s hands to the rod in the center, making it nearly impossible to remove his or her arms without breaking them. Usually the police are forced to carefully cut through the steel pipe at the point of the weld in order to unclip the hands and remove the arms. In Najid’s case, the sleeping dragon was actually built into a cement portion of the roof of the casita, so that the police would have to cut away the concrete flute as well.

      
Unfortunately, when I pulled up that morning --just after 9:00 a.m. --that was exactly what they were doing. A huge crowd stood across the street, held back by fifteen or twenty policemen.

      
“Save our gardens!” the crowd chanted in the rain.

      
“Fuck your gardens,” one of the patrol cops muttered, pissed off at being stuck doing crowd control in the cold rain.

      
I walked up to the nearest captain, introduced myself, and explained that they had my client up on the roof --I’d done some work for the coalition in the past and had agreed to be Najid’s lawyer if anything like this ever happened.

      
“Well, Counselor,” said the captain, his voice making it clear that in his view Najid might as well have been a serial killer, “your
client
is about to get himself arrested.”

      
“Right,” I said. “That’s exactly why I’d like to talk to him.”

      
From the captain’s face it seemed that the only life-form lower than that of a protester was that of a protester’s lawyer.

      
“Not ’til we get him to the station,” the captain said curtly.

      
“Actually, I’d like to talk to him now, please,” I said. “He’s unarmed and alone up there, surrounded by a dozen armed men. I won’t be interfering; I’d just like to go speak to my client as I have a right to do.”

      
The captain seemed to consider this for a moment, and then, waving over a nearby patrolman, he hitched a thumb at me. “Make sure the counselor here stays across the street, would ya? I don’t want him around here.”

      
“Sure, Cap,” the patrolman --a thick guy with an Irish name --said with evident satisfaction, and then to me: “Let’s go, Counselor.”

      
Right or wrong on the law, they had the guns. I went.

      
For nearly six hours Najid held off the combined forces of the New York City Police Department. Police choppers hovered overhead, dozens of officers cordoned off the area, and two television stations shot footage of the tiny lone man chained to the roof of the little casita. All the while, community members continued chanting. “Save our gardens! Keep the Bronx green!” I found out later that the officers up on the roof were doing everything they could to break Najid. They’d crowd around him, pushing and shoving, threatening to break his arms and discussing at length all the things they were going to charge him with and the many years he could spend in jail. Several of them heaped insult and obscenity on him. Throughout it all, as they shouted into his face, Najid would smile gently and say to them, “Officers, I respect you greatly, and I know that you are good people. Be professional. Do your job. I am not going to let go, and I’m not going to come out. So do what you have to do, as professionals, and what happens to me will happen to me.”

      
Watching the drama unfold, I was surprised at my own reaction. There was little question in my mind that Najid was engaged in one of the most heroic acts I’d ever seen. He had a quiet dignity that was almost incomprehensible to me. And with the drizzle, the thrumming of the choppers, and the militaristic block-long lockdown, the whole scene felt strangely cinematic. I was deeply moved by Najid and his conviction --and at the ability of one person to slow down the massive machine of the state.

      
Yet I was almost equally moved by the fact that the police didn’t break his arms. There are few things that more clearly reveal the knife edge of oppression lurking behind our everyday life than what happens to someone who really resists the steamroller. Somehow, the fact that our society would spend the time, material, and money on a guy who was flamboyantly breaking the law made me love this country profoundly. And the more I watched, as for six hours they pounded and hacksawed away at little Najid and his sleeping dragon, the more impressed I was with our collective tolerance for dissent.

      
When they finally freed him, when Najid finally stood up, placing his hands demurely behind his back as they cuffed him and marched him down off the roof, a faint smile discernible through the tired lines etched on his face, a little cheer went up from the damp crowd across the street --an acknowledgment that even though, in the final analysis, none of us may be able to stop the colossus, we can all do a lot more than we imagine ourselves capable of.

      
The Bronx DA saw no romance whatsoever in resistance to authority. Najid was charged with resisting arrest, disorderly conduct, and obstructing governmental administration. Given the flagrant violation of the law, I’d have agreed to a plea if they’d allowed him to do some community service for More Gardens! or for another progressive not-for-profit, but they wouldn’t consider such a proposal. As a result, we’d been fighting his case for well over a year.

      
Giving Najid a little hug, I apologize for being late and poke my head inside the courtroom to gauge the line.

      
The place is a zoo.

      
I sign up the case, scrawling my name and his on the worn clipboard dangling from the courtroom wall. A quick scan of the sign-in sheet makes clear that there are already more than a dozen cases waiting to be called, and that means that I have at least thirty-five minutes to trek to another courtroom and try to get something else done. I apologize to Najid again and tell him to wait --probably for the hundredth time during the pendency of his case.

      
“Of course,” he says, smiling gently, “don’t worry about it.”

      
I do worry, though --in fact I often wonder whether fighting the court case is more trying for him than staging the protest was. For him, a day spent in court is a day diverted from the Bronx community, and we’re going on fifteen days wasted.

      
Ducking across the hall, I peek into AR-2, thinking that if it is empty, I can spring Cassandra right away. It’s packed as well. Judging from the box of court papers, it looks as if Judge Birnbaum will be working until late in the afternoon. I’ve got a half hour, two impossible courtrooms, and two more left to try, the narcotics part and AP-10 --the domestic violence part.

      
The main elevators in criminal court are constantly overcrowded and so astonishingly slow that it can take fifteen minutes to go ten vertical feet. The stairways are for fire use only and don’t open onto the proper floors anyway, and so, as I often do, I cut through the back of an empty courtroom to stow away on the judge’s elevator.

      
Upstairs, AP-10 handles exclusively low-level domestic violence and sex cases. It is one of my least-favorite places in criminal court. Measured on an hourly basis, more injustice is perpetuated in AP-10 than in any other place in the criminal courthouse. AP-10 showcases what pissed-off people do to one another after having had the misfortune of having sex: slapping, punching, phone breaking, and decorating the neighborhood with posters such as:

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W A N T E D :

For Child Support

Kareem Williams.

Last seen fucking some whore bitch he pick up.

Like all deadbeat he think he some kind of pimp daddy.
 
He lives off people. And when he get a dollar, he act like he is God.
  
That’s how you can tell he a asshole, not use to shit.

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Because it is accessible only by those vaguely functioning elevators, AP-10 is inconvenient for most lawyers and clients --but it is even worse for incarcerated clients (and there are many of them in that part). Because there are no jail cells on the third floor, jailed defendants almost never get to see their lawyers until they are marched, manacled, into court.

      
If there is a lesson to AP-10, it is that the absurdly blunt instrument of criminal prosecution is just not up to the task of unraveling the complicated motives and pathological interpersonal dynamics of vindictive people and screwed-up relationships. Every day, AP-10 hosts a parade of people using protective orders as weapons in child custody battles or property disputes, making false allegations against ex-lovers or their new partners, or blackmailing a current lover into being faithful or forking over money. And though there are plenty of real victims and legitimate cases, overall AP-10 is a viper pit of spurious allegations and twisted motivations. In such an environment, calm, reasonable prosecutors and insightful, deliberate judges might be able to competently sift through twisted facts and outrageous allegations. Unfortunately, though, both the assistant district attorneys who populate the part and most of the judges who sit in judgment of the cases see themselves as the saviors of battered women and abused children. While understandable, this savior complex makes an already bad situation far worse, particularly in cases with reluctant complainants or sparse facts. Just as politics makes it nearly impossible for all but the bravest judges to grant reasonable bail, the politics of domestic violence make AP-10 a supercharged and dangerous place to be for victims (particularly those who may want to patch up their relationships) and defendants who are often actually innocent.