Although the grandfather’s cardiac crisis seemed at the time the ultimate fluke, soon I would discover that among trial lawyers it was a familiar variant in the canon of mishaps that occurred so frequently as to have been enshrined in the lore and legend of the courtroom. Some view these events as rites of passage for a young lawyer, although their recurrence is likely due to a predictable degree of coincidence in the ways people react to the stress of a trial. In any case, there could not have been a better lesson in the necessity of being ready for any contingency. If anything redeemed that day, it came in the swell of pride I felt when I first introduced myself to the jury—“I am Sonia Sotomayor de Noonan, and I represent the people of the County of New York”—a moment of grace that would repeat, and ground me, at the opening of every subsequent trial I prosecuted.
If my first trial was a cartoon of chaos, my second was a mess of a very different kind. A man had got into an argument with his wife while riding the subway. He chased her screaming off the train, before beating her and then kicking her in the face when she fell to the station platform. A Good Samaritan rushed to intervene, striking the husband with an umbrella, whereupon the defendant punched the Good Samaritan in the face, leaving him with a black eye. As often happens in cases of domestic violence, the wife was unwilling to testify against her husband, but a righteous and determined young prosecutor was not going to let that stand in her way. I subpoenaed the defendant’s wife.
But on the day of the trial, the wife didn’t show. She had a fair excuse; she was in the hospital. But then it became clear that she had scheduled an elective procedure on that day to avoid coming to court. When I learned that she had had an abortion, I felt a terrible rush of sadness and guilt. What had I set in motion by pursuing her? My action could not have reasonably provoked the decision, but by the time violence enters a marriage, often reason has already receded.
Even without the wife’s testimony, however, we got a conviction. The defense attorney was Dawn Cardi, a rookie from the Legal Aid Society in her very first trial. She fumbled as badly as I had in my own maiden voyage, and this time by comparison I seemed like an old hand—pity the poor judge and jury with the likes of us two presenting! There were moments during cross-examination when Dawn seemed to be working for the other side, as when she got the Good Samaritan to repeat his story. Fortunately, there were no heart attacks, but Dawn did suffer the distraction of admission to the bar: while the jury was out for deliberations, she had to run out to attend her swearing-in ceremony. When she had raced back, the jury returned the guilty verdict. But any pleasure I might have derived from my first conviction vanished when we reconvened for sentencing.
“Ms. Cardi, I’m disposed to send your client to jail for a year,” the judge said. The color drained from Dawn’s face, and she began to tremble. I too was thunderstruck in that moment, realizing the terrible thing I’d accomplished.
“You can’t do that!” Dawn sputtered. “He has a job. His family depends on him for support. He’s never had an arrest before in his life. This will destroy him. You can’t put this man in jail!” As Dawn’s nervous verbal torrent flowed on, I was thinking about the abortion and the length this man’s wife had gone to not to be there. And a part of me would have preferred not to have been there either. I have always believed that individuals are ultimately responsible for their own actions, and I have no tolerance for spousal abuse. But I also understood that the defendant would not be the only one bearing the hardship of his punishment. Jail might be a justifiable punishment, and the only absolute insurance against his striking his wife, but it would exact a high price on his whole family.
Dawn trailed off, and the judge looked to me. “I think Ms. Cardi is right,” I heard myself saying, without premeditation, and feigning a self-assurance I wasn’t feeling inside. I acknowledged that putting him in jail would have significant negative consequences for his family. I said that I would be satisfied with probation if Dawn could get him into a treatment program for domestic abuse that required regular attendance and that also checked in on his wife regularly. For a man in his thirties with no prior arrests, I thought that treatment and the imminent threat of jail would be sufficient protection for his wife.
“Find the program,” the judge said to Dawn. And we both breathed a sigh of relief.
Dawn thanked me afterward. She was stunned by my concession, which seemed especially strange for a beginner, given that a prosecutor’s career is built on a reputation for toughness and winning stiff sentences. I was having my own doubts by the time I reported my actions to John Fried, my bureau chief. John heard me out and responded in his typically thoughtful and deliberate way. He noted that he might have done differently himself, since the assault on the Good Samaritan suggested a danger to society, but he acknowledged my reasoning: “You did what you thought was right.” I can’t know if he extended the same trust to everyone who worked under him, but the freedom to exercise my judgment without fear of being disciplined promoted a confidence that helped me grow into the job more quickly.
Dawn and I would cross paths often, as her section at the Legal Aid Society was assigned to my trial bureau. Despite the unofficial rule against fraternization between prosecutors and defense attorneys, we would chat sometimes over brown-bag lunches on a park bench. We’d talk shop: the ins and outs of our cases, the temperaments and tempers of the judges we dealt with, the routine sexism that was an occupational hazard. Eventually, we became friends, and as we did, our conversations often edged into bigger themes that were written between the lines of the daily procedures: the explosion of misdemeanors that seemed more symptomatic of social ills than evidence of criminal natures; the crudeness of the tools the system wielded against complicated problems. We often started at opposite poles of an argument, recognizing that our views were conditioned by personality differences. Dawn was a born public defender, her support of the underdog grounded in a native distrust of authority. I was by nature more the prosecutor, a creature of rules. If the system is broken, my inclination is to fix it rather than to fight it. I have faith in the process of the law, and if it is carried out fairly, I can live with the results, whatever they may be. And knowing that the poor and minorities are disproportionately the victims of crimes, I’m loath to view the adversarial process of the law as class warfare by another name.
By the same token, I don’t view prosecutors and defense attorneys as natural enemies, however common that view is both within and without the legal profession. The two simply have different roles to play in pursuit of the larger purpose: realizing the rule of law. Though the roles are oppositional, their very existence depends on a shared acceptance of the law’s judgment no matter the passion of either side for a desired outcome. This is not to deny that the will to win drives both efforts. Nor is it to claim some simplistic equivalence between prosecution and defense. Rather, it is simply to insist that ultimately neither the accused nor society is served unless the integrity of the system is set above the expedient purposes of either side. This may sound naively idealistic, but there is a place for idealism in the practice of the law. It is what makes many of us enter the profession in the first place; it is certainly what drives some of us lawyers to become judges.
Dawn came to me in distress over another case we shared. “You’ve got to help me,” she pleaded. It was a sad story: Her client had lived his entire life in institutions, foster care followed by twenty years in prison for killing a man in a fight. Then, released on lifetime parole, he had been given no support but a bus token. Without life skills, unable to find a job, he survived by selling copper pipes that he stripped from a derelict building, not fully aware that this was theft. The terms of his parole were such that a single violation, even a plea to a reduced charge of disorderly conduct, would have sent him back to state prison. There was something about this man that made Dawn trust him. All things considered, he wasn’t doing so badly. He hadn’t been dealing drugs; he hadn’t robbed anyone. He wouldn’t have been stealing
pipes if he’d had any help finding a job. He had even met a girl and was in love … Dawn talked me into accepting an ACD, an adjournment in contemplation of dismissal, and she got him into a job program. If he stayed out of trouble for six months, the charge would be dismissed.
One day, two years later, he would be waiting for me outside the courtroom. He introduced himself, shook my hand. “You don’t remember me,” he said. “I’m the guy who was stealing the pipes.” He had found a job and been promoted to supervisor. He had also married his girlfriend. By now, they had one child and were expecting another.
The quality of mercy: “It blesseth him that gives and him that takes.”
THE OCCASIONAL MERCIFUL IMPULSE notwithstanding, I was racking up convictions. Whatever my insecurities—and I had plenty (still do)—I was also fiercely competitive (still am). I became addicted to the thrill of verbal sparring at trial, the exhilaration of having to reinvent strategy on the spot, not knowing whether it would work, under the specter of a judge who at any moment might catch me out with a question. Fearing such humiliation, I prepared compulsively, the way I had in law school, and my reward was the chance to go out and risk it all again the next day. That I could never be sure of myself while doing it was a big reason I loved my work as a trial lawyer.
Notching up top-count prosecutions—convictions for the most serious charges—while giving up little ground in plea bargains became the adult equivalent of collecting gold stars in fifth grade. I liked the particular challenge of taking cases to trial with unsympathetic victims and unreliable witnesses, like the drug addict whose methadone was stolen by another addict, or the elderly couple with fifty felonies between them who were robbed by their young protégé, a grifter in training; or cases that were hopelessly circumstantial, like the jeweler whose half-million-dollar pouch of gems went missing after a family of Gypsies swept through his store—who could be sure the jewels even existed, until I managed to get them returned? I won quite a few of those.
Certainly, no one could accuse me of being a soft touch, but talking with Dawn always reminded me of the human costs of my success, the impact on an individual’s life and his family. Her perspective allowed me to trust the voice in my own head that occasionally whispered: how about exercising a little discretion; having a little faith in human nature? It wasn’t easy, with around a hundred cases on my desk at any time and constant pressure to dispose of them as quickly as possible. Cases with the same charge tended to blur together, especially since the DA’s Office offered standard plea deals for certain crimes: Possession of a gun? Settle it today, and it’s a class A misdemeanor. Make me wait, and tomorrow it becomes a felony. Forget about mitigating circumstances; I don’t want to hear it.
Still, I wasn’t willing to prosecute a case that I simply didn’t believe in, my zeal as a prosecutor finally circumscribed by my impulse to always keep both sides in mind. The impulse had first developed in Forensics Club as a matter of strategy, but in this setting it sometimes produced the inescapable awareness that, though I might win, justice would not be served. I was especially lucky, therefore, to have a mentor in John Fried, who embodied just that kind of measured attitude. Under an impossible caseload, his commitment to fairness was fundamental. If I believed in a defendant’s innocence or doubted a witness’s story, I would knock on John’s door. We’d sit down together and analyze the evidence for as long as it took. In the end he might suggest offering a very low plea bargain, but he always left me an out: “If you can’t in good conscience try the case, then don’t.”
John’s essential fairness was of a piece with the idealistic standards that Bob Morgenthau set for the DA’s Office. Nevertheless, it often felt as if we were swimming upstream against muddy currents with the right answer not clearly in view. With each prosecutor handling around a hundred cases at a time, expediency and rough justice were the order of the day. We fudged, we made do with the tools at hand, we performed triage in the trenches, but we still made an effort to do it with integrity.
MAYBE MY PROSECUTING misdemeanors with a ferocity usually reserved for felonies looked to some like real fire in the belly. In reality, it was still more like butterflies and the unremitting fear of leaving anything to chance that made me prepare and argue so intensively. But for whatever reason, I was among the first in our duckling group to be moved up to more serious crimes. By the time I switched to felonies, John Fried had moved up too and was replaced as bureau chief by Warren Murray. Warren had a very different style: extremely soft-spoken but a 100 percent hard-as-nails prosecutor. I worried about how I would fare under him.
I was given a handful of low-level felony cases and a few others that were being retried. One of those cases involved a purse snatching. The defense attorney alerted me that it was flimsy, and I was dismayed to see that the facts were indeed thin to the point of being nonexistent. The young defendant had a clean record. His teachers had described him as quiet, polite, well behaved, but developmentally slow. He’d never missed a day of school. I interviewed the victim, an elderly woman. She hadn’t seen the thief’s face as he ran up from behind her, heading in the general direction of the subway entrance. The police grabbed a confused kid they found sitting downstairs on the platform bench, waiting for his train home from school. The woman identified him by the dark jacket he was wearing, like that of the thief, though she couldn’t say what color it was. The purse was never found.
I wrote up a description of the evidence and took it to Warren. “You’re right,” he said. “It’s weak. But we have the indictment, and it’s our job to prosecute. Let the jury do theirs; they’ll acquit him.” I went back to my desk and pondered how to argue this to a jury. I went home to Princeton that night and thought about it some more. But I could imagine no way of standing up in court and saying with a straight face that there was sufficient evidence to convict.
By the time I marched into Warren’s office in the morning, I was full of righteous indignation, fiery but totally in control. “I’m not trying this case. I can’t lie to a jury. If you think you can go into that courtroom and argue that this is grounds to convict, then you’ll have to do it yourself.” I threw the file on his desk and walked out.
He came running after me. “Look, I just needed to make sure that you were sure.”
“Why didn’t you just ask?”
“Sometimes I figure I have to play devil’s advocate.”
I could have done without the drama. The office declined to prosecute the case.
THE FIRST TIME I found myself before Judge Harold Rothwax, he was in a full-throttle tantrum over the many delays that had dragged out a case before I’d caught it on reassignment. “And now, obviously,” he shouted, “you’re going to tell me that you’re new and need a month to prepare!” I promised him that if he gave me fifteen minutes to confirm the availability of the witness, I’d be ready for trial the following week. That endeared me to him permanently. With plenty of misdemeanor trials under my belt, I had enough confidence—or the bravado of ignorance—to trust my performance under pressure. If nothing else, I knew my own standards of preparation. And sure enough, I would never once suffer the shame of his sarcastic warnings about “avoiding the dangers of over-preparation” dished out to so many other attorneys. I would, however, one time get a compliment of sorts out of him when, reading one of my motion papers, he allowed, “Misspellings are supposed to be a sign of genius. You must have plenty of it.”
Judge Rothwax dealt with all felony pretrial motions for my trial bureau. He was painfully exacting and infamously unforgiving of lawyers who wasted his time, on one occasion sending defense counsel to jail for ten days for preventing the start of a trial. He was known as the Prince of Darkness, Dr. Doom, and Yahweh, among other epithets, particularly for striking terror in the heart of defendants whenever one with a weak case would decline his offer of a plea. His notorious stock line to defense counsel: “Your client has the constitutional right to go to prison for the maximum time allowable.”
&n
bsp; But it wasn’t just fire and brimstone. Behind the infernal humor, a formidable clarity of mind and a keen legal acumen kept the docket moving with astonishing efficiency. A good judge must possess management skills as well as a deep understanding of the law. And there is no overstating the value of being able to keep all the facts of a case in your head. He might spend two minutes at a conference on a routine case, more on especially complicated ones, but two months later he would remember every detail.
However caustic, Judge Rothwax was no cynic, though like many a cynic he had been disillusioned, having started his career as a Legal Aid attorney and civil rights advocate before becoming a prosecutor. That early experience led him to conclude that given all the elaborate protections of the rights of the accused, any defendant whose case eventually came to trial was almost certainly guilty. In a controversial book, the judge proposed abolishing the Miranda warning and other rules that he believed handicapped the police and prosecutors; he also argued that a 10–2 jury verdict was close enough to unanimous for conviction. I wasn’t prepared to accept his presumption of guilt, although it is borne out statistically: policemen don’t normally make arrests on sheer caprice; most defendants do turn out to be guilty. But a probability of guilt doesn’t seem reason enough to revise our standards of due process. These are designed to protect everyone from the human frailties of those whom we entrust to enforce the state’s tremendous powers. Even if the vast majority of the law’s agents exercise these powers scrupulously, it is unconscionable that anyone should pay for a crime of which he was unjustly accused. Blackstone’s famous ratio (“better that ten guilty persons escape than that one innocent suffer”) still speaks to a deep-seated sense of what is just.
My Beloved World Page 23
