INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice

by David Feige

  Unfortunately, once an arrest has been made it can be very, very difficult to get an assistant district attorney to let go. Many domestic violence prosecutors simply won’t dismiss cases even when the complainant wants to, and they will often resort to threats in an attempt to force the alleged victim to go forward. One of their favorite tactics is threatening to take the kids away if a woman doesn’t agree to cooperate with the prosecution. Mercifully, my client’s children are all grown up and out of the house, so neither he nor his wife have to worry --at least about that.

  I give the bridge officer Hector’s name and calendar number, and settle into the seat that would, in other circumstances, be occupied by juror number seven. Leaning back in the comfortable chair, I dig out my files and settle in once more to watch Judge Diane Kiesel in action.

  E l e v e n

  2:52 P.M.

  I’ve barely taken my seat in the jury box when two court officers march in a heavyset man of indeterminate nationality. He’s wearing a blue mechanic’s jumpsuit with a name that I can’t quite read sewn on the lapel. Mr. Blue Jumpsuit has been arrested for violating an order of protection. His hands are cuffed, and he’s shuffling toward the defense table from the back of the courtroom where the pens are. In the dozen steps it takes him to get before the judge, I can see him looking out into the courtroom at a little, round well-coiffed woman who’s seated in the fourth row and who returns his gaze with something like a smile.

  Known elsewhere as “stay-away orders,” orders of protection are granted to alleged victims and witnesses almost automatically. Those charged, as Blue is, with having violated a stay-away order are subject to a jail term of up to a year --more if there are aggravating circumstances. Though a fine idea in principle, orders of protection are constantly abused. It is not at all uncommon for vindictive, angry partners to use orders of protection to wreak havoc on each other --using them as substitutes for eviction orders or citing them to justify ignoring child custody agreements. Almost everyone in the Bronx knows that the easiest way to gain control of a disputed property is to get a judge to issue a stay-away. One little allegation and within twenty-four hours the enjoined party can be barred from the house, allowed only a few hours to collect his things while accompanied by a police officer.

  Just as Blue is taking his place at the defense table next to his legal aid lawyer, his little wife jumps up in the fourth row.

  “He been good!” she says emphatically in heavily accented English. “Everything going great. Please, Judge, I am this man’s wife, and I’m asking you to please let him come home.”

  From what I can gather, Blue has been in jail for a week or more. His lawyer, a lanky, clean-shaven man, is trying to explain to Kiesel why it is time to let him out of jail.

  This, of course, is a futile endeavor.

  “This whole case is a mistake, Judge,” the legal aid lawyer says, his voice calm and persuasive. “My client’s wife has called the DA’s office repeatedly trying to get them to modify the order of protection so that my client can live in the home.”

  “Yes! Yes! I call! I call!” yells the wife from the back.

  “Quiet, ma’am, or you’ll have to clear the courtroom!” an officer barks.

  Legal Aid continues: “There have been no incidents of violence or aggression or anything --and, most important, no one called the police here. My client was arrested based on a routine check of the house. The complainant in this matter tried to explain to the police that she wanted him in the house, and she’s here in court to tell you the same thing.”

  Blue’s wife is nodding --and she’s about to speak again when Kiesel spies her.

  “Sit down,” the judge says sharply. Apparently she’s not interested in what the supposed victim wants.

  “Down, ma’am!” says a court officer. “Sit DOWN!”

  Blue’s wife sits.

  “Is there an offer here?” Kiesel wants to know.

  “The People’s offer is a B and thirty,” says a young assistant DA from the domestic violence unit, conveying the standard offer. She’s wearing tired pumps and a beige Ann Taylor dress.

  “Does your client want it?” Kiesel asks dryly. She couldn’t be less interested in Legal Aid’s explanation.

  “Judge,” Legal Aid replies, “my client wants to go home to his family --where his wife and children want him. I’m asking you to at least listen to this woman --this is what she wants too.”

  Glancing over at Blue’s wife, I realize that her husband is almost certainly in jail because the original assistant DA didn’t bother to return the woman’s calls requesting a modification of the order of protection to allow Blue to live at home.

  “Does he want it?” Kiesel asks sharply.

  “Judge,” Legal Aid tries again valiantly, “she tried to get the order of protection limited.”

  But Kiesel doesn’t care. She’s heard enough. “It’s MY order,” she says. “Theyyyy” --she stretches out the word so the condescension is lost on no one --“don’t get to make those decisions.”

  There is silence in the courtroom. Several people in the audience are shaking their heads and lowering their eyes, evidently astonished. They don’t know Kiesel like I do.

  “So I take it your client doesn’t want the offer?” Kiesel sneers. “Defense motions are due . . .”

  “I’ll waive motions!” Legal Aid declares --averting a disaster that a less-alert lawyer might have fallen for. Motions --for discovery, suppression of evidence, or for almost any other relief in a case --are the bread and butter of most lawyers. At big law firms many so-called litigators never set foot in a courtroom; they’re considered litigators mostly because they negotiate with opposing counsel and file a bunch of motions. But motions practice in the Bronx is usually a futile endeavor, and strange as it may seem, in many cases involving incarcerated clients charged with misdemeanors, just chucking the entire exercise is actually the smart move --not just because it’s futile, but because it’s time consuming, and time is something that indigent, incarcerated clients can ill-afford. Like so much else in Bronx criminal practice, the decision about when to give up motions is about poverty and power.

  Blue is in jail because he doesn’t have $750 --the bail amount set by the arraigning judge. And because he doesn’t, he’ll sit in jail until he pleads guilty or manages to get a trial. Right now, the DA’s office is offering Blue thirty days at Rikers, of which, thanks to the good-time rules of the Department of Corrections, he’ll serve twenty. He’s been in jail for about a week already. If the judge or the DA can stall the case for just two more weeks, Blue will be in the position of staying in jail even longer than he would if he just pled guilty and ate the twenty days right now. Every single lawyer in the courtroom knows this --and so does Kiesel. It is the dirty little secret of the adjournment game. Legal Aid is willing to waive motions precisely because he knows this too. The motions schedule is a Kiesel power play designed to punish Blue for not playing along with the plea-bargain game.

  “Judge, the complainant is here in court.” Legal Aid is really giving it a go. “Would you consider reducing the bail?” If Kiesel were to reduce the bail, Blue could get out, and then, with time no longer of the essence, the case would inch toward a trial at which, when his wife didn’t show up, the charges would almost certainly be dismissed.

  Fat chance.

  “Do you want a motions schedule or not?” Kiesel asks, ignoring the request altogether.

  Blue’s eyes are darting between Kiesel and his lawyer, trying to follow the action, but as with so much of the rapid back-andforth in criminal court, the lawyers and judges are talking in a code larded with implications that aren’t obvious to the casual listener and certainly not to an incarcerated client who hasn’t even had a chance to talk to his lawyer before getting marched in.

  “I’m waiving motions --I want an immediate trial,” Legal Aid says, defiantly holding his ground.

  “Judge,” says the ADA, affecting an almost bored tone, “the People
aren’t ready today.” She too is looking to delay the case, to force the plea.

  “Their witness is right here in court!” Legal Aid protests.

  “We want time to investigate,” the ADA says utterly mendaciously.

  “Fine,” says Kiesel, announcing a date three weeks away.

  “Judge,” groans an exasperated Legal Aid, “that’s too long. I’m waiving motions so I can get an early trial date.”

  “The trial parts are very busy,” replies Kiesel dryly. “Can I get an earlier date?”

  I have to hand it to Legal Aid --he’s doing everything right; it’s just that he’s in Judge Kiesel’s courtroom.

  Perversely, she offers a date two days earlier than the one she previously announced, a worthless concession.

  “Judge,” Legal Aid implores, “adjourning the case even that long will be penalizing my client for going to trial.”

  “Which date, Counselor?”

  Kiesel’s eyes are cold, and she has the fingers going now. It’s abundantly clear that things are about to get much worse for Blue if Legal Aid keeps fighting. There is a pause, just for a heartbeat, as Legal Aid considers his options. This is too long for Kiesel.

  “Case is adjourned,” she says flatly, giving the latter of the two options as the date to reconvene.

  Legal Aid looks stricken --he’s just been whupped. He leans over to his client and starts whispering. Sensing what is happening, the wife in the audience begins to cry.

  “Step outside, ma’am,” a court officer tells her.

  I can’t hear exactly what is transpiring, but I’ve been in this position hundreds of times and know by heart the horrible explanation. I’ve delivered it myself dozens and dozens of times:

  “I’ve been trying to get you out of jail. The judge knows that your wife wants you home. She knows your wife is here, and she knows that you tried to get the order of protection changed. She doesn’t care. The DA is offering you thirty days in jail if you plead guilty --that means you’ll be out in twenty days including the time you’ve already been in. I’ve already asked for a trial, but the problem is, the judge won’t give us a trial date until the seventeenth --and that’s more than two weeks away. I’m not defending this, but the reality is that if the case were to go to trial that day, which is unlikely, you will already have been in for more time than if you just plead guilty right now. I’m not defending it; I’m just telling you that unless you think you can find someone to put up the bail money, you’re gonna be in here for at least another few weeks, and longer if we keep pushing for a trial.”

  There are few things I hate more than giving this speech. It confirms everything my clients think about the system --that it’s coercive and unfair, and that within it the deck is stacked against them because they’re poor. They’re right, of course, and it galls me to have to admit that I am complicit in this abuse and worse, that despite my fancy law degree and my big vocabulary and my tough-guy posturing, I’m a weak little pawn in a very ugly system and there is not a goddamn thing I can do to stop them from getting fucked.

  Worse still, of course, is that Blue, like so many of my clients, is about to wind up with a permanent criminal record, which will, in turn, almost certainly mean that he’ll lose his job and have a very hard time getting a new one unless he lies about the conviction. Still, almost anything is better than more time in jail.

  Blue shrugs the kind of defeated shrug I’ve seen a thousand times over the years, his head shaking just a little bit, amazed at his predicament.

  “Fine” is all he says.

  Kiesel has been staring off into space during the forty-five seconds it takes to have the brutal talk with Blue, her fingers thrumming an impatient rhythm on the bench as she waits for what we all know is coming.

  “Your Honor,” says Legal Aid, using a term clearly inapplicable to the situation at hand, “we have a disposition.”

  Kiesel barely reacts, and Legal Aid continues: “After consultation with my client he’s authorized me to enter a plea of guilty on his behalf to attempted criminal contempt in the second degree. He does that with the understanding that he’ll be sentenced to thirty days in jail.”

  Kiesel is still staring out over everyone, her eyes focused on an imaginary spot somewhere on the back wall. “And abide by a full, permanent order of protection,” she adds distractedly.

  Blue winces, and I’m briefly glad that the wife is outside --she came to court to try to explain that she wanted her husband home and that she didn’t want or need an order of protection. Now, not only is her husband going to jail, the judge is reissuing an order barring him from his home, his wife, and his children for another year.

  “J-Judge,” Legal Aid stammers, “the complainant doesn’t want the full order of protection. She’s come to court to explain that --she’s made it clear to me and to the DA’s office and tried to make it clear to you that she wants him home. Please, just limit it so that he can live at home.”

  “Do the people want a limited order of protection?” Kiesel says, glancing over at the young ADA who has remained impassive throughout the proceedings.

  “No, Judge,” says the ADA, “my file says full.”

  “Well, then,” says Kiesel, looking back at Legal Aid with a contemptuous look, “would your client like to withdraw his plea?”

  Blue looks as if he’s going to cry. From the side I can see his shoulders start to heave, jerking his hands, cuffed behind his back, up and down. His head is bowed, and it’s clear he’s breathing deeply just trying to keep control of himself.

  “Just get me out of here,” he mutters audibly to Legal Aid, though whether that means he wants the plea or just wants to go back to his cell is unclear. Legal Aid leans in close, and I can see Blue shaking his head. “Just do it,” he says. “Get it over with.”

  “No, Judge,” Legal Aid says flatly, “my client wants to plead.”

  “Sir,” Kiesel says to Blue --she’s doing that amazing trick of talking to a defendant without really looking at him --“your lawyer tells me that you want to plead guilty to this criminal offense; is that what you wish to do?”

  Blue just shakes his head in disbelief.

  “You have to say yes,” Legal Aid instructs.

  “Yes,” says Blue, his shoulders shaking, his breathing quick and shallow.

  “Has anybody forced you or threatened you to plead guilty?” Kiesel asks in the same flat tone.

  “No,” mutters Legal Aid under his breath.

  “No,” murmurs Blue, though everyone in the courtroom knows it’s not true, and I know that only 750 bucks would have made the difference --the essential divide not race but cash. Had Blue made bail this whole thing would have gone away, or at worst he would have been offered a plea to a noncriminal offense with no jail time and a limited order of protection.

  “Fine,” says Kiesel, “I accept your guilty plea and sentence you to thirty days in jail and a conditional discharge, the special condition of which is that you abide by a full, permanent order of protection --that means you can have no contact with your wife, none whatsoever. It doesn’t matter whether she wants to see you or not. I’m ordering you to stay away from her. Is that clear?” I could swear there is a sadistic sparkle in Kiesel’s eyes.

  Blue just nods, but Kiesel wants an answer.

  “Clear?” she asks again.

  “Yes!” hisses Legal Aid.

  “Yes,” says Blue.

  “Good,” says Kiesel. “Next case, please.”

  - - - -

  I’m getting nervous. Cassandra and Najid are waiting downstairs, and I still have Jaron on the main floor. The clock is edging past 3:00, and that leaves less than an hour to get everything done since most judges like to be off the bench by 3:45 or so. Unfortunately, there’s still one more case before mine.

  I decide to hang tight.

  Glancing back at Hector, still sitting in the second row, I give him the “just be patient” sign --palms down, fingers spread, gesturing gently toward t
he floor as if to say, Don’t worry, be calm, it won’t be long now. Hector rolls his eyes just a little and shakes his head incredulously --every time he comes to court, he can’t believe what he sees.

  Neither can I sometimes.

  I swivel my head back toward Kiesel just as a thick dark-skinned man with long, twisted dreadlocks comes shuffling out.

  “Add-on to the calendar,” announces the bridge officer calling the case.

  Being an add-on almost certainly means that Dreads has been in jail for a short time. Adding a case onto the calendar means that it wasn’t normally adjourned last time, so he’s either coming straight from a different courtroom or his adjournment was so short that the case didn’t make it onto the daily lists compiled by the central clerk’s office. As it turns out, this is Dreads’s third courtroom for the day. Dreads had been out on bail the last time he came to court a few weeks ago. Like many others, he’d spent much of the day in AP-10 waiting for his case to be called. When the time finally came, Dreads had explained that he needed to run to pick up his kids from school.