INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (3 page)

      
 
The criminal justice system is grounded in the idea that truth is a slippery thing.
 
In the vast majority of cases there is no high angle, omniscient camera recording the events precisely as they unfold.
 
As a result, the attorneys, juries, and judges are left to cobble together, from questionable perceptions, shifting recollections, and forensic evidence, some vague facsimile of truth.
 
Because our system is based on the procedural mechanism of proof rather than on some ontological notion of truth, knowing what the prosecutors have is often as critical as knowing what they don’t have.
 
Since most (certainly more than half) of my clients are actually guilty, figuring out how easily the prosecution can prove the case is often invaluable in deciding what a good plea deal is.
 
Paradoxically, sometimes even the most damning evidence winds up being the best for a client --because it allows him to see that fighting the case is fruitless and persuades him to take a deal early, before the price goes up.
 

      
 
I worked with Gillian twice a week for more than two months to prepare her testimony.
 
First we agreed on a structure --who she was, the story of meeting and courting her husband, and finally, what happened the night she stabbed him.
 
And when she was finally ready, after the prosecutor called to let us know that they were actually proceeding against her (I’d hoped against hope that they might just dismiss the case), on the day that she walked nervously into the grand jury room and took her seat before the risers containing the twenty-three citizens that would decide whether or not to indict her, that afternoon, when she put it all together for the first time, explaining her hardscrabble life, her deep love for Rodney, and how their marriage had disintegrated when he started to beat her, I knew we had a shot.
 

      
 
“He was so good to me,” Gillian choked out before dissolving into tears, “so gentle and funny, strong and handsome.
 
I loved Rodney so much.
 
And I killed him.” She took a deep breath, steadying herself.
 
“It was getting worse and worse.
 
He kept hitting me harder, longer.
 
I knew I should have just covered up and taken it.” There was a hiccup as Gillian struggled for air, for control over her voice.
 
“I should have let him do it .
 
.
 
.
 
I know.
 
I know.”

      
 
“Take your time, Gillian,” said the prosecutor.

      
 
“He was hitting me so hard,” Gillian continued in a whisper.
 
      

      
“We were in the kitchen, and the knife was there.”

      
She was almost hyperventilating now.
 

      
“And I just did it.
 
I grabbed the knife and I poked him and he was still hitting me and yelling and beating me and I just .
 
.
 
.
 
I just .
 
.
 
.
 
killed him.
 
I loved him, and I killed him.”

      
Gillian broke down completely, racked with the kind of heart-wrenching, remorseful sobbing that takes your breath away with its piercing intensity.
 
And as I tried to contain myself, looking down at the floor so that the jurors wouldn’t see my own tears, I noticed the assistant DA in the back of the room looking as though she was going to cry too.
 

      
 
There wasn’t much cross-examination.
 

 
     
The ADA had said she intended to vote the case right away.
 
Apparently, after Gillian’s emotional testimony, she changed her mind.
 
She may have been on the verge of tears, but she still wanted that indictment.
 
Two days went by, and I began calling the ADA.
 
“When are you going to vote the case?” I’d ask.
 
“Oh, I’m not done with my presentation yet,” she’d reply unconvincingly.
 
It was clear to me what was going on --she was icing us, waiting so as to diminish the impact of Gillian’s testimony, hoping that as time wore on, the grand jurors would forget everything except that she admitted to stabbing Rodney, and would therefore charge her with murder.
 
The longer the ADA waited, the more Gillian’s testimony would recede in their minds --and the more likely it was that they’d indict.
 
There was nothing to do but wait.
 

      
For three weeks I called the ADA daily, with no results.
 
As bad as I was about waiting, Eddie was a lot worse.
 
As another week edged into past tense, we met in his office.
 
Eddie’s blue eyes were blazing.
 
He’d been drinking for about an hour, and on his desk, lined up neatly like obedient soldiers, were five empty cans of Budweiser.
 

 
     
“Listen to me, you little fuck.” Eddie’s speech was slow and menacing “
You think you’re good
.” Eddie was staring.
 
The other people in the room looked on nervously as he leaned in, his cold eyes locked on mine.
 
“You think you’re so
fucking good
.”

 
     
“No,” I said slowly.
 
“I don’t think that at all.”

      
“Yes, you do .
 
.
 
.
 
, you fuck.”
 
Eddie was wagging his finger now, his Vietnam-vet eyes furious and brutal.
 
“You know what? Somebody’s gotta put you in your
fucking place
.” I wasn’t sure where he was heading with this.
 
The other lawyers watched me the way rubberneckers watch a car accident.
 
Eddie staggered to his feet.
 

 
     
“Let me tell you something,” he declared, his words slurring together just a little.
 
“If they indict that woman for murder, I’m putting you on a fucking bus back to Wisconsin.
 
You hear me?” Eddie leaned forward, his powerful square chin thrust toward me.
 

      
“They’re not gonna indict her, Eddie,” I said slowly, looking him straight in the face.
 
“And if they do” --I paused for just a second before deciding to give Eddie exactly what he wanted --“you don’t have to worry about it.
 
I’ll take myself back to Wisconsin.”

      
It was 5:45 p.m.
 
when I finally got the call: no true bill.
 

      
I’d won my first murder case.
 

      
In the dozen years since I took that case, I’ve represented murderers, rapists, prostitutes, and drug dealers.
 
I’ve seen cops lie and maim and subvert the rules of orderly society, watched as heartless, exhausted judges herded people through their courtrooms and into jail, barely glancing up to see who they were sentencing.
 
And yet, after all these years, I can still see what was so plain about the woman who grabbed the kitchen knife and stuck it to her husband: it’s often not as obvious as it was in her sad case --battered mad at the hands of a violent husband --but always, if you look hard enough, there is a story, a human drama that casts in a different light the horrific specter of criminality.

      
This book is about those stories.
 
It is about justice for the haves and the have-nots, about what it is like to be a lawyer in the big city --not a lawyer at a firm in a tall building, defending clients in expensive suits.
 
No, this is about law without the cuff links, about law as it’s really practiced --in the drab and common precincts, where man’s inhumanity to man is writ large in every tragic detail of otherwise invisible cases.
 
It is about a single day in my life as a public defender in the South Bronx.
 
And it is, in the end, about everyday life in a thousand city courtrooms across America, in the grimy brick buildings and corroding concrete warehouses where American injustice is dispensed bathed in flickering, fluorescent light.
 

O n e

Monday 8:52 A.M.

      
I woke up dreaming. Of Angelo Tona.

      
Judge Tona made me cry.

      
King of the calendar, dean of dispositions, Tona could do a hundred cases in a single night without breaking a sweat. He rarely listened to lawyers and barely glanced at the people he processed like so much Spam. “Three days’ community service,” he’d bark without looking up. Clients had about ten seconds to decide. “Fifteen days’ jail. You want it, yes or no?” he’d bellow. There wasn’t much bargaining room.

      
Tona was an equal-opportunity bully: if he didn’t like a prosecutor’s offer, he’d release the defendant; if he thought defense counsel greedy, he’d jail the client. But this wasn’t about balance or equity. Tona’s courtroom was about power,
his
power, pure and simple.

      
This was a lesson I learned the hard way. I had been a public defender for less than a year.

      
It was late at night, and the dingy seventh-floor courtroom was packed with anxious faces, watching as their loved ones were paraded before Judge Tona. I don’t remember the client’s name anymore, nor do I remember what possessed me to argue with Tona. In retrospect, I’m sure I thought my client was getting screwed. After all, most people got a raw deal in Tona’s court. The charges were certainly minor, the defendant likely half decent, at least.

      
Maybe it was the hour --it had to be 11:00 p.m. or so. Because of the huge number of cases, night court routinely ran into the wee hours of the morning. “Legal Aid Society, by David Feige,” I announced as I had a dozen times already that night. Then, in the standard formula used in every arraignment to get things moving along, I said, “Waive the reading but not the rights.” This meant we were fine with skipping the recitation of the charges, but that didn’t mean we were giving up any other procedural or substantive rights the client might have.

      
“No offer here, Judge,” the assistant DA replied.

      
“Okay,” said Tona. “Bail is set in the amount of five hundred dollars, cash or bond.”

      
“Huh?” I exclaimed. The way the process worked was that the prosecutor made his request and the defense got a chance to respond. I hadn’t yet opened my mouth to make a bail argument, and Tona was moving on.

      
“Next case, please,” Tona said matter-of-factly.

      
“B-but, Judge!” I stammered. “I didn’t get to . . . uhhh . . . I’m asking you to release my client on his own recognizance.”

      
From the bench: “Be. Quiet. Mr. Feige.”

      
“Your Honor! My client is a high school graduate, he’s working full-time, and —”

      
“I said, next case please.” Tona couldn’t have been cooler.

      
“His
mother
is here, in court.” I was getting frantic. As far as I was concerned, this was clearly a kid who shouldn’t be going to jail --a place of violence and depredation, a place where even a single night in a cell risked robbery, mayhem, or even prison rape.

      
“One more word from you, Mr. Feige, and bail is going
up
. One hundred dollars a word.”