by David Feige
Watching the drama unfold, I was surprised at my own reaction. There was little question in my mind that Najid was engaged in one of the most heroic acts I’d ever seen. He had a quiet dignity that was almost incomprehensible to me. And with the drizzle, the thrumming of the choppers, and the militaristic block-long lockdown, the whole scene felt strangely cinematic. I was deeply moved by Najid and his conviction --and at the ability of one person to slow down the massive machine of the state.
Yet I was almost equally moved by the fact that the police didn’t break his arms. There are few things that more clearly reveal the knife edge of oppression lurking behind our everyday life than what happens to someone who really resists the steamroller. Somehow, the fact that our society would spend the time, material, and money on a guy who was flamboyantly breaking the law made me love this country profoundly. And the more I watched, as for six hours they pounded and hacksawed away at little Najid and his sleeping dragon, the more impressed I was with our collective tolerance for dissent.
When they finally freed him, when Najid finally stood up, placing his hands demurely behind his back as they cuffed him and marched him down off the roof, a faint smile discernible through the tired lines etched on his face, a little cheer went up from the damp crowd across the street --an acknowledgment that even though, in the final analysis, none of us may be able to stop the colossus, we can all do a lot more than we imagine ourselves capable of.
The Bronx DA saw no romance whatsoever in resistance to authority. Najid was charged with resisting arrest, disorderly conduct, and obstructing governmental administration. Given the flagrant violation of the law, I’d have agreed to a plea if they’d allowed him to do some community service for More Gardens! or for another progressive not-for-profit, but they wouldn’t consider such a proposal. As a result, we’d been fighting his case for well over a year.
Giving Najid a little hug, I apologize for being late and poke my head inside the courtroom to gauge the line.
The place is a zoo.
I sign up the case, scrawling my name and his on the worn clipboard dangling from the courtroom wall. A quick scan of the sign-in sheet makes clear that there are already more than a dozen cases waiting to be called, and that means that I have at least thirty-five minutes to trek to another courtroom and try to get something else done. I apologize to Najid again and tell him to wait --probably for the hundredth time during the pendency of his case.
“Of course,” he says, smiling gently, “don’t worry about it.”
I do worry, though --in fact I often wonder whether fighting the court case is more trying for him than staging the protest was. For him, a day spent in court is a day diverted from the Bronx community, and we’re going on fifteen days wasted.
Ducking across the hall, I peek into AR-2, thinking that if it is empty, I can spring Cassandra right away. It’s packed as well. Judging from the box of court papers, it looks as if Judge Birnbaum will be working until late in the afternoon. I’ve got a half hour, two impossible courtrooms, and two more left to try, the narcotics part and AP-10 --the domestic violence part.
The main elevators in criminal court are constantly overcrowded and so astonishingly slow that it can take fifteen minutes to go ten vertical feet. The stairways are for fire use only and don’t open onto the proper floors anyway, and so, as I often do, I cut through the back of an empty courtroom to stow away on the judge’s elevator.
Upstairs, AP-10 handles exclusively low-level domestic violence and sex cases. It is one of my least-favorite places in criminal court. Measured on an hourly basis, more injustice is perpetuated in AP-10 than in any other place in the criminal courthouse. AP-10 showcases what pissed-off people do to one another after having had the misfortune of having sex: slapping, punching, phone breaking, and decorating the neighborhood with posters such as:
- - - - - - - - - - - - - - -
W A N T E D :
For Child Support
Kareem Williams.
Last seen fucking some whore bitch he pick up.
Like all deadbeat he think he some kind of pimp daddy. He lives off people. And when he get a dollar, he act like he is God. That’s how you can tell he a asshole, not use to shit.
- - - - - - - - - - - - - - -
Because it is accessible only by those vaguely functioning elevators, AP-10 is inconvenient for most lawyers and clients --but it is even worse for incarcerated clients (and there are many of them in that part). Because there are no jail cells on the third floor, jailed defendants almost never get to see their lawyers until they are marched, manacled, into court.
If there is a lesson to AP-10, it is that the absurdly blunt instrument of criminal prosecution is just not up to the task of unraveling the complicated motives and pathological interpersonal dynamics of vindictive people and screwed-up relationships. Every day, AP-10 hosts a parade of people using protective orders as weapons in child custody battles or property disputes, making false allegations against ex-lovers or their new partners, or blackmailing a current lover into being faithful or forking over money. And though there are plenty of real victims and legitimate cases, overall AP-10 is a viper pit of spurious allegations and twisted motivations. In such an environment, calm, reasonable prosecutors and insightful, deliberate judges might be able to competently sift through twisted facts and outrageous allegations. Unfortunately, though, both the assistant district attorneys who populate the part and most of the judges who sit in judgment of the cases see themselves as the saviors of battered women and abused children. While understandable, this savior complex makes an already bad situation far worse, particularly in cases with reluctant complainants or sparse facts. Just as politics makes it nearly impossible for all but the bravest judges to grant reasonable bail, the politics of domestic violence make AP-10 a supercharged and dangerous place to be for victims (particularly those who may want to patch up their relationships) and defendants who are often actually innocent.
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 actual
ly 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.