INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (37 page)

      
“Yo, listen up!” I call out in my loudest tough-guy voice. “I’m gonna call out some names. If you hear your name, you let me know --if you don’t, don’t ask me. These are the only cases I’ve got right now, and I’m gonna try to bust as many of you outta here tonight as I can, but I spend the whole night saying ‘no, I ain’t got your case yet,’ then someone’s gonna wind up sleeping here tonight who shoulda been going home --everybody understand?”

      
There is a chorus of “you got it,” and I start calling out the names.

      
My very first client of the evening is a man charged with possession of a crack pipe. His lips are blistered, and much of his body is covered with lesions. He has a massive record --three felonies and three dozen misdemeanors. I ask him if he knows what he is charged with.

      
“Of course,” he tells me quietly but contemptuously. “Look, man, I only got a few months left --my T-cell count is down to nine, and the drugs ain’t working for me.” He tosses his HIV clinic card at me with a look of quiet resignation. “There’s not much joy left for me, and truth is, I like getting high. I just want to be left alone to do that while I’m still here. Just get me out, please.”

      
I do. He gets time served, I hand him subway fare, and by the time I turn around, he is gone.

      
Next is a sad older man who hasn’t been arrested in twenty years but went up to a police officer the other day out of the blue and allegedly tried to grab his gun. It seems it might have been a sad attempt at suicide. The cops certainly saw it this way: they carted him off to Bellevue, where he was given Zoloft for his depression. Then they hauled him to court, where despite my argument and the obviousness of his condition, Dawson sets bail.

      
I’ve got a fourteen-year-old who allegedly burgled the apartment next to where his grandmother lives. He and his cousin allegedly broke in, beat the old man, and rummaged through his stuff. The old man restrained them until the cops came.

      
There’s a guy named Rodman (his first name), about six foot six with dark skin, prominent lips, and hair dyed orange. A cop was trying to arrest a woman when Rodman stepped in, saying, “If you arrest her, you’ll have to arrest me too.” The cops obliged. On my way back to interview another client, Jason stops me.

      
“Check it out,” he says, pointing out a stinking pile of bloody vomit in the corner.

      
“Go tell one of the cops,” I tell him.

      
“Yeah, okay,” the cop grunts when Jason informs him about the barf. All night long people track it around the cells.

      
By the time I’ve arraigned the first five cases, the basket is full of new ones, and grabbing another dozen or so, I head back to the pens to do some interviews. Most of this stack are “disposables,” cases that, with Dawson on the bench, are going away tonight: three or four prostitutes who should get time served, three more weed cases that should all be reduced to traffic ticket–like violations, a few trespass cases that should never have been brought in the first place, and a train hop or two. Many of the clients have records already, some are in the system for the first time, and all of them get a sit-down with me that ranges from ninety seconds to about ten minutes.

      
Finally, just before 9:00, a parolee comes before the judge. He desperately needs a plea to disorderly conduct so as to avoid a parole violation. They offer him one on the condition he perform five days of community service. It has been a long day, and before the plea is entered, he looks over, pained, at the assistant district attorney.

      
“Five?” he says incredulously. “Five for a bag a weed? How ’bout three?”

      
The judge and court personnel smile, this being the perfect parody of what defense lawyers do all the time.

      
The assistant DA looks over and says in a thick Bronx accent, “Eeeh, you wanna make a deal with me?”

      
“Yeah,” the guy says definitively. “I work, how ’bout a fine?”

      
“How much would you like to pay, sir?” asks the ADA, playing along happily now.

      
“How ’bout a hundred dollars?” says the guy.

      
“Done,” says the ADA, turning toward the bench where the judge is laughing out loud now.

      
“Your Honor, we have a disposition of this very important matter.”

      
The parolee gets his fine and his disorderly conduct, and he leaves a happy customer.

      
It’s nearly time for the dinner break. The pens in the back are still stuffed with people hoping to get out. And despite the fact that we’ve done more than thirty cases, it feels as though we’ve barely made a dent.

      
The temperature has dropped considerably, and our breath fogs as we hit the far side of the courthouse’s revolving doors. Just about the only culinary options available at this hour are the food court across the way, the
cuchifritos
across the concourse, and even farther, way down by the stadium, two miserable diners. We’re feeling a bit rebellious: Jason is fuming about a client who should have been let out (must have happened while I was in back interviewing), Robin hates the food court, and Aaron says he’s in the mood for decent food as well. All four of us have been working for nearly twelve hours, and everyone could use a little break. Night court rarely resumes promptly after dinner, we muse, and besides, the system isn’t too packed. “What the hell,” we say as we pile into Robin’s old Volvo and head across to East Harlem for a decent meal.

S i x t e e n

10:18 P.M.

      
We’re back in the Bronx less than ninety minutes later, and the parade of cases and clients resumes. I go back to interview some kid charged with jumping a turnstile. At the bars, just about to call out his name, I hear a female cop with a bad attitude saying, “I smell crack, do you smell crack?” I don’t respond.

      
“Yo! Who the
FUCK
is smoking crack in my cell?”

      
Sure enough, a client who had just pled guilty is smoking crack back in the cell. He’s charged with another misdemeanor.

      
I sit down across from a handsome, smiling Rasta with thick, snaking dreads that seem to pop out of his head at crazy angles.

      
“Ja, mon, I know about da case,” he says as I introduce myself. “I smoke-a de weed --das wha dis is, right?”

      
“Right.”

      
“Okay, you tink you gonna get me out, yeah?”

      
“Well,” I say cautiously, “you do have three prior marijuana sales.”

      
“I know dat, mon --but you get me out, right?”

      
“Well, I certainly think it’s possible since this time you were just smoking rather than selling.”

      
“Dat’s right, mon --jes smoking da weed, das all.”

      
I make what amounts to the “jes smoking da weed” argument to Dawson, and the guy gets a conditional discharge. Later, just outside the courtroom, he stops me.

      
“You know, I love the weed, mon. I gotta smoke it, you know. But liar mon, you tink I con clear up my record?”

      
“Steven,” I say, “you have a TERRIBLE record. How ’bout you just try to concentrate on not getting arrested for a few months?”

      
“Good point, mon,” he says, with a vigorous shake of his head. His dreadlocks fly around, and he flashes me his dazzling smile. “I like you. You a good liar, mon. I tink yous a undercover brother.”

      
“Thank you, Steven. Go home. Take care of yourself, okay?”

      
“You got it, mon.”

      
Another pile.

      
There’s a park piss gone wild, escalating into an alleged assault on a police officer and resisting arrest, and after that, a young Asian woman arrested for supposedly flicking a cigarette in the direction of a cop. Never arrested before, she found herself handcuffed and incarcerated for more than thirty hours. When I find her in the cell she is crying hysterically. All the other women, most with rap sheets, beg me to take her case first and get her out.

      
I speak to her for a while, trying to calm her down. I explain that we can fight the case and file a complaint against the officer, and that I think she should file a civil suit against the police as well. I burn a favor and get the case called almost immediately. It doesn’t even take much argument before Dawson dismisses the obviously fraudulent charges. The woman starts sobbing all over again, and I walk her to the back of the courtroom toward her family, all of whom await her release. But as I console her and urge them to file a lawsuit, I know that they’ll never do so. “We don’t want to confront the police,” they explain. “We’re afraid of them.”

      
Another sad truth of the system: no one follows up. No one ever does. It’s why police brutality persists. The humiliation and sense of powerlessness that come with that first exposure to the handcuffs are so extreme that all anyone wants to do afterward is make it stop, get it over with, and forget all about it. My clients fear retaliation from the boys in blue if they speak up, and the thought of fighting back, especially by prolonging the case or filing a lawsuit and engaging in protracted litigation, seems so daunting that most of my clients would rather get the case over with --sometimes even pleading guilty to lesser charges just to never have to come back to the courthouse again.

      
The industrial clock above the worn rail that separates the well of the courtroom from the spectator sections reads 1:06 a.m. when the last case of the night is called. It is quickly disposed of, and the judge makes ready to call it a night. Like Robin and the rest of the Bronx Defender crew, I’ve been going for fifteen hours, and I could use a break.

      
There are groans from the audience when the court officer declares, “AR-2 stands adjourned until tomorrow morning at nine. Please exit the courtroom.” Dozens of people are still sitting, waiting anxiously for their loved ones to see the judge. They have been tugging on my sleeve for hours.

      
“Lawyer, lawyer, excuse me, Mr. Lawyer,” they implore me, or anyone else who will listen.

      
“Do you know when my son is going to be seen?”

      
“Can you tell me if John Franks is coming through?”

      
“I’m looking for my mother. . . .”

      
Slaves to the procession of paperwork controlled by the cops and the clerks, we rarely have good answers for them, and so they sit, nights and days, watching the parade of people coming before the judge, waiting, hoping that one of them will be theirs, hoping that everything will be okay, that their friend, lover, son, or mother will come home, or that their lawyer will be able at least to explain what the hell happened.

      
The anxious spectators are herded out into the hallway. There, in the wee hours of the morning, the confusion and frustration are compounded by the dawning realization that their friends or family members are about to spend another night in a jail cell. There is little I can do or say to make this any better for anyone, but I often try --at least to explain that they shouldn’t actually come back at 9:00 a.m., that in reality few people get seen before 10:00 a.m., or that the judge tomorrow morning is even better than the night court judge, and though it means waiting another night, it also improves the chances that someone will be released.

      
It’s time to go home.

- - - -
 

      
With the area around the criminal courthouse deserted, the drive back is usually quick and painless, the Harlem streetscapes gliding by in sodium-lit monotony. On the cell phone I fume about the injustice of the evening to my West Coast friends. It can take an hour or so to calm down enough to go to sleep, and I often stop for a drink to nurse the process along.

      
There is a certain comfort in the regularity of the people who populate the uncomfortable bars I prefer after night court --they’re whiskey drinkers who have worked a long day rather than cosmopolitan sippers who’ve had a good lunch. But even with the whiskey it is hard to forget the voices of the evening --the kids desperate for freedom; the women in the throes of heroin detox; the families waiting and praying outside, confused and apprehensive, wishing someone, anyone, could explain to them what was going on, where their loved one is, what’s going to happen.

      
It’s often over a late-night drink that the question of the struggle pops up. Is it really worth all this? There’s not a hell of a lot of glamour in being a public defender, and God knows it ain’t the money. And being treated like the help day in and day out can get a bit tiresome. To make matters worse, we spend all day losing. We public defenders are a strange breed: passionate people spending ourselves in a Sisyphean struggle for justice in a system rigged to crush us.

      
It doesn’t make a lot of sense. Not when Alton, the sixteenyear-old kid from the group home who has never been arrested before in his life, is going to spend the week at Rikers for stealing some film and a diet soda. Not when Judge Brigantti-Hughes sets bail on three different drug cases that I know with absolute certainty will be quickly dismissed on the next court date. Not when Judge Sussman sends a workingman to jail for spousal abuse despite the audible pleas from his wife: “Please, he’s never done it before. I’m fine. Please, I love him, he’ll lose his job. Please!” she cries, until the court officers shout her down and drag her from the courtroom, and Sussman, without batting an eye, sets bail that neither he nor she can make, costing him his job and their only source of income. Two months later they will be evicted for nonpayment of rent and become homeless. When the wife refuses thereafter to cooperate with the prosecution, the assistant district attorney will call the Administration for Child Welfare, and they’ll lose their child too --another kid ripped from his parents and placed for six scarring months in the foster care system, which in turn produces, fifteen years later, in all likelihood, another grim-faced client, another kid for whom the system is the enemy, who has never gotten a fair shake and never believes he’ll get one, who knows with every fiber of his being that the system is a trap and that the lawyers sent in to help him are really just part of that same monster.

      
It is because success is so often elusive that the essential challenge in much of public defender work is finding lasting satisfaction amid constant failure. That’s what Paula Deutsch was trying to teach me all those years ago at Callahan’s: selfishness and selflessness are just two sides of the same coin. “You gotta lawyer for you” means that the narcissistic pleasure of giving doesn’t invalidate the gift. It’s why, even when we lose all the time, even though our arguments fall on deaf ears and our legal brilliance is regularly thwarted by the politics of the criminal justice system, there is something about the struggle of being a public defender that feels right, and makes it easy to sleep well at night. Because as long as every day we give voice to the voiceless and advance the cause of people who don’t believe themselves worth fighting for, it’s easy to feel like a righteous outlaw, like the last bulwark between freedom and incarceration, the last hope of a population that no longer believes in hope or help. And for all the grandiosity that such sentiments entail, that is exactly what public defenders are.

      
Now back to Manhattan, to the Upper West Side, the light dull orange, the city as close to asleep as it ever gets. It is less than five miles from my office to my home. Five miles: two worlds.

      
My neighborhood is full of gourmet-food stores and highend baby clothing shops and, seemingly, a Starbucks on every other block. It is also full of people I could have been: smart lawyers who decided they wanted to spend their time crafting tax loopholes for rich clients worried about their capital gains; smart lawyers who decided they wanted to spend their evenings structuring multibillion-dollar mergers; smart lawyers wearing watches that cost as much as the car they’ve forgotten how to drive.

      
I suppose I could have had an apartment that contained more than one room. Someday I might. For now, I have what I have: the small studio that I return home to after my uptown odyssey. There to greet me: a fridge with ham and alcohol; a stereo system that still knows what cassette tapes are; and my bed, which has never looked so appealing. It has been a long day. I argued over thirty cases before six different judges. Nine clients went to jail or stayed in jail, and about twenty-two went back home. Tomorrow I will argue another five cases before three different judges.

      
Before sleeping, I reach under the bed. There, as it always is --the Ray Hartford file.

      
Ray was that third strike, the case that nearly sent me to the showers for good. Ray was utterly innocent. Charged with the robbery and attempted murder of a gypsy-cab driver, Ray is in prison because I made the mistake of trusting Judge Massaro when he told me with a grave nod that he was “well acquainted with the problems of eyewitness identification.” I believed he was telling me to waive a jury, which is exactly what I insisted on doing. But I erred. Massaro convicted, and he sentenced Ray to fifteen years in prison. Not a night goes by that I don’t touch that file and think of him, alone in his prison cell.

      
There will always be times when I want to hide in the trial suit closet, when I want to chuck it all before my heart breaks for good. I don’t want to end my days red-faced in cardiac arrest on the floor of Moge’s courtroom. But what I still don’t know is when it’s acceptable to turn your back, to walk away from an indefensible system, to close your eyes to injustice, to surrender. What I do know, though, is that while I wonder and until I’m sure, I’ll be uptown.