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

by David Feige

  The X-rays were pretty astonishing --five rounds of live ammunition working their way through the duodenum of a fourteen-year-old boy. Even in the overcrowded emergency room overflowing with gunshot wounds and accident victims, the attending physician called the residents together to admire the film. “It was a dare,” Branford explained, opening wide his transfixing eyes. “I just wanted to win the bet.” The assembled doctors nodded, credulously accepting his explanation. Stranger things have happened in the Bronx, they probably thought to themselves.

  A laxative and twenty-four hours later, Branford was back on the streets. The other kid wasn’t so lucky. He spent about a year in jail for a crime he didn’t commit. When you grow up in the Soundview projects, that’s the kind of lesson you learn, usually the hard way: the kids who’ll swallow metal walk; the ones who freeze go to jail.

  Branford understood this. He was fearless, itinerant, and lethal. In time, though, the life catches up to you. Like virtually everyone else in the game, Branford eventually went to prison.

  Once released, Branford came to work at the Bronx Defenders, devoted to the idea that he, unlike so many of his brothers from the street, was never, ever going back. Almost all ex-cons start out this way. Jimmy Seelandt, another ex-inmate we hired, did well for almost a year before lapsing back into addiction. By the end of his second summer of freedom, Jimmy was dead, a needle in his arm.

  Freedom is tough.

  In a certain way, it’s only the worst, most successful criminals that ever have a chance to make it in the straight world. The transition is so alienating, the cultural transformation so complete, that only those with unimaginable willpower really stand a chance. The temptations are everywhere, the signals are constantly crossed, and restraint has to replace reflex in a way few can manage. When quick thinking and violent reactions often save your life, it’s hard to hold your fist, let alone your tongue.

  Branford, though, has made it more than five years, and though it hasn’t always been easy and he still has moments of thuggish stupidity --mostly in inappropriate clothing choices (it was years before we got him to surrender the huge, golden faux-diamond-encrusted hand-grenade pendant) and his religious insistence on driving a fancy car that he can’t really afford (it’s what he always dreamed about in prison) --Branford has actually succeeded in making the shift.

  “What you got today, Feige?”

  “The usual shit,” I tell him. “Three murders in Moge’s part though.”

  “Yeah?”

  “Yeah --and Clarence’s one of ’em,” I tell him.

  Branford knows Clarence. Everyone in Soundview knows everyone.

  Clarence Watkins is charged with murdering Shamar Hardy. Clarence was raised in 1715 Randall Avenue, two buildings away from the crack house where Bemo slept. He has a handsome, elegant face set off with big, expressive eyes. He is utterly innocent.

  Number 1715 is one of the hulking buildings arrayed around the Soundview Oval. Clarence lives on the second floor, down a dirty, poorly lit hallway, in an apartment he shares with his mother. Clarence is not a particularly magnetic guy, but he’s not particularly offensive either. He doesn’t do drugs or run with gangs. He is sweet, shy, and almost demure. He knows the neighbors in the casual way of those who have lived in the same building for years. Clarence, though, as almost everyone who knows him will tell you, doesn’t talk much. He prefers to keep his own company. At thirty-seven years old, he has lived in Soundview for nearly his entire life.

  Though a hustler for a short time in his youth, Clarence had pretty much avoided trouble as an adult. He’d joined the navy, and after his service, when he couldn’t find a job, he’d gone to Israel to proselytize. That didn’t work out so well, and after about eight months he returned to New York and to Soundview, where he was slowly working his way through college, holding down various jobs to get money for classes, and getting good grades.

  Until he was arrested and charged with murder.

  - - - -

  A semiautomatic .380 is a small but deadly weapon. Petite enough to fit in the palm of a large hand, the .380 may not have the stopping power of a larger-bore handgun, but it is often more effective. When you divorce bullets and bodies from the pain and loss and suffering, the former causes the latter --weapon choice becomes a complicated compromise between stealth and lethality. In the Bronx, it’s not easy to sneak up on someone with a huge .44 Magnum in your hand --and certainly not if they’re also armed or anxious. The gun is just too big. A .44, and even its slightly smaller cousins, the 9mm, .357, or .45, is also likely to raise police suspicion.

  A .380, by contrast, is a weapon of stealth. Easily concealable and capable of firing more rounds than a standard police revolver, a .380 has a reputation on the streets as a perfect mixture of small and dangerous. Generally lacking the power to fly completely through a body, smaller caliber bullets will often bounce around inside those unfortunate enough to be shot by them. The bullets are slowed by tissue and deflected by bones, and the wound tracks left by a .380 or its smaller cousins, the .22 and the .25, are often tangled freeways of physical destruction. This is especially true when a little slug winds up in someone’s head. The thick carapace of bone in the skull will absorb so much energy that the bullet can’t escape. The result: a deflection off the other side of the skull and scrambled brains as the bullet ricochets inside the skull cavity. Not surprisingly, mothers and doctors hate small-caliber weapons.

  It was a .380 that killed Shamar Hardy in December of 2002. He was gunned down inside the cramped lobby of 1715 Randall Avenue --four feet from the mailboxes, eight from the elevator. The building lobby, like most in the projects, was built small, the architecture of low-income housing dictating that common areas be intentionally hard to hang out in. The foyer was barely large enough for four people to stand in, and when Shamar’s dead body came to rest there, it stretched half the distance from the vestibule doors to the elevators. Shamar took six shots: five to the body, one to the head. Shell casings were sprinkled around like metallic potpourri. His clothing soaked up much of the blood.

  When the police came, just minutes after the shooting, the shooter was long gone. Knocking on doors, they got nowhere. The crime scene unit came up with nothing other than some spent shells. No one would admit to having seen anything. There were rumors that a couple of people had been seen running from the crime scene, but no one could provide much information, or if they could, they wouldn’t. That wasn’t terribly surprising to the night-watch detectives who showed up well after EMS had carted Shamar’s body away. In the projects, no one sees anything, or at least few people say they do. The fact that local drug dealers live by their own rules, and often die by their rivals’ guns, is a matter for gossip and speculation, but not, in most cases, court testimony.

  Edmundo Rulans was drinking the night of the shooting. He and Mary, a friend who also lived in the building, had gone through several forty-ounce beers before hearing the shots. Edmundo isn’t the most stable of people --even according to his wife, he’s drunk much of the time, medicated nearly all of the time, and what she calls “very imaginative.” Still, what he told the police set everything in motion: “I saw Clarence shoot Shamar.” Those five words put Edmundo Rulans in the middle of a murder prosecution and sent Clarence Watkins to jail.

  Edmundo’s statement to the detectives, made a week after the shooting and a week before he himself was busted for drugs, was the only thing that linked Clarence to the murder. The police, though, didn’t need anything else. Clarence Watkins was arrested and charged with Shamar Hardy’s murder.

  There are times as a public defender when you can just smell innocence. It’s easy to spot weak cases or tenuous legal theories, and the naive among us regularly have the waft of innocence in their nose to begin with. But when you’ve been a public defender for a long time, the smell of innocence is rare and unwelcome. Clarence reeked of it.

  Defending the guilty is easy. Not all clients are classically pleasant, of course. Some
are defiant, others pathetic, some terribly needy, others inalterably enamored of the gangster life. But every client has a story --not a story about the crime or charges, but a life story that is by turns tragic, compelling, and unique --and getting to know clients makes them easy to defend. It’s easy to want to protect someone you know from the horror of prison --even if they’ve done something criminal.

  But God help you when you have those innocent kids. Nothing good can happen when you represent an innocent client. If you beat the case or the client is acquitted, it is precisely what everyone expects --no joy there, just the relief associated with avoiding a terrible injustice. And if you lose, the case haunts you, so that in the middle of the night and until sunrise you wonder what you did wrong, what you forgot, what you could have said or done --how such a thing could have happened. It is a searing, guilty pain that can last for years, if not forever. It’s the innocent ones that drive you out of the work.

  It is precisely this problem that leads many criminal defense lawyers to shut out questions of guilt or innocence. The responsibility for the innocent can simply be too much. Sometimes it’s better not even to wonder.

  When Clarence sat down across the battered table from me in arraignments, not far from the stinking cells that hold the dozens of people waiting to see a judge for the first time, I knew this was going to be one of those “God help me” cases. It wasn’t his rap sheet that made me think he was innocent --he was a twice-convicted felon. And it wasn’t the strength of his defense either: “I was at home with my mother when the shooting happened” is one of the worst defenses imaginable. Everyone believes that family will lie to protect family, so jurors never believe the “I was at home with my mother” stuff. Often it’s better not even to introduce it. This is especially true when being at home puts you thirty seconds from the scene of a homicide.

  Still, I believed Clarence almost immediately, and as I sat there, the woozy fear set in.

  It was because Clarence smelled so innocent that I began to think for the first time since Gillian Sands that a grand jury would toss a murder charge. It wouldn’t be easy, but it seemed like a risk worth taking.

  A grand jury story is like tissue paper --gossamer thin and nearly translucent. When done right it explains the client’s innocence and lets the jurors see the person inside. When done wrong, it’s a thunderously painful disaster. Take, for instance, Alonzo.

  “I’m gonna tell ’em my side, yo!” Alonzo sputtered in the midst of a vitriol-laden tirade in which he attacked my legal acumen, impugned my manhood, and suggested rather stridently that I was seeking to “get paid” by pleading him guilty.

  “Ah, right, Alonzo.”

  “My side!”

  There was something almost charming in his furious predictability, the way he’d roll his eyes when I’d come upstairs to the pens to visit. The way he’d swagger his way into the interview room as if by sitting down with me he was doing me a huge favor. The way he’d snort before I’d even opened my mouth, as if to say, I gotta listen to your damn fool nonsense again? In fact, I could barely get past a friendly hello before he’d unleash a generous stream of invective concerning my “bullshit cocksucking cop-out bullshit” (Alonzo was never one to skimp on repetition).

  Alonzo didn’t want to be in jail, and despite my counsel he had decided that the best way to go free was to testify in the grand jury. Any attempt to suggest that this might not be such a grand idea prompted an inventive concatenation of curse words, which, simply translated, meant: “I’d prefer not to heed your advice.”

  My advice, though, was based on the fact that Alonzo seemed to believe that his simply not wanting to be in jail constituted an effective legal defense to the robbery charges he was facing.

  “Alonzo,” I had said patiently, steering clear of the cocksucking cop-out bullshit, “you can do whatever you choose. If you want to testify in the grand jury, I’ll make sure you can, but it’s really important that you at least tell me what you’re going to say, so I can help you prepare.”

  Alonzo looked at me as if I was speaking Latvian: “I’m gonna tell ’em my side, yo,” he said simply.

  “Right, Alonzo, I get that, but what is your side?”

  “It’s. My. Side. Yo.”

  “Right, but what is it? What is your side of the story?”

  “I just told you, fool --it’s MY SIDE!”

  “Okay, so try to tell me your side, just like you would in the grand jury.”

  Alonzo rolled his eyes. “Yo, I ain’t got time for your damn foolness,” he said as if rather than being in jail, he had a packed social schedule. “I’m going to the grand jury, an I’m gonna tell ’em my side.”

  I tried one last time: “Right, but what is the essence, the point, the story, if you will, that constitutes your side?” I asked, thinking maybe, just maybe, he’d get it.

  Alonzo fixed me with a withering stare: “It’s my side, yo,” he said simply.

  We never got beyond this impasse. Two days later, sitting in front of twenty-three grand jurors, Alonzo said, “I’m here to tell you my side. I got a damn fool lawyer who don’t tell me shit, and I don’t even know why I’m here.”

  The grand jurors weren’t impressed. They indicted.

  At least I knew what Clarence’s side of the story was: he was at home, upstairs with his mother, when Shamar was murdered. Moreover, I believed it. There was something else too. Because grand jury cases are so abbreviated, likability plays an important role --often a far greater role than at a trial. And Clarence (unlike Alonzo) was, in my view, very likable.

  Apparently not likable enough, though. The grand jury indicted him too. And because of that indictment, Clarence is facing a murder trial today.

  Reaching my office, I drop my bag, hang up my coat, and log in to the computer. I have ten unread e-mails and, according to my phone, four new voice mails. The cheap clock across from me, a relic from my old office, reads 10:08 a.m.

  T h r e e

  10:08 A.M.

  Nikki calls.

  Nikki is tall, slender, and almost model beautiful, with deep brown eyes and a face the color of wet sandstone. She’s almost twenty now and still as fresh-faced as the day I met her --a sixteen-year-old girl charged with murder.

  “Hi, David,” she says in her naive, singsongy voice.

  Nikki is calling just to be sure she’s not going back to jail when she comes to court next month. She spent almost a year and a half at Rikers Island before I got her out, and even though I explain that she’s pretty much done all the time she’s going to do, she gets understandably nervous before each court date. I remind her that eventually she will have to step back into a prison cell for a few weeks so that she can then be officially released on parole --but not this time.

  “Promise?” she asks me.

  “Promise,” I say definitively. Then we hang up.

  From the moment I walk into my office until the time I shut

  out the lights in the evening, the phone is always ringing. It’s been like this for years. Whether I was in Brooklyn, Harlem, or the Bronx, the pace of inquiring phone calls has been just as relentless.

  “What are my chances on appeal?”

  “Is there an offer on my case?”

  “My son just got arrested.”

  “You a shitty lawyer! You ain’t done shit on my case.” Most of the hours I’m not in court or out in the field investigating are filled with responding to stuff like this. Some clients are constant callers, while others never call at all --either they’re content to show up in court and deal with their fate, or unable to muster the juice it takes to get to the gang-controlled phones at Rikers Island. (In many of the facilities at Rikers each gang controls a particular telephone, and lonely inmates longing for a friendly voice must either be aligned with a particular gang that controls a phone --the Bloods, Nietas, or Latin Kings --hustle to get access to one of the very few nonaligned phones, or pay a gang member dearly for the privilege.)

  LeShawn Jo
nes was one of those rare inmates who had no problem getting to the phone at Rikers Island, but he had no one to call when he did. The result of that strange coincidence was the series of calls that eventually yielded my old nickname at the Legal Aid Society: Mista Fudge.

  I represented LeShawn in a gun case. There was little that was unusual about it, other than LeShawn himself --a client who literally couldn’t get over the fact that somehow he found himself in jail. As sweet as he was, our attorney-client relationship never really developed beyond a constant conversation about his continuing incarceration. His calls were so relentless and so tragic that LeShawn eventually became a legend in the office. Here’s how it went.

  “Hello. David Feige.”

  There was a short electronic beep --indicating that the call from Rikers had been connected. And then, with no preamble at all, LeShawn’s voice would come tumbling out as if he’d been holding his breath, waiting for the beep, ready to explode with the revelation he’d just had.