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

by David Feige

  “Mista Fudge, it’s LeShawn Jones. I’m in jail, Mista Fudge. I’m in JAIL!”

  “I know that, LeShawn,” I’d say evenly. “You’ve been in jail for five months already.”

  “Mista Fudge, please.” His whereabouts seemed to be a source of continuously pained astonishment.

  “Yes, LeShawn.”

  “I’M IN JAIL, MISTA FUDGE. IN JAIL!”

  “Right, LeShawn.”

  “MISTA FUDGE, I’M IN JAIL!” LeShawn would shift his emphasis from I’m to in to jail as if this recombination might better convey the magnitude of his suffering.

  “I. Am. In. Jail! Mista Fudge. IN. JAIL.”

  “What would you like me to do?” I’d say, feebly aware that there was little I could do to help him come to terms with his predicament. Frustrated, he’d hang up, only to call two hours later with the same startled realization.

  “I’m in jail, Mista Fudge. In Jail!”

  My colleagues noticed this telephonic ritual, and eventually, over the months and the dozens of identical conversations, LeShawn became a macabre joke, an embodiment of the deep pathos churned up by the justice system. His calls were eventually transferred to speakerphone as a small crowd of amazed young public defenders gathered around to hear him say his magic, tragic words. As for me, forevermore Mista Fudge it would be.

  By the time I’m done with Nikki and the accumulated e-mails it’s 10:25 a.m. and I’m already absurdly late for court, and just as I start to get moving the phone rings again. It’s Alvin. He needs to ask me for the twenty-fifth time about his upcoming sentencing. Harsher than I should be, I tell him I can’t talk and if he needs more reassurance he’ll need to call me at four. He keeps talking, and I put him on speakerphone while I head toward the two rows of hooks behind my office door.

  I loathe suits. But with Alvin still on the phone, I grab a vaguely frayed chalk-striped suit, and what I hope will be a matching tie, and do the quick change, leaving my jeans in a crumpled heap under the desk. Pulling a plain blue cotton oxford over my head, I tune back in to Alvin. He is still talking, having segued into a story I’ve heard a dozen times about why he needs a note from me to show to someone else so that person can write a note to a third person who will help him get a non-driver’s-license ID, which he can use to get another document, which in turn has something to do with his SSI benefits. His is a complicated life, one I’ve been dealing with for more than six years, but this morning, like most mornings, I can’t give Alvin the answer he’s looking for, and so, having let him fulminate for three or four minutes, I finally say the only thing that works: finger poised above the speakerphone button, I say as calmly as I can, “Alvin, I love you,

  but I’m hanging up now. Call me at four.”

  On goes the jacket. Down goes the finger.

  Click.

  - - - -

  It’s a ten-minute walk to court --out through our library, past a small white table filled with lawyers and social workers talking in hushed tones to huddled clients and their concerned families, past Lillian in her usual spot, clutching the plastic bag of grimy papers that she sorts and resorts almost every day, sitting alone at a table at the end of the lunchroom. “Hi, Lil.” I smile as I go by her, heading toward the door. “Hi, Dave,” she says haltingly, eyes darting around the room --guarding her precious papers. And finally past the reception area, where two kids in matching red do-rags and desultory looks lounge on a couch in affected tough-guy poses.

  Outside, just up the block, I pass the Gaseteria, with its oilcaked pavement and rickety pumps, and the weird car lot where Robin and I parked for a while after the weekly turn-signal thefts began.

  I usually make the hike to or from court at least twice a day, sometimes more often, and it’s the rare day that I don’t pass someone I know --someone like Ms. M., whose kids are almost always in jail. I’ve represented two of the three and helped out on her third son’s case. Every time I see her she gives me updates: this one’s coming home, that one just got a little sentence, the third has been taken by the feds. She’s a sweet woman and loves those boys, and I tell her to send them my love and then continue up the block past Frank, a former client, who is selling incense on the corner.

  José, with his two blue Latin King teardrop tattoos, waves from a car, shouting to me that he’s doing good --gone legit, working construction and raising his son. He smiles and gives me the thumbs-up. I’m not sure whether he’s legit or not, but with his record, any new violent felony and he’d be facing a life sentence.

  There are people lounging around the bodega across the street. Several kids, invariably attired in the street uniform of uncannily clean clothes and immaculately maintained shoes, keep watch on the vestibule of the project building directly across from them, on my side of the street. The complex is called Morrisania II --as if it’s the QE II’s cheap housing-project cousin.

  Next to the bodega, several large women jam themselves into what might arguably be the most cramped nail salon in the known world: Honey Nails. Built into an embankment, more like a missile silo than a commercial establishment, Honey Nails sports unwashed windows plastered with faded posters of outrageously elaborate fingernail designs. Though I’ve seen people inside, I have yet to see anyone enter or emerge.

  I’m nearly two blocks from the office.

  Almost every time I cross Morris Avenue I have a pang of nostalgia for the old Bronx Defender offices. Built in a renovated ice factory, they felt like a massive, superhip downtown loft. With its thirty-foot ceilings and totally open floor plan, “the Ice House” (as it was known) was dreamily spartan and chic --a message to clients and staff alike: this is no ordinary public defender office. Sadly, the Ice House lasted less than three years. In a generally unnoticed bit of irony, it was demolished to make way for a new courthouse.

  The skeleton of that new courthouse stretches two full blocks now, and the humming of cranes and clanging of burly workmen using their hugely outsized wrenches to bolt I beams together masks the reggae music the guy selling pirated CDs is playing on a boom box powered by electricity conspicuously stolen from the adjacent lamppost. The block is always crowded: welfare, parole, and the Administration for Children’s Services are all housed in the massive, dreary brown brick building that takes up the entire block across from the construction. As I weave between the people, my backpack or litigation bag barely avoiding collision, my brain takes in the snippets of almost invariably angry overheard conversation: “he cut me off . . .”; “waited there for four hours . . .”; “locked him up for bullshit . . .”; “he don’t know shit.”

  The swirl of voices thins as I come alongside the tall black wrought-iron fence of the incongruous mall across from the criminal court building. The mall was where we started out. Eight of us, committed to creating a new kind of public defender office, opened the Bronx Defenders for business on September 1, 1997, in a tiny office sandwiched between the Radio Shack and the Rent-A-Center.

  The “mall,” of course, is not what most people who are used to seeing shopping centers imagine. There is no glistening glass. There are no elegant escalators. There are no department stores, no bookstores, no quaint jewelry carts in the middle of regularly swept corridors. The main mall attraction is a food court composed almost entirely of fast food --McDonald’s, KFC, Arthur Treachers. There is one set of escalators that leads to the underground movie theater and only works sporadically. I once saw someone collapsed there on the immobile top step, still bleeding from a bullet wound.

  The mall has a few other stores too, mostly down-at-the-heels retail joints selling low-grade electronics, sneakers, and knock-off jerseys. The biggest tenant by far, taking up one entire side of the open rectangle, is a grocery store, fully stocked with the culinary preferences of a predominantly immigrant community. On the other side is a vaguely linear crowd of about two dozen people.

  They are waiting to see their probation officers.

  - - - -

  Because I’m late, I quicken my pace.
I hurry across the street and up the hill, past Twin Donut and the always-smiling shoe guy; past Farooque’s sandwich shop, which is chock-full of annoying assistant DAs; and past the fraying offices of a few oldtime criminal defense lawyers, until the majesty of the Supreme Court comes back into view.

  Perched at the corner of the Grand Concourse and 161st Street, the imperious old Supreme Court Building still cuts an imposing figure. With its bas-relief elevator doors and cavernous courtrooms, the building evokes the majesty of a different era --both for justice and for the Bronx. It is 10:39 a.m. as I bluff my way through the attorneys’ entrance, bypassing the snaking line of people at the metal detectors. Since September 11, attorneys are technically required to have a new high-security pass in order to avoid the line. In the intervening years, almost everyone complied, submitting to the indignity of a background check and registration, but like a few others, mostly the older or more radical lawyers who had been in the Bronx for years, I found the new requirements offensive --after all, they only applied to defense attorneys. Assistant district attorneys, clerks, court officers, and judges were exempt.

  So I never bothered to get the new card but persisted in using the attorneys’ line as if it were my God-given right. Usually I walk right in, though a few sergeants, knowing full well who I am, delight in the petty exercise of making me submit to the line and a nice, slow, thorough search.

  Nestled in a corner of the fourth floor of the Supreme Court, part 20 is known rather cryptically as the “Standards and Goals” part --“Standards and Goals” being a neat court euphemism for “old case,” “part” being just another term for courtroom. Once an incarcerated client has spent fourteen or fifteen months lolling around Rikers Island waiting for a trial, his case is likely to be shipped out to part 20. It’s the fast track to trial, and all three of today’s homicides are already there.

  Inside, Judge William Mogulescu is likely to be exasperated, as usual. Mogulescu is fair and smart, but few lawyers please him. They all seem to be late, foolish, or unprepared. At just over six feet with a thick black mustache, he has the gaunt good looks and subtle dismissive wit of the lefty defense lawyer he used to be. Mogulescu is one of the few judges who wound up on the bench despite having represented radicals and protesters in many of the politically charged cases of the seventies and eighties. Named to the bench by Mayor David Dinkins (the first African American mayor of New York City), Moge is an artifact of New York City politics and an object lesson in the importance of judicial appointments. For years, many of the city’s judges were hacks --overwhelmingly white, politically connected former prosecutors, they terrorized both defendants and the lawyers who appeared before them, meting out justice that was informed more by the code of the streets than by any actual legislation. They were, basically, crazy.

  “All the Jews up against the wall!” That’s what Judge Michael Curci once bellowed at a startled panel of jurors sitting patiently in his courtroom. Looking confusedly at one another, several men and women rose slowly from their seats. “You’re all excused!” said Curci, his pale, flabby arm extended toward the exit from his courtroom. “All Jews, out!”

  To Curci, a former Republican state senator, this was a matter of expediency and not anti-Semitism. A completely Looney Tunes jurist, with an Elmer Fudd face, a Casper the Ghost complexion, and a wisp of hair that seemed drawn out of his scalp, Curci was known for his utter unpredictability and his wonderfully inventive vocabulary. Court officers and stenographers assigned to his part kept a running glossary of his hilarious malapropisms and incomprehensible phrases, such as “dangerosity,” “the psychic transmogrification of the Gestalt,” or “assidulosity” --as in “I will sign your subpoenas with great assidulosity, Counselor!”

  An old-school jurist, the kind that wound up on the bench by slipping the right person thirty-eight thousand dollars in an envelope, Curci read Soldier of Fortune with great assidulosity and loved nothing more than to play with guns. Once, during an attempted murder case, he famously instructed a court officer to hand him the alleged murder weapon. “I assume this is unloaded?” said Curci, jacking the slide commando-style and pointing the weapon in the direction of the defendant while half the courtroom ducked. “Uhhhh, I sure hope so, Judge,” said a petrified ADA.

  A beat as Curci considered.

  Gazing at the gun longingly, he sighed. “This portends great dangerosity,” he said, and then, handing the gun back to the stunned court officer, “Take this weapon back to the robbing room and discharge it if necessary.”

  What had set Curci off on his get-out-the-Jews rant was a succession of mild-mannered people patiently explaining that if they were to be chosen as jurors they’d need to be absent on the Jewish High Holidays. Curci apparently wished to work on Yom Kippur, and so, to minimize further delays by others with the same problem, he saw fit to order them all up against the wall.

  As odd as he was about picking a jury, Curci was just as crazy without one. In one legendary case, Curci subjected a defendant who’d been foolish enough to waive a jury to a full-court mock deliberation. “If this were a jury trial, I’d instruct on self-defense,” Curci reportedly told the defendant. Then he spun his highbacked chair toward the courtroom wall, leaped to his feet, and declared, “The record should reflect, I have now charged myself with self-defense.” Plopping his squat little body back into his chair, he spun back around and faced the parties in the courtroom. “I am now deliberating!” he said, swiveling round and round in his chair.

  The prosecutor, defense lawyer, and defendant all watched as the plump judge switched directions and spun back the other way. Around and around he went. “I’m still deliberating!” Curci said merrily as the defendant waited tensely to find out if he was going to prison or not. The seconds ticked by while the courtroom stared at him, agog. Finally Curci’s chair ground to a halt. Cocking his head like a retriever who can’t find a ball, he fixed the defendant with a solemn stare as he declared in his tinny little voice: “That’s it. I’m hung. Send it out!”

  Mogulescu is no Curci. And he is in part 20 for a reason. He hates excuses and browbeats lawyers into either trying cases or pleading them out --NOW. Mogulescu is one of my favorite judges. As difficult as he can be, he is unusually thoughtful and almost always fair. But he is also a big bully. Moge does what he does because he believes that you have to be a bully in the criminal justice system to get anything done. To his credit, it’s also true that what he wants done is usually the right thing.

  Years of my life have been spent navigating the dangerous reefs of a belligerent judiciary. Half of being a good lawyer is learning how to anticipate and cope with the idiosyncrasies of various judges: Darcel Clark, who can’t stand being interrupted; Barbara Newman, who requires a soothing, confident tone; Joseph Dawson, whose hot button is tardiness; or old Muriel Hubsher, who just wants to have a nice chat about fashion before sentencing a client.

  But while knowing judges’ foibles is one thing, being immune to their vitriol is quite another. It’s hard to stare down a judge. They have enormous power --not just to jail you but also, as my early encounter with Tona taught me, to hurt clients.

  The result of this power is a constant deference that turns many judges into spoiled divas who can’t stand even a hint of disrespect. Judge Carol Berkman once called me up in the middle of a hearing. “Mr. Feige,” she said, “let me be perfectly clear --my life is a living hell, and one more question out of you and I’ll make your life a living hell. Now shut up and step back.” I was also there when Judge Edward Rappaport, once a silvertongued dean of the Brooklyn defense bar, spewed, “Fuck you too” to a manacled defendant who wouldn’t accept his suggested plea. Self-important judges can be surprisingly nasty.

  It is also true, though, that many nasty judges are all show. Take Blog the Cave Judge. Blog’s real name was Alan Lebowitz, and way back in 1992 he taught me a valuable lesson about pushing the limits.

  Blog was trembling. His face was red, and he was doing a lizard
like thing with his tongue --flicking it just outside the left corner of his mouth.

  “Ooooh, Mr. F-Feige,” he was stammering, “do not tempt me.”

  His tiny courtroom was packed. The two-dozen mismatched chairs were filled with lawyers and misdemeanants awaiting his adjudication. It was nearly 3:00 in the afternoon, and there were at least a dozen cases left to go.

  It had already been a long day, and by the time I got to Blog, I’d had enough. Enough of petty judicial tyranny, enough of my clients being mistreated and incarcerated for no good reason, enough of stupid prosecutors and lying cops --enough already. I was one very young, mightily pissed-off public defender, and Blog the Cave Judge was not about to back me down.

  “Judge,” I said sharply, trying to interrupt him. We had been arguing for several minutes.

  “No, Mr. Feige. No!” He cut me off. “Not another word from you.” My client gaped at me. He’d wanted a lawyer to fight for him, but he could sense that this was getting a little out of hand.