by David Feige
“I can’t just let you talk directly to the judge,” she said.
“Well, that’s what I need to do,” I insisted. “This is a matter of life and death.”
That got her attention.
“Why don’t you outline it for me informally, and I’ll take it to the judge,” she suggested, not unreasonably.
“Fine,” I told her.
Two minutes later, reclining in Rivera’s office, I explained to DiMango that I needed to split Omar’s case from his codefendant’s. Pulling out a copy of his old snitch agreement, I outlined the defense that I’d be unable to present if the case went to trial with the codefendant present. Not only did I want a separate trial --I wanted the courtroom sealed during opening arguments, closing statements, and my client’s testimony. DiMango seemed to mull this over for a few minutes. “I’ll get the judge,” she said.
Rivera came in a few minutes later, and after a minute or two of chitchat, the three of us got down to business.
“So, Feige,” Judge Rivera said as he fixed me with his appraising grin, “Patty tells me you want an ex parte severance.”
“Yes, Your Honor.”
“Tell me something, and I’m serious now.” Rivera paused to size me up. “Is this for real, or is this bullshit?”
“Totally real, Your Honor,” I said, handing him the confidential informant agreement. “This is the defense right here, but my client won’t let me present it if the codefendant is present.”
Rivera looked over the agreement and thought for a beat. “So I guess you won’t object to sealing the courtroom for the undercover’s testimony, eh?” he said slyly.
I knew immediately that this was a trap. Prosecutors love to seal the courtroom when an undercover officer testifies --it cloaks the officer in the mystique of cool and dangerous police work, as if the very fact of showing up for trial and facing the defendant is somehow a feat of unprecedented derring-do. Obviously, there are times when undercover work is dangerous and secrecy is reasonable, but prosecutors regularly make the motion to seal the courtroom for tactical rather than security reasons. Not surprisingly, the defense often objects to sealing the courtroom for the undercover’s testimony and insists on what’s known as a Hinton hearing (so named for the case --People v. Hinton --that created the procedure) to determine whether sealing is really necessary. Rivera figured that if I was really going to cross-examine the undercover about my client’s status as a confidential informant, I would also want the courtroom closed. Sometimes all you can do is double your bet. “Judge,” I said levelly, “not only won’t I object to sealing the courtroom for the undercover’s testimony, I’ll agree to have the entire trial proceed under seal.” Now that’s the kind of thing Rivera might think was cool.
Sure enough, Judge Rivera looked intrigued. He paused for a moment to process this rather novel idea, and then, having made up his mind, he nodded sharply at DiMango.
“I will make it so!” he declared.
The case dragged on for weeks, with the prosecutors nearly apoplectic at the idea that we were alleging a cop conspiracy designed to punish Omar for his refusal to snitch. It was a bright May Tuesday when the jury went out, and it was still Tuesday when they returned, after only a few hours of deliberation. As Omar and I stood to face the verdict, my heart was pounding and I was trying hard not to hyperventilate. Omar looked cool as a cucumber. On every count they said the same thing: “Not guilty.” In the rest of my career, I’d only win one other buy-andbust where there was both stash and cash.
- - - -
I open the door to corrections and step into the well. Because of the late hour, the well is far more crowded than the courtroom. Most of the people at liberty have already been seen, those who are incarcerated more likely left for last.
“Yo, Yo, Yo, it’s the white Johnnie Cochran,” Malik yells through the bars of his cell as I step through the second locked wire-mesh door. The other inmates crack up.
“You a private lawyer?” one of them asks me.
Before I can answer, Malik pipes up. “Naw, man, he a Bronx Defender. What’s up with my case, B?”
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 helple
ssly 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.