by David Feige
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Survival was something Eddie Mayr knew a little something about. Eddie had spent three tours in Vietnam and considered all of life to be just another form of jungle combat. Every Friday afternoon he’d march the first-year lawyers into his office to do “simulations.” Lecturing us on the need to keep attacking, even when he’d angrily shot us down, he’d torture us for hours, making us get up and deliver opening statements, formulate cross-examination questions, or try our hand at voir dire (the questioning of potential jurors before a trial). I happened to like this sort of trial-by-fire approach, and I often stayed after school along with most of the other lawyers to decompress --that is, drink heavily --in Eddie’s office. As the evenings progressed, the conversation usually turned to who did well and who fucked up during the week. This was often unpleasant. After all, Eddie’s thousand-yard stare and vicious nature lent a certain harshness to his critiques. But it was an effective way to learn to be a better lawyer, and I wanted very much to be a better lawyer.
And so, in Brooklyn, under Eddie’s watchful eye, I learned to be a public defender --mostly by supplying him with Budweisers and listening to him rant. It was the best sort of law school I could imagine. At the time, I was juggling between 100 and 125 cases --an ocean of pleas, arraignments, motions, and trials. Every day I traversed the monolithic gray stone court building on Schermerhorn Street, defending poor people charged with misdemeanors --train hopping, pot smoking, meat boosting (meat, along with batteries, aspirin, and Pampers, is often stolen because it’s easy to resell), or prostitution. Misdemeanors help you get your court legs, help you learn the mechanics --where to stand, what to say, how to read a judge. The legal aspects of the misdemeanor cases that occupied all of my time were seldom complicated, which was good since the judges who presided over them seemed to have only a rudimentary understanding of the law.
Once a young lawyer has been mired in misdemeanors for a year or so, having handled between four hundred and a thousand or so of them, a supervisor can begin the process of “felony certification.” With this supervisory approval, one can start doing low-level felonies, cases in which people are looking at a few years (rather than ten or twenty) --purse snatches, gun possession, car theft.
Although the certification system is fairly rigid, the actual assignment system is very porous, and enthusiastic kid that I was, I soon began sneaking felony cases --something my overworked felony-certified colleagues were more than happy to ignore. With felonies, I got to go to Supreme Court, where courtrooms are bigger, cases are fewer, and the tone of the proceedings is much more formal. Because Supreme Court adjudicated more serious cases, the standard bargaining unit jumped from days in jail to years in prison, and I began meeting new and different kinds of clients and spending more time in jail cells.
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Just behind an unmarked door on the ground floor of the Supreme Court of Kings County there was a nondescript corridor that led to the “pens” --courthouse slang for jail cells. The corridor ended at a door, conspicuous for its weight, with a small window cut at eye level and a red-and-white sign that made clear that you were now entering a secure area. The sign also listed a large number of potential infractions --any of which could get you banned from the pens, arrested, or, if you were an inmate, additional time behind bars.
Just behind the door was a corrections officer who, nearly every day, perfunctorily examined my Legal Aid Society ID and motioned me lazily toward the back. Around the corner were the pens themselves, three huge cells, each the size of a racquetball court and crammed with prisoners waiting to be seen. The men were standing, sitting, or sleeping under the steel benches bolted to the walls.
Supreme Court cases usually last longer than misdemeanors, and therefore they afford a lawyer a greater opportunity to form a long-term relationship with a client. From the beginning I loved most of the people I represented. There was the defiant Hasidic Jew from Borough Park who tried to refuse a dismissal, screaming at me, his peyos bouncing in consternation. “I don’t want ACD,” he told me. (ACD is an adjournment in contemplation of dismissal --the closest thing there is to an outright victory and something almost no one, and certainly not this guy, should turn down.) “I want full vindication at trial! Nothing but full vindication at trial!” And there was the Rastafarian client who promised me that when he got out I could come to his house in Flatbush to “it sam fine-food, mon.” Almost every day brought me into contact with an astonishing array of people, all of whom desperately needed my help.
Oddly, the fact that they were needy seldom translated into gratitude for being helped. That was something I had to get used to. It took a while to really, viscerally understand that helping people has to be its own reward --that if, as a public defender, you expect any appreciation from your clients you’ll never survive, because the unfortunate truth is you’ll rarely get it. This was a lesson made explicit for me one Thursday night in the back of Callahan’s Bar and Grill, the Irish dive bar next to the office. The bar was split the usual way --prosecutors in the front room, defense lawyers in the back, and there was almost no movement between rooms, except to get to the turkey. The turkey --usually a twenty-plus-pound behemoth --was set out around 7:30 p.m. and usually rendered a bony, picked-over carcass by 7:37. For a bunch of underpaid prosecutors and legal aid lawyers, Callahan’s turkey was a way to spend some limited resources on liquor and still get some food in your stomach.
I spent a lot of time at Callahan’s.
Among the experienced attorneys who occasionally bought the younger lawyers drinks, Paula Deutsch was my favorite. A hard-drinking, brilliant true believer, Paula was the kind of elegant woman who, despite her graying hair and mild lisp, had the sultry sexiness of a librarian in a skin flick. She tried some of the toughest cases in the office while seeming to love both the work and her clients. One night, after a particularly rough day, an hour or two after the turkey, Paula told me something I’d never forget.
“Thing is, Feige,” she said, leaning forward, shaking her head, and fixing me with an urgent glare, “you gotta lawyer for you.”
The sentiment seemed strange coming from her, and I must have looked at her blankly, because she smiled bemusedly and continued.
“If you’re doing this work because you think people are gonna love you, or appreciate you, or admire you, you’re fucked. Your clients, they got no reason to appreciate you, and if you think they’re gonna just sit up one day and realize you’re the best lawyer they’ve ever had, you better just hang it up right now. And prosecutors --they think you’re shit on a good day, and that ain’t never gonna change. And judges . . .” Paula made a whistling sound as she exhaled. “You can be as smart and persuasive as you want. You can bring all that beautiful passion and that big brain of yours to bear every single day. They ain’t gonna care --they’re still gonna fuck your client anyhow. So if you’re working this job looking for appreciation, you’re never gonna last.” She paused for a second to parse my distraught look. “Feige,” she said, leaning closer, trying to convey that there was a point to this lesson in tough love, “it’s gotta come from here” --she clapped my shoulder and gave it an almost maternal squeeze --“you gotta know deep down that this is the most righteous work there is, that even though we lose and lose and we get creamed every day, even though we watch them take our clients and haul them off to jail, you have to wake up the next morning and fight your heart out, looking for those few times we can stop it. Not because you’re looking for appreciation, not because you want someone to say, ‘Thanks, Feige, you saved me,’ but because, at the end of the day, no matter what anyone says, you know that what you’re doing is right.”
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I actually got felony certified several months after I started sneaking felonies. By that time I’d already tried and won a few bench trials --an innocent kid swept up in the mayhem of the Crown Heights riots (I called his priest as a character witness) and the front man in a turnstile double-up (“He just slid in beh
ind me --I don’t even know him” was his legitimate defense). I’d also dabbled in the terrifying world of the misdemeanor jury trial. In a DWI case, I began my opening statement by saying, “It was a dark and stormy night. . . . I’ve always wanted to start an opening statement with those words, and now I have. But you know --it’s actually true.” It was the road conditions, I argued, not the alcohol that caused the car to slide. The jury acquitted in fifteen minutes.
My first big loss was a young kid named William Valentine. William was short and squat and handsome. A light-skinned Hispanic with Schwarzenegger’s square jaw, William possessed the toned physique of an aerobics instructor --which, in fact, he was. A huge hit at a local Brooklyn health club, William was doing well in the world until he was charged with rape.
Under New York law, there are two statutes that cover the acts most of us imagine as rape. One, called “rape in the first degree,” is a class B violent felony. It is defined as “sexual intercourse by forcible compulsion” and is punishable by up to twenty-five years in prison. Almost any defendant convicted after trial of what the system calls “rape one” is likely to spend a few decades behind bars. There is another sex crime that also covers rape, though. It’s called “sexual misconduct.” Technically defined as “sexual intercourse without consent,” the crime, at first blush, seems different from rape in the first degree. It’s not. As it turns out, lack of consent is actually defined as resulting from “forcible compulsion.” Nevertheless, sexual misconduct is a class A misdemeanor, punishable by a fine, community service, or up to one year in jail. Rape in the first degree and sexual misconduct are the same crime --the distinction exists solely to give prosecutors discretion in charging. In a cruel twist, however, defense lawyers cannot argue to a jury that they should convict a client on the misdemeanor rather than the felony. The charging decision begins and ends with the prosecution.
Linda Liotta was the kind of Italian Catholic girl most Jewish boys dream about. Long and lithe, with pale skin and dark eyes, she came from the kind of tight-knit, restrictive family that still thrives in Brooklyn neighborhoods like Dyker Heights, Bay Ridge, and Bensonhurst. Linda could be fiery and independent, and seemed to yearn for a life away from her family. She moved out just after her nineteenth birthday. And for her first weekend alone, she called her aerobics instructor and asked him out on a date.
They had a good dinner by all accounts, chatting amiably, going for a short walk, and driving around near the boardwalk in William’s car. They never went out again, though Linda continued to take William’s classes --sometimes twice a day.
The phone calls started about six months later --Linda asking to talk to William, leaving messages two and three times a day. She still took his classes --as many as eight or ten a week, standing right in the front of the room, often dead-center. Club management got concerned about the situation when the calls and messages started to interfere with William’s class schedule, and eventually, they asked her not to phone so much. William had another girlfriend by then, someone he was serious about, and she thought Linda’s calling was distracting and unhealthy. Club management agreed, but the calls continued. There was a meeting, and eventually Linda quit the club.
It was nearly two years after their only date that Linda Liotta told the police, for the very first time, that William had raped her. Despite the two-year-old complaint, the total lack of physical evidence, and Linda’s odd behavior at the health club, the police went ahead and did what police do --they arrested William.
This wasn’t surprising. With the advent of Special Victims Units and domestic violence prosecutors, most anyone able to enunciate the word rape can almost always get someone else arrested. Sometimes, of course, there is a real basis for the arrest, but there are also plenty of people manipulating the system. Worse is that oftentimes there is minimal investigation beyond the allegation itself. Delayed outcry is explained away, lack of physical evidence is taken as a nonissue, and problems with memory or an inability to recall details are excused under the theory that rape is such a traumatic experience that the usual rules don’t apply. Whether all of this is a good thing or a bad thing depends on which side of the accusation you’re on. For a belated accuser with vague memories and no physical corroboration, it’s great. For someone surprisingly accused of a two-yearold crime, faced with losing his livelihood, job, girlfriend, and freedom, it’s pretty far from great. And for prosecutors unsure of what or whom to believe but required to take a rape allegation seriously, the complicated cocktail of facts can lead to baby splitting --a misdemeanor rape prosecution, which is precisely what happened to William.
William’s account differed substantially from Linda’s. They had driven around for a while, parked near the boardwalk, and started making out in the car. The making out led to more significant making out and then, eventually, to consensual sex. But in Linda’s version, after a little making out, William had climbed over from the driver’s seat, tilted her seat back, and raped her.
William was a wonderful client: he was sweet, prompt, thoughtful, and kind. Though he was not particularly bright (he did, after all, make his living jumping around in a tight-fitting outfit in front of a room full of sweating women), he was astonishingly considerate and willing to listen. “You never know what can happen at a trial,” I told him. But William was utterly resolute. He wasn’t going to plead guilty (he was offered three years of probation) to something he didn’t do --particularly not a rape. He wasn’t a sex offender, and he wasn’t going to say he was just because he was scared of jail. He’d take his chances.
After cross-examining the prosecution’s expert in rape trauma syndrome --the DA’s attempt to explain why someone wouldn’t report a rape for nearly two years --and after delivering a powerful summation, I felt good. The jury may have been out for three days, but I had gotten precisely the jury I wanted --six men, no women. And so, as I rose to face the judge, to take the verdict that had left me sleepless for nearly fifty hours, I believed that William would be acquitted. I believed, after all, that he was completely innocent.
“How do you find as to the first count of the information, charging the defendant with sexual misconduct?” asked the clerk of the court.
There was hardly a pause: “Guilty,” said the jury foreman simply. My shoulders slumped, William’s girlfriend gasped, and Linda’s parents, who had come to comfort her, harrumphed with satisfaction as Judge Michael Gary ordered that William be hauled off to Rikers Island.
“Defendant is remanded,” he said before I could even open my mouth.
And as the words tumbled out, the burly court officer behind William seamlessly slipped the cuffs over his wrists, grinding them home --the ratcheting sound of the metal etching itself into my mind like an acid-tipped brush searing a copper plate.
I’d made one of the worst rookie mistakes there was. No one had bothered to tell me that no one in his right mind picks an all-male jury in a rape case. The reality is (or at least I believe) that when it comes to rape most men spend their time in the jury room trying to validate themselves by demonstrating how sensitive they are to the victim. Consequently, men are uncomfortable acquitting someone on a sex charge, and this is acutely true with an all-male jury. It takes a woman in the room to corroborate their skepticism, to make their disbelief okay.
They took William away, and outside in the wide hallway with the ugly brown linoleum and clanking half-painted radiators, I sobbed. I knew abstractly that as a public defender, at the end of the day, depending on whether I did my job well or not, my clients would either go home or be carted off to jail. And I knew that no matter what happened to my clients that I would go home to my little apartment on the Upper West Side, safe and sound in a life full of good choices.
But what I didn’t know until that day was how devastating William’s loss would feel to me, or how, as I watched those court officers take him down the hall, my throat would constrict and I would feel as if someone had just dropped an elephant on my chest, and that
I would think of William Valentine every single day he was incarcerated. I had had a chance to speak on William’s behalf, and what I had said and done in that capacity had actually meant the difference between life and whatever it is that you call a year behind bars --and I had blown it.
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And along with the specter of Angelo Tona, it is the horror of blowing it, of making a mistake and then having to watch someone led off into the deafening brutality of prison life, that finally gets me out of bed and into the shower this cold winter morning.
It is now nearly 9:00 a.m. No matter how hot I make the shower, it cannot wash away the ghosts. But there is no more time to think about William. It is time to get dressed and head north yet again, to the battlefield, to the apocalypse, to the end of the world.
To the Bronx.
T w o
9:22 A.M.
Someone pissed on my doorstep. Because my apartment building is slightly recessed, it provides excellent cover for the inebriated Yuppies who stagger home from the bars down the block late at night. The result: several mornings a week I’m greeted with a little olfactory premonition of the day to come. I step over the little puddle and into the flow of businessmen in expensive English bench-built shoes flooding toward the subway station and the cute new moms carrying yoga mats, ducking into the Bikram yoga studio a few doors down.
