INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (32 page)

      
Unfortunately I dragged Malik in to give him an answer I’m sure he’d rather not hear. What’s up is that Malik is getting screwed. The DA’s office won’t split his case from that of a codefendant; they’ll only let him go to the drug treatment center he desperately needs if both he and his codefendant plead guilty together. The problem is that Malik’s codefendant had fifteen hundred dollars for bail and Malik didn’t. That means Malik will spend the next two years of pretrial delay eating bologna sandwiches at Rikers while his codefendant will be home having dinner with his mom. It also means that Malik has a reason to plead guilty. Malik may end up spending two years in jail waiting for his codefendant to plead guilty or go to trial just to get a treatment bed that is available now. And there is almost nothing I can do about it.

      
Sitting there in that little booth, already half spent from a day running around yet somehow running in place, looking helplessly through the wire mesh at Malik, I get a jolt of the dislocating despair that sometimes takes over my work life. I can’t help Malik; I can’t seem to get Clarence’s case dismissed; I helped put Cassandra in jail. My entire day has been delaying inevitable injustices, trying to hold a line that continues to crumble around me. And as much as I know deep down that I’m fighting the good fight, I can’t help getting that creeping feeling that I may never win, that in some sick way, the joke’s on me. It makes me furious.

- - - -
 

      
Anger works. Anger is rejuvenating. It is anger --that smoldering fury --that allows a public defender to survive. Without it, the never-ending flood of cases can leave even the thickestskinned lawyer jaded, cynical, and burned out. Of course, being pissed off all the time can also lead to heartbreak, heartburn, and probably even the occasional heart attack. But without that fury, and without the human connection it depends on, even veterans start to tune out the defenses and the explanations, and succumb to the routine of processing cases rather than touching lives.

      
“It’s bullshit, brother --I know it’s bullshit,” I say. “But there’s nothing I can do right now. I promise you, though” --my voice is urgent --“I will try again; I’ll go to the head of the bureau if I have to. I will.”

      
Malik is looking at me beneficently, his hands quietly folded on the steel shelf behind the slot through which we sometimes slide legal papers. His lips are pursed, and he’s nodding slowly.

      
“Just get me outta here, Dave,” he says evenly, and then making a fist with his right hand, he places it heel-side out against the mesh.

      
Clenching my fist and holding his gaze, I raise my hand, the heels of our fists barely touching through the metal --a jailhouse handshake. “You got it, brother,” I tell him, promising something I fear I can’t deliver. I stand up to leave.

- - - -
 

      
“You know, Feige . . .”

      
Jason’s owlish glasses were set high on his nose, and his face was twisted into a toothy, goofy Jason Miller grin. We were in arraignments one night just after Jason had started taking felony cases. He was holding a file, having just come back from interviewing another client in another drug case, when he popped the question.

      
“I’ve noticed that people seem to use the same defense a lot.

      
It’s almost like there’s a drug defense school or something.” “Milk or Pampers?” I asked.

      
“Weird,” Jason said, shaking his head. “How’d you know? It was Pampers.”

      
“Of course it was.” I grinned. When you’ve heard every defense a thousand times, true or not, they can all start to sound like bullshit.

      
“Jason, the most dangerous thing there is to do in the Bronx is go out at night to buy milk or Pampers for your baby mother.
 
This is a good thing for you to learn. The cops don’t bother you if you happen to need some Rice-A-Roni or coffee-flavored Häagen Dazs --they’re looking for the milk-and-Pampers guys.”

      
The unsettling thing is that many of the guys with the milk or Pampers defenses actually
are
innocent. What I never understood was why they were telling me a story that sounded so stupid. But just a few weeks after my encounter with Jason, I finally figured it out. I was talking to a long-term client of mine who’d been rearrested on a drug sale and was now looking at a potential prison sentence.

      
“Dave,” Jonathan had said to me urgently, “I didn’t do this one --I’m serious, brother, I ain’t do this one. You know me, you know I fuck up sometimes, but I didn’t do this.”

      
“Okay, so how did you wind up arrested?” I asked him, knowing the answer.

      
“Okay, check it,” he said. “I was just going to the store, looking to get some stuff for my baby mother. . . .”

      
“Milk, right?” I say. I’m taunting. I shouldn’t be.

      
“Exactly!” he exclaimed. “How’d you know?”

      
“Jonathan,” I said firmly, “how long have I represented you?”

      
“Long time, Dave.” He was nodding as if it meant something to him.

      
“I ever fuck you over?”

      
“Naw, man.”

      
“You think I care if you did this?”

      
“I dunno.”

      
“The last one --the one you
did
do --did I represent you then?”

      
“Yeah . . .”

      
“I do right by you on that one?”

      
“Yeah.”

      
“So you think I give a fuck if you’re guilty or not?”

      
“Naw, I guess not.”

      
“I don’t,” I said firmly, looking into his eyes. “But giving me some bullshit story don’t make it any easier for me to do what I gotta do, which is bust you out of this.”

      
Jonathan stared, his lips pursed just a little bit. He seemed to be thinking this over, just a bit embarrassed.

      
“But, Dave, I’m telling you I
didn’t
do this.”

      
“I believe you, brother,” I said, staring across the table, “but you gotta tell me what the fuck was really going on out there.” Jonathan took a breath and leaned back in his chair, fixing

      
me with an appraising glance. “Okay,” he said.

      
“I’m in an alley shooting dice with some guys from the building. There’s a few guys hustling down the street, and sometime they shootin’ and sometime they pitchin’.

      
“So, you know, I ain’t payin’ it no mind, ’cause that’s their business, you know, and so we just drinkin’ and playin’, and all of a sudden the cops roll up from like everywhere, and they grabbin’ up everybody and searchin’ everybody, and I just won some so I had like forty, fifty dollars on me, and they be lookin’ everybody over and they just grab me --but I didn’t do nothin’.”

      
“You know the guys selling?” I asked.

      
“Yeah --by face. They from my building. But I ain’t sayin’ that --you know.”

      
“I understand,” I said, looking at him hard. “But, Jon, why’d you tell me that bullshit about the milk?”

      
“Dave,” he said gravely, “you a good man. You already done me solid on the last one; I don’t wanna come in here sayin’ I’m chillin’ with a bunch a gangsters and shootin’ dice and drinkin’, you know.”

      
“Okay,” I said. And all of a sudden it hit me: my clients, scared of the system and the lawyers who represent them, don’t want to look like lowlifes --they’re desperate, even in handcuffs or behind bars, to appear respectable and responsible, and the easy default way to express that is by claiming they were going to do something wholesome, like buying milk or Pampers.
 
It’s why it’s never ice cream. Ice cream or beer or cigarettes is frivolous; the trip to the bodega has to be an errand of necessity, engaged by a responsible adult.

      
Much of the nonsense my clients proffer is not an attempt to bamboozle the judges, cops, and lawyers they are already convinced are out to get them, but to protect the thin thread of decency on which they imagine their dignity depends. And that they’d risk truth, or freedom, to insist on that last sliver of dignity speaks volumes about the system and what it can and cannot crush.

      
As it turns out, people in the criminal justice system lie all the time, for all kinds of reasons (not just to make themselves less culpable). I pled a young kid named Eric in a shooting case even though I knew he was covering for his big brother who had a worse record than him. He went to prison for more than two years. Just a year later, I wandered into criminal court to find the brother Eric had done so much to protect charged with stealing a car. They got out about the same time. I’ve seen this happen dozens of times.

      
Turning away from Malik, I head back toward the doors to the courtroom. It’s getting late, Najid is wasting another day of his valuable activist life, Cassandra is still sitting in a little smelly jail cell two floors below me, and Malik is going to rot at Rikers
 
for no good reason. Add to that the guy getting his ass kicked upstairs in AP-10, and by the time I’ve covered the twenty feet to the corrections officer guarding the steel door to the courtroom, I’m really spoiling for a fight.

      
“You’re looking pretty pissed off, Counselor,” the corrections officer teases me. He’s huge, easily six four and 285 pounds.

      
Huge has the good-natured disposition of men unused to being physically challenged. His hair is pulled up in short twisted braids, and he’s smiling as usual.

      
“You don’t know the half of it,” I tell him.

      
“Client an asshole?” Huge opines.

      
“No, DA’s an asshole,” I tell him.

      
He just snorts and bobs his head as if he’s heard that one before --which, of course, he probably has.

      
“Hang in there, Counselor,” he tells me, “they’re lucky to have you.”

      
“Thanks,” I say as he swings open the dark-blue steel door to let me into the crowded space between corrections and court.

F o u r t e e n

3:38 P.M.

      
A nervous kid with cornrows is standing in front of the judge when the door from the pens glides open, and I begin to shimmy my way through the handcuffed men, heading out into the courtroom.

      
The kid is taking a plea. His answers are stilted and halting, and his eyes dart around the room, telegraphing something more akin to confusion than discomfort. It is clear he’s taking a simple plea --a plea that will set him free --but it’s equally clear that he is so out of it that even the judge is starting to catch on.

      
“Does your client understand what’s going on here?” the judge demands.

      
“Yes, Judge, he’s fine --just a little nervous,” his lawyer replies.

      
It’s clear that this is a lie.

      
The kid’s lawyer is a well-intentioned long-haired woman from Legal Aid. She is leaning over toward the kid, trying to soothe him, to coax him through the next forty-five seconds. She knows that if she can just get him to stay calm and say yes about four more times, she’ll walk him out the door. I can feel the delicacy of the moment, and so can she. Foolishly, I pause to watch.

      
As Long Hair leans in, the kid shifts his weight, almost twisting his body around the hands that are cuffed behind his back. I can almost hear her soothing cadences --but they’re not having the desired effect. Finally, she slides her hand across the small of Cornrow’s back, lowering her head toward his like a mare nuzzling a foal, her hand gliding across to his shoulders, and I can imagine her saying, “It’s gonna be okay. I promise. You’re almost there.” And then it happens: the kid relaxes. I can see his shoulders slump, his head rise slightly, his breathing stabilize. “We’re ready to proceed, Judge,” she says quietly. Less than a minute later, with Long Hair’s hand still gently rubbing his shoulder, the kid is free.

      
Nearly half the attorneys in the Bronx Criminal Courthouse would have blown that plea. Unwilling or unable to understand that the kid just needed a calming hand on his shoulder and a gentle voice in his ear, far too many lawyers (men especially) would have answered the judge by turning to their clients and asking them right in the middle of the courtroom “Are you all right?” or “Do you understand what the judge is telling you?” They’d use this strange, exasperated, I’ve-done-everything-I-canfor-you tone, and then shrug helplessly at the judge, as if to say, “Hey, I can’t help it that this kid’s an asshole.” For that kid, such an act is a one-way ticket back to the island. Equally sad is the fact that not only would the bad lawyers have blown the plea, they’d have scoffed at the idea that all it might take to get the kid out was a gentle touch.

      
The truth is, many times the difference between good and bad lawyering
is
just that gentle touch. Often, all it takes to solve a client’s problem --inside the courtroom or out --is a moment of sensitivity or insight. Arben was the perfect example. Arben couldn’t sleep. Night after night he tried, but the neighbors wouldn’t shut up. He spoke to the landlord. The noise continued. He asked the neighbors, gently, to lower the noise level, nodding in his native Albanian and speaking as one Eastern European immigrant to another. That didn’t work either. So he tried arson.

      
“Sleep,” he explained to me, his huge, fleshy face alive with the import of the sentiment, “very important.” Sleep deprivation and a minor psychiatric history will drive a man to do strange things --in this case, to try repeatedly to light an oozing liquid he had poured under his noisy neighbor’s door. As luck would have it, antifreeze is not flammable.

      
Because there was no real damage to the apartment, and because of a creative social worker at the Bronx Defenders who found an Albanian-speaking therapist, I managed to get Arben out of jail. That was the easy part, and all was well for a time. But just three weeks later he was in the office and very agitated. I asked how he was doing, and he began again to complain about the noise from the neighbors. This was a very bad sign, and as visions of actually flammable liquids and front-page headlines in the
New York Post
began to dance about in my head, I had a moment of insight.

      
“Look, Arben,” I said, “I am sorry you can’t sleep, but haven’t you ever heard of earplugs?” He looked at me blankly. “
Earplugs
, Arben . . . little foam things that go inside your ears to block out the sound. They help you sleep.” This was met with utter incomprehension.

      
I sat Arben down, then gave an intern five bucks and told him to run to the store. He was back in ten minutes, and then, like an AIDS counselor in an African refugee camp demonstrating the use of a condom, I carefully, theatrically unwrapped a set of earplugs and showed Arben how to use them.

      
He put them in and slowly turned his head from side to side, his face a mask of wonder and delight.

      
“Go home and try these,” I told him, “and report back to me.” Four years and no arson later, Arben is off probation, done with counseling, holding down a good job, and sleeping very, very soundly.

- - - -
 

      
As I head toward the back of the courtroom, I’m thinking about Long Hair’s deft save. Of course, even really good lawyers occasionally have carefully crafted pleas go awry. Often it’s because clients who are pleading guilty are inclined to minimize their participation when it finally comes time to publicly admit their wrongdoings. Some judges, when they want to see a more severe sentence, will even use this equivocation as an excuse for “bouncing” (refusing to accept) a plea. Yet even when a plea goes down smoothly, a case isn’t over until the sentence is imposed, and sometimes not even then.

      
The more serious the case, the more dramatic the sentencing can be. This is especially true if the client and the victim or their families come face to face. Then the strange polar experiences of the criminal justice system create an almost electric intensity --like a capacitor about to discharge. It is in those moments of confrontation that the human toll of the criminal justice system is most apparent --furious words that fail to bring back dead loved ones; tears that fail to alleviate the harsh sentences that result.

      
No one wins. No one ever does.

      
I experienced this most vividly standing next to Roger as he was being sentenced for killing a man named Wale (pronounced like
Wally
) Faust.

      
We’d been on the verge of trial, at that tricky and subtle point in pretrial negotiations when the defendant most acutely feels the weight of a possible conviction and the People most desperately fear a loss. In the bizarre bazaar of plea-bargaining, there is a price for every crime, a price that takes into account the nature of the case, the strength of the evidence, the record of the offender, and a hundred other little details that lawyers exploit to get the best deal they can for the party they’re representing. In this case, the evidence tying Roger to the crime was not as strong as the district attorney might have liked, and though it certainly didn’t excuse his murder, Wale had been a fairly successful (and rival) drug dealer who had engaged in some bad acts of his own --something that would come into play in an “I shot him because he was gonna shoot me” kind of case. It’s why I was holding the line. Plea-bargaining is about numbers --it always is. That the currency my client is paying in is time only serves to muddy an already opaque moral equation.

      
For months the prosecutors had been insisting on a fifteen-year sentence, and for months I’d refused to consider anything more than ten. In the end, after a final round of posturing, I got eleven years. Of those eleven years, Roger would actually serve just over nine and a third, and since it took me about two years to work out the deal (during which he’d been in jail) it really meant that he had a little more than seven years left to serve. It was a good deal.

      
The sentencing took place on a lazy, overcast afternoon in one of the cavernous courtrooms of the Bronx Supreme Court. Roger, a high-security inmate, was led into the courtroom, shuffling the way that people do when they’re restrained by leg irons. His hands were jammed into long orange tubes called “enhanced restraints.” The tubes are designed to keep handcuffed inmates from being able to use their fingers, and their thick, padded canvas covers everything from the forearm down before being sealed off by special handcuffs that fit over the wrist area and protrude from a little black box (which is in turn attached to a waist chain) that is supposed to enhance the security of the cuffing system itself. There was enough steel on Roger to create a symphony of jangling metal.

      
He greeted me with a smile.

      
“You ready for this?” I asked him, putting my hand gently on his shoulder. Roger nodded. “You’re going to be sentenced to eleven years in prison today,” I reminded him. Another nod.

      
“Everybody ready for sentence?” the judge asked.

      
“Yes, Judge,” I said.

      
“Yes, Judge,” said the ADA, “but the decedent’s family does wish to make a statement.”

      
This is fairly unusual, but the more serious the case, the more likely it is that there will be what is known as a “victim impact statement.” The thing is, victim impact statements in cases in which someone has taken a plea bargain are a charade. No matter what the family says, the judge can’t increase the sentence without allowing the defendant to withdraw the plea --something that almost never happens. Mostly it is a chance for the family to confront the defendant and feel as though the court is listening to them.

      
“Do you object, Mr. Feige?”

      
I could have successfully objected. Without the proper notice, which the DA hadn’t bothered to serve, victim impact statements aren’t permitted. But as with most notice issues, objecting just means adjourning the case and doing the whole thing after the DA sends the proper form. Looking around the courtroom at the decedent’s anxious family, I felt there was no reason to make them come back another day just because the DA was too lazy to send me the notice. It wasn’t going to affect the outcome anyway.

      
“No objection,” I said.

      
“Okay --bring them up.”

      
Wale’s sister stepped up to the podium. Tall and thin, with an elegant face and stylish glasses, she placed a large photograph of her dead brother on the table facing my client and me, and then, reading from papers clutched in trembling hands, she began to speak in a clear, piercing voice.

      
“You took my brother,” she said, so quietly I had to strain to hear her. “You gave him the death penalty, and all you’ll get is eleven years. Eleven years of commissary and family visits. Eleven years of life. My brother will never eat again, and the only family visits left for me are with his headstone.”

      
Her still, clear voice began to fill up the courtroom.

      
“You . . . you’ll emerge from prison able to know your son. Wale will never know his child. He will never feel his father’s touch, never know his father’s charm and beauty, never even know what you’ve taken away from him, from me, from my family. I wish you’d gotten life.” She looked hard at Roger, her eyes scanning his face for some sign of apology or explanation. Roger was so trussed up he could barely move, and he stood there returning her gaze with a steady, sympathetic look. “I wish you’d have to suffer some small part of the loss I feel every day of my life,” she said.

      
Standing there, feeling the contemptuous, anguished sweep of her eyes, I found myself moved by the capriciousness of her loss, and I was acutely aware of standing next to the man who had slain her brother --a man about to get the benefit of an extremely good deal that I had negotiated for him. I could feel her disdain --for Roger, for me, for a world that had taken her brother.