INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (30 page)

      
There are almost as many official names as street names for narcotics cops. Known in the bureaucracy of the police department as TNT, SNEU, or NBB (Tactical Narcotics Teams, Street Narcotics Enforcement Unit, or Narcotics Bureau --Bronx), the drug teams are infamous for their special brand of roughand-tumble justice. People on the streets have their own names for the narcs. Some prefer Jump-out, for their signature move, and many still love 5-O (pronounced
five-oh
) as in
Hawaii Five-O
.

      
“Where are they?” the cop patting Omar down kept asking.

      
“I don’t got nothing, sir,” Omar said politely, knowing they wouldn’t believe him anyway.

      
“Where the fuck is the stash?” Another officer now, this one bigger, more menacing. “I said, where the FUCK is the stash?”

      
The cop handcuffed Omar, roughly turning him around to yell in his face.

      
“Tell me now, you little fuck, where’s the stash?”

      
The other cops slowed down, their search having turned up nothing.

      
“I told you, sir,” Omar said, trying to fight back panic, “I don’t got nothing. I didn’t do nothing.”

      
“Put him in the van,” the bigger cop said, nodding toward the marked police van idling nearby. There were four other people in it already.

      
By the time Omar got to the precinct, the reality had set in. Packed into a dirty cell with a dozen other arrestees, Omar was focused on just getting through the process. He asked to call his wife, but, not surprisingly, as the hours ticked by no one managed to let him out of the cell for long enough to call. Though it was now well after midnight, Omar, wary of the other men in the cell, tried not to sleep. He was moved four times between midnight and 5:00 a.m. Once, after they took his fingerprints and his rap sheet came back, one of the officers made a special trip across the room to the cell where Omar sat.

      
“You got no idea what you in for, motherfucker,” the cop said. “You’re fucked.”

- - - -
 

      
“People, what’ve you got in this case?”

      
That’s all the judge at arraignments wants to know --the big question in every drug case: “Is there buy money [cash] or additional drugs [stash] recovered?”

      
Omar couldn’t have been more surprised by the answer. “Both, Judge,” said the ADA, shuffling through the file. Omar almost collapsed.

      
“What?” he said urgently, tugging on my shoulder. “Stop it,” I hissed.

      
“But I didn’t . . . I didn’t,” he whispered, eyes wide. “Quiet!” I snapped, making a bail application that focused on his ties to the community and the fact that he’d been working and basically out of trouble for nearly a decade. “Please release him,” I asked the judge, “he’ll come back to court.”

      
“I’m setting bail,” the judge announced as Omar’s shoulders slumped.

      
Fortunately, unlike many clients, Omar was able to find several thousand dollars and actually post bail. In one sense this was great --it allowed him to fight the case from the outside, coming into the office for meetings and strategy sessions. But on the other hand, since Omar was facing a mandatory prison sentence upon conviction, any plea he took would mean that he’d have to “step in” --that is, go from being free to being an inmate --something that pushes many defendants to risk a trial rather than surrender.

      
As the case wore on and Omar, insisting on his innocence, rejected even pleas I thought reasonable, I pushed him harder and harder for an explanation of where the buy money and drugs came from.

      
“Planted,” he insisted implausibly. “I was framed.”

      
“You never had them?”

      
“They’re making the whole thing up” is not a defense I was looking forward to asserting in front of a jury, especially in a Stash and Cash case.

      
A No Stash, No Cash case is a weak one. It means that there is absolutely no forensic or physical evidence linking the defendant to the crime. The entire case will thus rest on a bunch of cops coming into court and insisting that the guy they bought from is the same guy they arrested despite the fact that he didn’t have matching drugs or prerecorded buy money. The defense will argue that the cops made a mistake --they mistook Mr. Nice Client for the JD they were looking for. Because they can’t prove the identification, they don’t deserve a conviction. These trials are essentially cop-credibility cases, and they stand and fall on two factors: how convincing and personable the undercover officer is and how trusting the jury is of cops.

      
In the Bronx, No Stash, No Cash cases are almost always winners for the defense. Bronx juries have all seen drug sweeps, and most male jurors have seen or heard of cases in which the police throw a bunch of people up against a wall, search them all, and decide later who to arrest. Bronx residents tend to be skeptical of cops and willing to entertain the possibility that the officer might have made a mistake.

      
Try that same No Stash, No Cash case before a jury full of white folks from downtown, and the chances of getting an acquittal plummet precipitously.

      
Things get harder when there is stash or cash, or worse, both. In almost every one of these cases, the defense is either what I call “big mistake” or “buyer not seller.”

      
Being a drug buyer is a criminal offense, since by definition the client, at some point, was guilty of simple possession. The trial strategy in buyer-not-seller is to go for an acquittal on the sale counts and accept a conviction on a misdemeanor possession count. This is because seventh-degree possession (the most minor of all six drug offense levels) is a misdemeanor rather than a felony, punishable only by up to a year in jail. Because most clients will have already
been
in jail for more than a year by the time they actually get to trial, a possession verdict is considered a win. Moreover, the buyer-not-seller defense dovetails nicely with the mistaken ID defense used in the No Stash, No Cash cases --the officer may remember the guy he arrested, but only because he was right behind him in line to buy. After a few years, almost every public defender has tried some variant of the buyer-not-seller defense.

      
On the other hand, Cash, No Stash cases have to explain the presence of the money. These cases go two ways --one of which requires admitting contact with the seller. In the first, the defendant bought right after a police officer and got the prerecorded buy money as change (drug dealers regularly seek to cycle their cash for exactly this reason). The absence of drugs is explained by having either ditched them or (in crack cases) already smoked them.

      
The second variant of this Cash, No Stash configuration completely denies contact with the actual seller --the “milk and Pampers” defense.

      
The milk-and-Pampers defense hinges on the deal going down near a retail establishment --usually a bodega. Most people in the Bronx understand (and police will often admit) that drug dealers often churn their cash via local businesses. Given that fact, it’s not so far-fetched to believe that the client got the money as change when he innocently wandered into the bodega to buy milk or Pampers for his child’s mother right after the drug dealer was inside. The real seller, it turns out, had just churned the cash by buying something else in the store.

      
But of all the predictable defenses and all the possible configurations, Omar had the worst. He had a Stash and Cash case, and he had a defense I could barely understand.

      
They’re making the whole thing up
.

      
This was Omar’s mantra, and for seven months I’d been utterly unsuccessful in my attempts to move beyond it. Taken alone, it was an impossible defense, yet Omar was resolutely sticking to it despite my pounding away at him. And so, sitting in my little office behind my battered desk overflowing with papers and case files and arrest photos, I fixed Omar with an exhausted look and delivered my ultimatum.

      
“Omar,” I said, “I’ve been your lawyer for seven months now, and I feel like our relationship is deteriorating. The case has been transferred to Judge Rivera, who is going to be the one trying it --and not so far in the future, either.” Omar held my gaze --he knew exactly what I was getting at: Rivera could be trouble.

      
From what I could tell, Reinaldo Rivera had lifted his judicial vocabulary from
Star Trek
. He spoke in a gravelly voice, shaking his head as if the routine pronouncements he made from the bench had the gravitas of Delphic prediction. “Make it so” was one of his favorite phrases, as was “I declare it.” He favored verbal trilogies, and where most normal judges would just ask a client, “Do you give up your right to a trial?” the Rivera version would be “Now, sir, I will now ask, and I query you: do you renounce, give up, and forfeit your right to a trial?” It was hard not to laugh sometimes, but Rivera could be prickly, and clients had to be carefully prepared to appear in front of him.

      
Rivera was all about appearances --bring in a client in a good suit, you got a break; forget to tell your kid with the drug case to dress up, or worse, have him defy you and show up in baggy sweats, an NBA jersey, and a hoodie, and you’d be lucky if Rivera didn’t find a reason to put your kid in jail that very day. There were dozens of occasions on which I intercepted clients outside the courtroom, calling their parents or sending them home to change lest Rivera decide based on the clothing alone that the kid was guilty or menacing.

      
Well beyond fashion, stage management was the most important factor when trying a case in front of Rivera. This was especially true in his plea allocutions --the series of questions a defendant has to answer in order to enter a guilty plea. Rivera’s allocutions were famous, not only because they were insanely wordy, but because he deliberately made them difficult. In every plea bargain there is a delicate moment in which a client admits guilt to certain specified offenses. It’s the scariest moment of the plea process --the place where clients balk or judges renege --and most judges try to soft-pedal it, asking the prosecutor to read the specific legal offenses and asking the client whether he or she admits the offense. Generally a simple yes will do, and getting a yes is relatively easy.

      
Rivera, though, had his own notions of what a plea should sound like. And so, after the long-winded waivers of every imaginable constitutional right, when he got to the most important part of the plea, Rivera would lean back, a taunting smile on his face, and looking down at the client from the bench, he’d say: “Now, sir, tell me in your own words,
WHAT
did you do to make yourself guilty of this crime and
WHY
?”

      
This was an all but impossible curveball for an unprepared client. Most could get the first part. “Ah, I robbed a kid?” they’d say quizzically, or “Ummm, I sold drugs to a undercover?” But even when they got the
what
part of the question, the
why
completely flummoxed them. And Rivera rarely let a plea proceed without his beloved explanation.

      
What made
why
so difficult is that my clients rarely had any idea
why
they did things. With some therapy perhaps they’d conclude that they were drunk, or pissed off after a lifetime of abuse, or desperate for some cash, or in love with the sexiness of the gangster lifestyle, but none of these explanations trips off their tongues when confronted by Rivera’s expansive curiosity. As a consequence, their answers are often amusing stabs at elusive self-knowledge.

      
“I was hungry?” one client asked, trying to explain a theft.

      
“He looked rich?” mused a robber.