“He should have stopped to help.” Sentence number two.
A good criminal attorney goes to the scene to see what their client saw. A very good one crawls around in their client’s brain and tries to make reason out of the unreasonable, find the thinking behind the unthinkable. Francisco Duarte knew he should have stopped; he confirmed as much by turning himself in less than an hour after the accident, just as Megan O’Hara was being pronounced dead at University Hospital.
When the family came to retain me, I saw who he came from. Good people, humble and now shamed, embarrassed that their son took a life and ran. They sat in front of me, the father in a forest-green janitor’s uniform from a local Catholic school, the mother in the smock of a neighborhood day care center. Their hands were clutched, their heads bowed. I was a man in a suit. An authority. An educated person. Someone to respect. The mother and father, unable to pronounce my Italian surname, respectfully called me “Mr. Mike.” Their daughter, who spoke English as well as my own sons, got “Mr. Tricarico” right on the first try.
• • •
My first question to his family was whether Francisco felt remorse, my mind already racing ahead to possible mitigating circumstances. “After all,” I said, leading them, “the young woman shouldn’t have been in the intersection.” I wanted to gauge their son’s sense of fault and responsibility.
His parents nodded, understanding the question.
“Sí, Mr. Mike. Se siente terrible. Nunca duerme, llora toda la noche,” his mother, Consuelo, answered, looking at me through teary eyes as if I understood.
I turned to the daughter, Maria, for help.
“My mother says, ‘He feels terrible. He never sleeps, he cries all night,’ ” she said.
“Nunca dormimos tampoco, sabiendo que está en ese lugar, Mr. Mike,” the mother added as the father, Enrico, nodded in agreement.
“We never sleep, either, knowing he’s in that place,” Maria said. “When Frank turned himself in, the police called ICE and they came and got him.”
“Frank? He goes by Frank?” I asked.
“Yes,” Maria said. “To everybody but my parents.”
As I momentarily processed this Americanization of Francisco to Frank, Maria cut the thought short.
“There’s a problem, Mr. Tricarico,” she said. “A big problem.”
“You have no papers,” I said.
“Sí, sí, Mr. Mike,” the parents said in unison.
“We are undocumented,” Maria said. “Except for my younger brother and sister. They were born here.”
• • •
Several years ago I visited Ellis Island with my boys. We found my grandfather’s name inscribed on the wall, paid for by a donation from my uncle.
But what moved me more were the grainy black-and-white photographs inside the museum. There were no smiles on the old immigrant faces; just shock and exhaustion. If they were at all optimistic, it was masked by a grim countenance, as if they knew the task of building a new life here was going to be laborious and joyless.
I saw this look now on the faces of the Duarte family as I explained to them that my job was to try to keep Frank Duarte out of jail. There was nothing I could do to keep him in the country. They needed an immigration lawyer for that.
“We have one,” Maria said. “There’s nothing she can do. Frank has already confessed.”
• • •
Sometimes a defense attorney’s task is not about raising questions or offering theories that make intellectual room for reasonable doubt. It’s about finding room for mitigation. That’s the legal term. In the old days, they called it “the mercy of the court.” I would have to find it for Frank Duarte to keep him out of prison for a significant term, because the facts were not in dispute. Yes, he confessed to the police, in the most Catholic sense, after he turned himself in—a full, tearful admission, a recorded account of the events, with painstaking accuracy. He did this without an attorney present, knowing he risked prison, and knowing he would never absolve himself, whether he came forward or not. He would live with what he’d done, either way.
Frank was charged, at first, with leaving the scene of an accident after giving the police his statement. The most incriminating detail was that he thought he had hit a large black dog, until he saw the lifeless form of a woman in his rearview mirror and heard the screams of her friend, who ran back to the curb. Then he panicked and took off.
According to New Jersey statute 39:4-129, leaving the scene of an accident where bodily harm may have occurred is an indictable offense, known in the common legal lexicon as a felony. Under President Obama’s “Immigration Accountability” executive order, local police had no choice but to call federal immigration officials, even before word of Ms. O’Hara’s death came and “vehicular homicide” was added. Frank would be detained by immigration officials until trial. If found guilty, he would be deported. This was a moot point; he had confessed. I would have to try to undo the confession.
“Where is he?” I asked Maria. “Please don’t tell me Essex.”
“Yes,” she said. “The county jail.”
And with those words, his mother began to weep as only grieving mothers can.
• • •
There are two federal immigration detention centers in the Newark area. One is in Elizabeth, which borders Newark and is 60 percent Hispanic. The other is the leased wing of the Essex County jail.
While county inmates and federal detainees are generally separated, it’s still a prison. The cell doors slam shut, yard time is restricted, and the ominous security checkpoints, which require government photo IDs of some type, keep immigrant families away.
“County jail” is a soft description. It conjures up an image of the town drunk sleeping it off under the care of a local deputy. Mayberry, R.F.D., for my generation.
Essex County jail is no sweet vanilla sitcom. It’s a dark, roiling sea of anger and hatred, frightening in ways only the men incarcerated there can understand. Street gangs war inside; lineal derivatives of blues and reds battle in orange jumpsuits. In Newark, they have names like Grape Street (Crips) and Red Breed Gorillas (Bloods). The Southside Cartel (Bloods) supplanted Sex, Money, and Murder (also Bloods) as the city’s most vicious gang after a prolonged street war. The Latin Kings brawl with the blacks and MS-13, a gang with Central American drug cartel beginnings. Men are beaten and stabbed in this prison. Some commit suicide. Drugs feed the hostility of sociopaths. Men who have murdered have no compunctions about murdering again, nor do rapists about raping. It is not a place for a young man like Frank Duarte, who left the scene of a tragic accident. If he had only stopped.
And the more I learned about Megan O’Hara, the more I feared for Frank Duarte. I had to be ready with a narrative to defuse the media’s fixation on the heightened Trump Era rage against “illegals.” I didn’t want Frank’s face on FOX News. I didn’t want some inmate sticking him.
• • •
“If I had a daughter, I would want her to be like Megan O’Hara.” I wrote this down to use at some point in court—opening or closing, or sentencing—after researching the young woman.
It was, at first, a defensive move. If I got press inquiries about Frank, I would switch the focus to Megan O’Hara. The real story, I would say, is the loss of this very special young woman. And very special she was. She was a leader. A high school class president, a field hockey team captain, then on to Vassar, where she was majoring in nonprofit management, of the humanitarian sort. She did internships and volunteer work at Church World Service in Poughkeepsie, an agency devoted to helping refugees and immigrants find their footing in their new American home. She marshaled the student volunteer force for the Dutchess County Community Action Agency and learned Spanish to better communicate with the clients.
I learned this from her obituary and Facebook page, which contained more than five hundred messages of heartfelt condolences. I read every one, and realized this young woman impacted every life she touched. A
nd now mine.
She came from an affluent family in Short Hills, one of the wealthiest suburbs in New Jersey, and one evening at twilight, I drove by her house for only one reason: to look for a dark room and connect to her parents’ grief and anguish. The whole house was warmly lit except for a black corner over the attached garage.
I parked and sat for a moment. She was twenty-two, in her senior year at Vassar, home for the weekend when she was hit. Her parents had raised her to be brilliant and sent her into the world to share her gifts, only to have her die in the most rudimentary way, not heeding the advice every child has drummed into their heads: look both ways.
From the winding road on the eastern slope of the Watchung Mountains where she lived, there are views of the Manhattan skyline and the industrial basin of New Jersey, the turnpike corridor of power plants and shipping ports. Smokestacks and container cranes rise from landscape like skeletal skyscrapers. At Ports Newark and Elizabeth, the freight landing for the entire New York metropolitan area, the cranes are painted in red-and-white horizontal stripes. Against the backdrop of a clear blue September sky, they stand like an American welcome to merchant seamen from all over the world, not unlike the Statue of Liberty and Ellis Island, a scant four miles away.
I mention September because that’s when the accident occurred—September of 2016, during the full-throated build-a-wall rhetoric of the election campaign. In Megan O’Hara’s neighborhood, political signs were all but absent. The wealthy abstain. They maintain decorum. They speak with their wallets.
The panoramic view from Megan O’Hara’s bedroom window included not only the distant neighborhood where Frank Duarte lived but also the detention center where he was now housed in the industrial port section, surrounded by storage yards, where shipping containers were stacked like great pyramids, and towing companies, where acres of junked cars came to rust.
• • •
The early history of human settlement is shaped by the earth’s geology, geography, and climate. Once survival was conquered, only the man-made forces of politics and economy made habitable places inhospitable.
I am, by ancestry, a southern Italian. Man’s presence on the land is as ancient as war itself; the boot has been the crossroads of civilizations since the Paleolithic Age. It was conquered by invading armies of Greeks and Romans and Lombards and Normans, right through to the British and Americans in the Second World War.
As such, southern Italians are, by nature, distrustful and resistant to authority, be it a king, a landowner (including the church), or an elected government.
Somewhere in my DNA, there lies the reason I am a defense attorney.
It’s also why my grandfather came to the United States as an illegal immigrant in 1916.
• • •
When Italy declared war on Austria-Hungary in 1915, my grandfather could have been forgiven for thinking it was a northern Italian border land-grab that southern Italians shouldn’t die for. Italy was unified just forty years before his birth, so allegiance to the new country was in its infancy.
The family stories about him were colorful and comic, but there was a dark hue to them, an undercoat of shame.
He grew up in a Basilicata farm town called Brienza, and his family worked olive groves on land owned by the Catholic Church. My grandmother’s family lived nearby, and they courted as teenagers. Her uncles were among the first wave of the great southern Italian migration that emptied out half the boot from the 1880s until after the Second World War. My grandmother came to the United States with her parents in 1914, and she left her childhood sweetheart behind.
When Italy went to war on its northern border, my grandfather ignored his draft notice. Two army officers were dispatched to get him, but he jumped out the back window of the family farmhouse with a dress belonging to one of his sisters. He threw it on, rolled up his pant legs, and headed for the olive grove. When the officers checked the property, they saw only a woman working in the field. This went on for weeks, prior to the Isonzo Offensive, when one hundred thousand farm boys like my grandfather were sent with little training to the mountains of present-day Slovenia. Sixty thousand were slaughtered. My grandfather was determined not to be one of them.
He wrote to my grandmother, offering a marriage proposal. She conspired to send him the identification papers of one of her uncles. That man was twenty years his senior, so my grandfather grayed his hair by rubbing talcum powder in it and boarded steerage on the Mauretania. Two weeks later he walked, unaccosted, into America, smelling like diesel oil and a fresh haircut.
They married, and almost thirty years later their oldest son was awarded two Silver Stars, a Bronze Star, and a Purple Heart during the invasion of Sicily as part of General Patton’s Seventh Army. He lost part of his trigger hand at Mount Etna but continued on to the mainland, valuable because he spoke the language.
My uncle’s heroic actions helped fast-track his father’s citizenship two years later, no questions asked.
Two men, a father and a son, on different sides of history. The fate of individuals cannot be divorced from their times.
• • •
The Duarte family landed at Newark airport in 1999 with tourist visas to visit Consuelo’s green card–holding cousin. They never left. Instead, they found menial jobs and an apartment in Newark’s Ironbound section, a Portuguese area of squat wood-frame working-class houses set off from the rest of the town by railroad lines and the ports. The Portuguese came after World War I, supplanting the Germans, Lithuanians, Poles, and Italians who had all labored in the tanneries and other dirty factories of the city’s industrial center.
When the Portuguese migration ended, Brazilians and other South Americans followed, mostly to work as laborers in mom-and-pop construction companies started by Portuguese who themselves began as laborers. That is the American way, the promise of this country since the Mayflower.
Francisco Duarte started kindergarten in 1999 at the Ann Street School, where he became Frank. It was the beginning of his Americanization. By second grade he was fluent in English; by sixth all trace of his accent was gone unless he purposely affected it. Also by then, his two younger siblings had been born, both in the emergency room of Beth Israel Medical Center under charity care. Both were American citizens as a birthright.
By the time big brother Frank entered high school, he forwent his native soccer to play American football and was a wide receiver at East Side High.
I thought of how much had changed since 1999. The terror attacks of 9/11; the wars in Iraq and Afghanistan; the mass shootings that came with greater frequency; the economic recession; the sport of political divisiveness, led by media and party operatives who exploit our differences rather than explore our similarities. Through all this turmoil, immigration was either at the center or on the periphery of American discontent, depending on what other pressing issue consumed the public’s attention at the moment.
In 2012, Obama’s Deferred Action for Childhood Arrivals executive order shielded kids brought into the country illegally from deportation. He did this because a warring Congress couldn’t pass a law.
But in 2014, under growing anti-immigrant sentiment, Obama signed the “Immigration Accountability” order. It carried the slogan Deporting Felons, Not Families.
Not quite.
Not for Frank Duarte.
In September 2016, with chants of “Build a wall” cascading around Donald Trump like victory confetti, Frank Duarte could not escape his times. Not when his life tragically intersected with Megan O’Hara’s.
• • •
Behind the thick glass windows of Essex County jail, the Latino men in the booths had the same look on their faces as the people in the old photos at Ellis Island: stunned indifference, eyes and thoughts worlds away. Most were silent on their end of the intercom phones, quiet as a still picture. The intake and outtake of American history, 140 years apart.
On my side, hushed Spanish chattering from wives, parents, and lawyers broke the v
oid of silence.
At booth 48, Frank Duarte waited. I sat down, and he picked up the intercom phone on the other side of the glass. My first thought, honestly, was that Frank Duarte was every bit as Caucasian as Megan O’Hara. My own olive skin was darker than his. Somewhere hidden in his family tree must have been Germans or Poles who immigrated to Paraguay from as far back as the 1880s. America, we’re led to believe, has a lock on immigration. It does not.
Frank was no more than a boy, only a man by legal definition. His jail beard growth was scattered and soft, so light in color that the circles under his eyes were darker than his hair. After some small talk about his conditions and the food, tears came to his eyes.
“Mr. Tricarico?”
“Yes?”
“I’m sorry. So sorry. How do I tell her parents I’m sorry? That’s something I have to do.”
“I don’t recommend that, son,” I said. “I’m exploring ways to make your confession inadmissible—to get it thrown out—because you didn’t have an attorney present. Writing a letter to her parents would be another form of admissible evidence, like a second confession.”
“Father Ramon said contrition is the only way I’ll get God’s forgiveness.”
“Son, with all due respect, God’s forgiveness may keep you out of hell, but it won’t keep you out of prison,” I said. “Do you want to spend ten to fifteen years in a place like this?”
“I did something horrible,” he said.
“It was an accident.”
“Not the part about running away.” He looked down. “I was a coward.”
Many times in my line of work, I’m asked how I can defend killers, sexual predators, lowlifes, and skels with a clear conscience. My stock reply is, “I don’t defend the person, I defend the system.”
But Frank Duarte was on the unforgiving side of the system, the shit end of the stick. As a person, he needed defending.
“Why did you run away?” I asked.
“I was scared. All this talk about illegals,” he said. “I was afraid of exactly this. Ending up here. Getting deported.”
It Occurs to Me That I Am America Page 11