INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (25 page)

      
This was something Ron learned the hard way.

      
On his way to a job interview one summer morning, Ron was arrested and charged with groping a girl. The girl had been grabbed from behind and dragged toward the front door of a building --one of about a dozen in a massive housing project in the middle of the Bronx. Ron, who lived in a small, overcrowded apartment jammed into the huge complex, had been walking down the street on his way to the train station when the police picked him up.

      
Almost everything in the case suggested that a mistake had been made. The girl explained that she never got much of a look at her attacker, and she couldn’t provide a description much beyond a black guy in a do-rag, hardly uncommon in the projects of the Bronx. When the police grabbed Ron about a block from the attack (even though the man who assaulted the victim appeared to flee into --not away from --the projects), they didn’t even bother to bring him over to her for a proper identification. Instead, from a distance of one hundred feet, the girl indicated that Ron looked like the guy, and that was that.

      
Identification cases plague the criminal justice system. In fact, the single greatest cause of wrongful prosecution and unjust imprisonment is misidentification. But even among ID cases, the case against Ron was a joke. There was no other evidence in the case and nothing to connect Ron to the attack; indeed, he had an alibi --his mother was able to testify that Ron had left the apartment just a few minutes before his arrest and hadn’t even been outside before that. Someone had done something horrible, but it sure wasn’t Ron.

      
Given all that, Ron might have had a good shot at finding some justice in the Bronx criminal court system. That is until he drew the perfect storm of prosecutorial and judicial perversion: Sarah Schall and Judge Diane Kiesel.

      
Prosecutors’ offices usually define success not by the justice of the result, but by the number of convictions. This creates a perverse incentive structure that rewards aggressive prosecutors looking for scalps rather than those searching for fairness. And though there are certainly bad guys who need locking up (I’ve represented several), when the enormous power of the state is arrayed against some poor kid from the projects, having a zealous prosecutor who is just looking to win will often result in a miscarriage of justice.

      
Even among domestic violence prosecutors, Sarah Schall is one of the worst --so sleazy that defense lawyers just laugh when she routinely claims to have “just found” paperwork she should have long ago turned over. Schall is small and mean and twitchy, and she tends to march rather than walk. Though she has pretty shoulder-length hair, between her edgy affect and a wardrobe that always seems slightly misassembled, her overall look is far more dowdy than cute. For Schall, every case is the crime of the century, often much to the detriment of her own complaining witnesses, who find their cases to be less about them and their protection than about Schall and her ego.

      
Domestic violence is a serious problem, and no one condones it. Women often call the police because they are terrified, helpless, or being seriously hurt. But they also call to remove angry, drunk, and often dangerous lovers and spouses, to report threatening phone calls, or even to tattle on loudly arguing neighbors. And once the police are called and mandatory arrest policies enforced, women lose control of their own destinies. Forgivable transgressions quickly become stuck in the court system as prosecutors supplant women as the arbiters of intimate relationships. Unfortunately for many victims, prosecutors often have an agenda quite different from their own. Sarah Schall is one of them --the kind of ADA that can make a woman believe that despite her abuse, her real mistake was calling the police or involving the prosecutors, because from the moment Schall is on the case, the interests of a victim and her family are likely to play second fiddle to Schall’s personal prosecutorial crusade.

      
Facing Schall at a trial is an unpleasant enough prospect, but if a defense attorney is trying a case against Schall with Judge Diane Kiesel on the bench, he might as well just hang it up.

      
There are judges who are gentle and judges who are tough, judges who are cruel and judges who are impatient; there are judges who berate defendants --pushing them to plead guilty while their lawyers stand there mutely --and there are judges who kindly respect whatever a defendant chooses to do in a case. And then there are judges like Kiesel, a former Manhattan prosecutor whose icy pucker and utter detachment perfectly reflect her complete heartlessness.

      
Kiesel is tall and very thin, with an angular, bony face framed by a severe chin-length haircut. Her hair is processed to the color of curb cement, and she has long, spindly fingers that move impatiently while she presides, sitting imperiously straight in her high-backed chair. There is a pinched intensity to Kiesel; she seems to listen to the proceedings before her with an emotional palate that ranges from disagreeable to sour, the nervous twitching of her Grim Reaper fingers tapping out a constant rhythm of disapproval.

      
When forced to interact with a defendant --to ask a question during a plea allocution, for example --Kiesel will hardly glance at him or her, preferring to stare down at the bench, over at the prosecutor, or even at defense counsel, anything to avoid acknowledging the humanity of the person standing helplessly before her.

      
I’ve often wondered why judges like Kiesel do this --does it come from the recognition that sending someone to jail or prison is a difficult thing and that avoiding eye contact makes it easier? Is it because they don’t want to appear too human or accessible to a criminal defendant? Is it that, somehow, being aloof makes them more powerful? Or is it that they’re actually just cruel people who despise those who appear before them? With almost all of the judges I appear before, I sense a combination of these factors: painful empathy, self-importance, and abject cruelty. In Kiesel, though, I see only cruelty.

      
Kiesel will often refuse to accept pleas that an assistant district attorney recommends, her narrow face twisted into a scowl of disapproval --
not harsh enough
, she’ll telegraph. She’ll also remand defendants after another judge has released them --and do so on the flimsiest of excuses. It seems crazy that a judge and her politics should have as much of an impact as they do. But judges are like the jokers of the criminal case outcome deck.

      
As a general rule, when a person is accused of a crime, he or she has the right to a jury trial. What most people don’t know, though, is that when you are charged with certain misdemeanor offenses, you lose that right. If you don’t have a right to a jury trial, what you get is a bench trial --one presided over by a judge who is the sole finder of both the law and the facts. And when that judge is Diane Kiesel, the outcome is a foregone conclusion. The mere threat of being forced to trial in front of her is enough to transform baseless prosecutions into strong cases, terrible plea offers into enticing deals, and it’s enough to make utterly innocent people plead guilty.

      
Kiesel is so openly pro prosecution, so astonishingly biased, and so relentlessly nasty that even assistant district attorneys quietly acknowledge it --and they use it, steering almost all of their cases before her toward bench rather than jury trials. When confronted by a tough case, or a recalcitrant witness, they simply “reduce the case.” That is, they cleanly and tactically lower the charges from class A misdemeanors to class B misdemeanors, depriving a defendant of a jury trial but not the possibility of a jail sentence.

      
And in Ron’s case, that’s exactly what they did. Between Sarah Schall and Judge Diane Kiesel, Ron hardly knew what hit him.

      
Ron’s lawyer, Ululy Martinez, saw it coming a mile away. Ululy was one of the most enthusiastic people we’d ever met, and but for the strength of his interview, we probably never would have hired him. Raised in the Bronx, he was a striver from an early age --one of those kids who miraculously avoided the pitfalls that snared most of his friends. Ululy deeply understood that making it out of the world he grew up in was as much about chance as it was about skill or drive or even ability. Deeply committed to his community, Ululy insisted, between his invocations of Maya Angelou and his former professors, that his goal in life was to help his people and his community by being a public defender.

      
At the trial, the prosecution’s case against Ron unraveled completely and quickly. The complaining witness and the police contradicted each other. The description of the perpetrator was meager and inconsistent, and the flimsy evidence was rendered transparent nonsense in the crucible of Ululy’s cross-examination. The only thing anyone seemed to agree on was that whoever had grabbed the girl had fled in the opposite direction from where Ron was arrested. Through it all, Kiesel tapped and twitched and scowled impatiently.

      
And after both sides rested and summations were delivered, she didn’t even hesitate. There was no real deliberation at all, just an instant, awful pronouncement: “Guilty.”

      
And then, with a sadistic scowl, she ordered Ron to jail and watched unflinchingly as the court officers fitted the cuffs around the terrified kid’s wrists and led him away. Ron had never been to jail before. Because a class B misdemeanor is the leastserious kind of criminal offense in the penal law, it is virtually unheard of for a first-time offender convicted of a B to be sentenced to jail. Kiesel, though, gave Ron as much jail time as she could manage. Then she imposed a term of probation to be served after his release.

      
And she still wasn’t done.

      
Despite the fact that the statute didn’t cover Ron’s offense, she bent the rules in order to have him branded a sex offender.

      
Had a jury heard his case, Ron would have been acquitted in an hour. But by gaming the system, Sarah Schall and the Bronx DA’s office had ensured he’d never have that benefit. Instead, his promising young life was ruined because Ululy got stuck in front of the wrong judge.

      
The only advantage to Kiesel is that she is so predictable that no one wants to hang around her courtroom. As a result, the line in AP-10 is usually much shorter than the ones downstairs, where Najid and Jaron and Cassandra are waiting.

      
Walking into the part, I feel my usual revulsion. Unlike the courtrooms below, which are all designed to process cases rather than try them, AP-10 is shiny and newly refurbished. It actually has a jury box, though so far as I know, it’s never been used for a jury; rather, waiting lawyers populate its padded reclining chairs. Scanning the box, it’s clear that there are only a few cases ahead of me. I should be in and out in ten minutes or so.

      
Spying my client, I nod a quick hello.

      
Hector is an older Hispanic man charged, like so many others in AP-10, with hitting his wife. They’ve been together for twenty-five years, and neither of them wants anything to do with the case. Hector takes a day off from work every month to come to court, while his wife makes phone calls to the assistant district attorney trying to drop the charges.

      
Unfortunately, once an arrest has been made it can be very, very difficult to get an assistant district attorney to let go. Many domestic violence prosecutors simply won’t dismiss cases even when the complainant wants to, and they will often resort to threats in an attempt to force the alleged victim to go forward. One of their favorite tactics is threatening to take the kids away if a woman doesn’t agree to cooperate with the prosecution. Mercifully, my client’s children are all grown up and out of the house, so neither he nor his wife have to worry --at least about that.

      
I give the bridge officer Hector’s name and calendar number, and settle into the seat that would, in other circumstances, be occupied by juror number seven. Leaning back in the comfortable chair, I dig out my files and settle in once more to watch Judge Diane Kiesel in action.

E l e v e n

2:52 P.M.

      
I’ve barely taken my seat in the jury box when two court officers march in a heavyset man of indeterminate nationality. He’s wearing a blue mechanic’s jumpsuit with a name that I can’t quite read sewn on the lapel. Mr. Blue Jumpsuit has been arrested for violating an order of protection. His hands are cuffed, and he’s shuffling toward the defense table from the back of the courtroom where the pens are. In the dozen steps it takes him to get before the judge, I can see him looking out into the courtroom at a little, round well-coiffed woman who’s seated in the fourth row and who returns his gaze with something like a smile.

      
Known elsewhere as “stay-away orders,” orders of protection are granted to alleged victims and witnesses almost automatically. Those charged, as Blue is, with having violated a stay-away order are subject to a jail term of up to a year --more if there are aggravating circumstances. Though a fine idea in principle, orders of protection are constantly abused. It is not at all uncommon for vindictive, angry partners to use orders of protection to wreak havoc on each other --using them as substitutes for eviction orders or citing them to justify ignoring child custody agreements. Almost everyone in the Bronx knows that the easiest way to gain control of a disputed property is to get a judge to issue a stay-away. One little allegation and within twenty-four hours the enjoined party can be barred from the house, allowed only a few hours to collect his things while accompanied by a police officer.

      
Just as Blue is taking his place at the defense table next to his legal aid lawyer, his little wife jumps up in the fourth row.

      
“He been good!” she says emphatically in heavily accented English. “Everything going great. Please, Judge, I am this man’s wife, and I’m asking you to please let him come home.”

      
From what I can gather, Blue has been in jail for a week or more. His lawyer, a lanky, clean-shaven man, is trying to explain to Kiesel why it is time to let him out of jail.

      
This, of course, is a futile endeavor.

      
“This whole case is a mistake, Judge,” the legal aid lawyer says, his voice calm and persuasive. “My client’s wife has called the DA’s office repeatedly trying to get them to modify the order of protection so that my client can live in the home.”

      
“Yes! Yes! I call! I call!” yells the wife from the back.

      
“Quiet, ma’am, or you’ll have to clear the courtroom!” an officer barks.

      
Legal Aid continues: “There have been no incidents of violence or aggression or anything --and, most important, no one called the police here. My client was arrested based on a routine check of the house. The complainant in this matter tried to explain to the police that she wanted him in the house, and she’s here in court to tell you the same thing.”

      
Blue’s wife is nodding --and she’s about to speak again when Kiesel spies her.

      
“Sit down,” the judge says sharply. Apparently she’s not interested in what the supposed victim wants.

      
“Down, ma’am!” says a court officer. “Sit DOWN!”

      
Blue’s wife sits.

      
“Is there an offer here?” Kiesel wants to know.

      
“The People’s offer is a B and thirty,” says a young assistant DA from the domestic violence unit, conveying the standard offer. She’s wearing tired pumps and a beige Ann Taylor dress.

      
“Does your client want it?” Kiesel asks dryly. She couldn’t be less interested in Legal Aid’s explanation.

      
“Judge,” Legal Aid replies, “my client wants to go home to his family --where his wife and children want him. I’m asking you to at least listen to this woman --this is what she wants too.”

      
Glancing over at Blue’s wife, I realize that her husband is almost certainly in jail because the original assistant DA didn’t bother to return the woman’s calls requesting a modification of the order of protection to allow Blue to live at home.

      
“Does he want it?” Kiesel asks sharply.

      
“Judge,” Legal Aid tries again valiantly, “she tried to get the order of protection limited.”

      
But Kiesel doesn’t care. She’s heard enough. “It’s MY order,” she says. “Theyyyy” --she stretches out the word so the condescension is lost on no one --“don’t get to make those decisions.”

      
There is silence in the courtroom. Several people in the audience are shaking their heads and lowering their eyes, evidently astonished. They don’t know Kiesel like I do.

      
“So I take it your client doesn’t want the offer?” Kiesel sneers. “Defense motions are due . . .”

      
“I’ll waive motions!” Legal Aid declares --averting a disaster that a less-alert lawyer might have fallen for. Motions --for discovery, suppression of evidence, or for almost any other relief in a case --are the bread and butter of most lawyers. At big law firms many so-called litigators never set foot in a courtroom; they’re considered litigators mostly because they negotiate with opposing counsel and file a bunch of motions. But motions practice in the Bronx is usually a futile endeavor, and strange as it may seem, in many cases involving incarcerated clients charged with misdemeanors, just chucking the entire exercise is actually the smart move --not just because it’s futile, but because it’s time consuming, and time is something that indigent, incarcerated clients can ill-afford. Like so much else in Bronx criminal practice, the decision about when to give up motions is about poverty and power.

      
Blue is in jail because he doesn’t have $750 --the bail amount set by the arraigning judge. And because he doesn’t, he’ll sit in jail until he pleads guilty or manages to get a trial. Right now, the DA’s office is offering Blue thirty days at Rikers, of which, thanks to the good-time rules of the Department of Corrections, he’ll serve twenty. He’s been in jail for about a week already. If the judge or the DA can stall the case for just two more weeks, Blue will be in the position of staying in jail even longer than he would if he just pled guilty and ate the twenty days right now. Every single lawyer in the courtroom knows this --and so does Kiesel. It is the dirty little secret of the adjournment game. Legal Aid is willing to waive motions precisely because he knows this too. The motions schedule is a Kiesel power play designed to punish Blue for not playing along with the plea-bargain game.

      
“Judge, the complainant is here in court.” Legal Aid is really giving it a go. “Would you consider reducing the bail?” If Kiesel were to reduce the bail, Blue could get out, and then, with time no longer of the essence, the case would inch toward a trial at which, when his wife didn’t show up, the charges would almost certainly be dismissed.

      
Fat chance.

      
“Do you want a motions schedule or not?” Kiesel asks, ignoring the request altogether.

      
Blue’s eyes are darting between Kiesel and his lawyer, trying to follow the action, but as with so much of the rapid back-andforth in criminal court, the lawyers and judges are talking in a code larded with implications that aren’t obvious to the casual listener and certainly not to an incarcerated client who hasn’t even had a chance to talk to his lawyer before getting marched in.

      
“I’m waiving motions --I want an immediate trial,” Legal Aid says, defiantly holding his ground.

      
“Judge,” says the ADA, affecting an almost bored tone, “the People aren’t ready today.” She too is looking to delay the case, to force the plea.

      
“Their witness is right here in court!” Legal Aid protests.

      
“We want time to investigate,” the ADA says utterly mendaciously.

      
“Fine,” says Kiesel, announcing a date three weeks away.

      
“Judge,” groans an exasperated Legal Aid, “that’s too long. I’m waiving motions so I can get an early trial date.”

      
“The trial parts are very busy,” replies Kiesel dryly. “Can I get an earlier date?”

      
I have to hand it to Legal Aid --he’s doing everything right; it’s just that he’s in Judge Kiesel’s courtroom.

      
Perversely, she offers a date two days earlier than the one she previously announced, a worthless concession.

      
“Judge,” Legal Aid implores, “adjourning the case even that long will be penalizing my client for going to trial.”

      
“Which date, Counselor?”

      
Kiesel’s eyes are cold, and she has the fingers going now. It’s abundantly clear that things are about to get much worse for Blue if Legal Aid keeps fighting. There is a pause, just for a heartbeat, as Legal Aid considers his options. This is too long for Kiesel.

      
“Case is adjourned,” she says flatly, giving the latter of the two options as the date to reconvene.

      
Legal Aid looks stricken --he’s just been whupped. He leans over to his client and starts whispering. Sensing what is happening, the wife in the audience begins to cry.

      
“Step outside, ma’am,” a court officer tells her.

      
I can’t hear exactly what is transpiring, but I’ve been in this position hundreds of times and know by heart the horrible explanation. I’ve delivered it myself dozens and dozens of times:

      
“I’ve been trying to get you out of jail. The judge knows that your wife wants you home. She knows your wife is here, and she knows that you tried to get the order of protection changed. She doesn’t care. The DA is offering you thirty days in jail if you plead guilty --that means you’ll be out in twenty days including the time you’ve already been in. I’ve already asked for a trial, but the problem is, the judge won’t give us a trial date until the seventeenth --and that’s more than two weeks away. I’m not defending this, but the reality is that if the case were to go to trial that day, which is unlikely, you will already have been in for more time than if you just plead guilty right now. I’m not defending it; I’m just telling you that unless you think you can find someone to put up the bail money, you’re gonna be in here for at least another few weeks, and longer if we keep pushing for a trial.”

      
There are few things I hate more than giving this speech. It confirms everything my clients think about the system --that it’s coercive and unfair, and that within it the deck is stacked against them because they’re poor. They’re right, of course, and it galls me to have to admit that I am complicit in this abuse and worse, that despite my fancy law degree and my big vocabulary and my tough-guy posturing, I’m a weak little pawn in a very ugly system and there is not a goddamn thing I can do to stop them from getting fucked.

      
Worse still, of course, is that Blue, like so many of my clients, is about to wind up with a permanent criminal record, which will, in turn, almost certainly mean that he’ll lose his job and have a very hard time getting a new one unless he lies about the conviction. Still, almost anything is better than more time in jail.

      
Blue shrugs the kind of defeated shrug I’ve seen a thousand times over the years, his head shaking just a little bit, amazed at his predicament.

      
“Fine” is all he says.

      
Kiesel has been staring off into space during the forty-five seconds it takes to have the brutal talk with Blue, her fingers thrumming an impatient rhythm on the bench as she waits for what we all know is coming.