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

by David Feige

  “Take your time,” Infante said. “No one can see you.” “I don’t see anyone.”

  “Take your time,” Infante said again, an edge in his voice. A few more seconds.

  “I don’t see anyone,” the woman repeated feebly, seeming confused.

  “Just try to remember.” Infante again. It had been forty-five seconds, maybe more, and the tension was palpable. Infante was trying to force a pick.

  “She just said she doesn’t see anyone,” I said sharply.

  “Quiet, Counselor!” Infante snapped.

  “Sorry,” the witness said simply before being led out. The blinds came down. Infante glared at me.

  Another detective from the squad brought in the next witness, a man this time, a tall African American with darting eyes.

  “See anyone?” Infante asked.

  The man, stooping toward the window, started to make a light humming sound, as if he was thinking.

  “Take your time,” Infante urged. The man seemed as though he was going to say something at any moment. His lips were pursed, and he continued to hum. I counted the seconds off, trying to keep track of how long it was taking him, and he finally muttered something.

  “Nope.”

  That was it. Infante was visibly upset.

  “Look again!” he said sharply. My heart was racing as I tried to decide whether or not to interrupt again, the prospect of two no-hits in a lineup making the entire evening seem like a very worthwhile temporal investment. Another twenty seconds slid by. It’d been more than a minute since the guy had spoken.

  “Are you sure?” Infante said. “No one can see you . . . don’t be afraid.”

  The man shook his head, though Infante’s urging seemed to fluster him. He took one more look --almost exaggerating the motions of attentiveness --when I finally said, “Seems like that’s a no.”

  “Yeah,” agreed the guy. “I don’t see no one.”

  “Thanks for coming in,” Infante said, but the tone made it clear that the unspoken end of the sentence was “you fucking skell.”

  The lineup room door was opened. Reginald was escorted back to the cell. The fillers relaxed, tearing off their fake mustaches.

  I asked Infante for copies of the lineup Polaroids. “Forget it,” he snapped, “you’ll get ’em in discovery.”

  I fixed him with a serious gaze. “Detective, with two no-hits and no further witnesses, I assume you’ll be releasing my client?”

  Infante ignored me.

  Another detective ambled over. “What happened?” he asked.

  “Two no-hits,” Infante said.

  The other cop raised an inquisitive eyebrow, but Infante hooked a thumb toward the cage where Reginald now stood.

  “Book him anyway,” he said.

  That was eighteen months ago. Reginald has been in jail ever since.

  - - - -

  On the one hand, Reginald’s record is so awful that it is unlikely that the DA’s office will be interested in working out a plea. On the other hand, from the paperwork, it appears that there is no real case against him. This is just the kind of intractable situation that usually results in one of the rarest events in the criminal justice system --a trial.

  Trials, though they capture the imagination of the public and inspire young people to become lawyers, almost never happen. Though I handle hundreds and hundreds of cases a year, if I try three of them it will have been a busy twelve months; almost every case is resolved through dismissal or plea. The statistics, particularly in the Bronx and particularly regarding misdemeanors, are staggering. Of the more than fifty thousand misdemeanor cases processed in 2003, twenty-three resulted in jury verdicts. More felonies go, but still not too many. For all the drama of a courtroom title fight, most everything is actually decided before weigh-in. That being said, trials usually involve a select subset of cases --the very innocent people and the very bad guys.

  Innocent people go to trial mostly because they’re naive. Like Clarence, almost all of them tragically believe that the system will work and will exonerate them. In their minds, it’s only a matter of time. And no matter how many times I explain that innocent people can get convicted, I’m regularly confronted by the touched smile of the truly innocent. It is a look that is similar, though not identical, to the calm of the true sociopath.

  The preternatural calm of the truly innocent is disconcerting and disorienting: precisely the people who should be most furious, most incensed at the injustice of the system are often the least belligerent and the least angry --even when they are wrongly in jail. They evince confusion rather than anger, devout in their faith that the process can be counted on to exonerate them. Their certainty, of course, does nothing to help my anxiety.

  The other chunk of the trial docket is made up of bad guys and serious cases. The reason serious cases, especially murders, are overrepresented in trial statistics is that despondent clients figure, I’m gonna do twenty years if I plead, so I might as well go to trial. This is a tough attitude to combat, and I’ve spent years of my life working with clients to overcome just this kind of counterproductive (if not entirely irrational) thinking. What they often ignore is that a trial loss will almost inevitably result in a much longer sentence (known in many courthouses as “the trial tax”). Still, twenty years can seem like a lifetime, especially to a kid, and given how hard life on the inside is, it may well be. In those cases, just like in the ones with the confident, innocent clients, sometimes you just gotta stop arguing and pick a jury.

  But the truth is, if you are actually trying a case, you’ve already lost. It’s not that you can’t win the case, or even that a trial wasn’t the right move. It’s just that being on trial means that your other skills --negotiation or clever legal maneuvering --have failed, and there is nothing left to do but gamble with someone else’s life. It’s what I’m about to do with Reginald.

  Glancing up at the court officer by the back door, I realize I just got lucky. Reginald strides in --his white knit kufi perfectly covers his handsome shaved head, his gait is smooth and deliberate. He flashes me a smile when he spies me. Right behind Reginald, Alberto hobbles in --hands cuffed to his crutches. I have no idea why Alberto is always hopping. He’s a tough guy, so a jailhouse assault is unlikely. I think he’s had a broken leg since I met him.

  The two of them, handsome Reginald and hobbling Alberto, are led to the defense table. I take up my place just behind them, waiting for their cases to be officially called into the record. It’s 11:35 a.m.

  Many people charged with murder wait two or even three years for a trial. In New York, there is no statutory right to a speedy trial in a homicide, and as a result (and because murder cases are complicated and usually prosecuted and defended by very experienced and very busy lawyers) the mere allegation can land you in jail for a few years.

  “Hey, Dave,” Reginald says as he inclines his head slightly. “If you got a second, can you come on up and see me afterwards?”

  I nod.

  The clerk clears his throat.

  “Number nine on the calendar, indictment 3209 of 2001, People versus Reginald McFadden,” he says as Reginald steps up to the table.

  “Good morning, Your Honor,” Reginald says, smiling at Moge.

  “Always a pleasure to see you, Mr. McFadden.” The judge nods.

  This is another one of Mogulescu’s strengths --he actually interacts with the defendants before him in a decent, civilized manner. Most judges berate them, urging guilty pleas while their lawyers stand there like idiots. Some, like Ruth Sussman, a Smith girl turned prosecutor and then judge, are so obviously disdainful and aloof it seems as if they are hardly aware that there is a human being in front of them.

  But there are a few --like Moge, or Caesar Cirigliano, a once-jovial, heavyset, cigar-chomping legal aid lawyer turned by a heart attack into a svelte, healthy-living judge --who are constantly aware that they are judging cases involving living, breathing, complicated people. Moreover, they realize that their judicia
l decisions are important not just to their own careers, but to the lives of the defendants, the victims, and the community. These are the judges it is a pleasure for clients to appear before. And the truth is, they are also the judges who are better for all involved, not just the defense, because they actually care. Bad judges may seem tougher, but in the long run, their generic, bureaucratic, reflexively proprosecution decisions undermine confidence in the criminal justice system. This is particularly true in the poor African American communities that provide many of the system’s complainants and defendants. What they want, more than anything else, is a fair system, but what they perceive, whether from the perspective of a juror, defendant, or darkskinned citizen walking the streets, is a system in which the powerful bend the rules to fit their own agendas.

  It was judges like Alan Broomer that gave them this idea. A former bodybuilder and long-time prosecutor, Broomer was a sadist in a robe. Broomer’s body looked like a blow-up Mr. Universe doll that someone had let the air out of. Though he reputedly worked out for hours every day, age had larded Broomer’s broad body with flesh that seemed to drip from his still-powerful frame. Broomer’s courtroom was not so much a temple of justice as a Starr chamber. Broomer was so pro prosecution that he’d help assistant DAs with their questioning and would regularly depart from the approved jury instructions to explain his own take on a case. This sort of behavior often got Broomer reversed by appellate courts, which dryly cataloged his sins by way of rebuke.

  Judge Broomer, they’d note, “delivered a lengthy charge in which he instructed the jurors on the importance of harmonizing their views and avoiding emotions. In the midst of this charge, the court stated: ‘And when you examine it logically, if you were twelve computers, you’d all reach the same results because you all have the same knowledge of the case. None of you knows anything about the case more than the others. If you have twelve computers and they’re all identically programmed and you push the verdict button, the verdict will be guilty.’ ”

  The verdict will be guilty? That guy got a new trial.

  Broomer once discharged a juror for farting; the defendant in that case got a new trial too. As the appellate court wryly noted: “A number of jurors complained of another juror who emitted a foul body odor and was flatulent. The court found that the juror had thereby engaged in misconduct of a substantial nature as contemplated by CPL 270.35 and discharged the juror without having interviewed him.” Oops. Chuck an alleged farter without even asking? That’s a new trial. And so is explaining the delicate question of identification by citing musical theater. Broomer did that too.

  “You know how in that song ‘Some Enchanted Evening’ someone looks across a crowded room and sees a face that changes their life that they never forget?” Broomer asked in an identification case. “This case is like that.” Wrong again.

  “So what are we doing with Mr. McFadden’s case?” Moge demands.

  He’s looking at the district attorney’s table. There, the same assistant DA who will handle Alberto’s case is once again flipping through the long line of white-flapped folders that line the prosecution’s table.

  “How about two weeks?” pipes the ADA, asking for the default, I-don’t-really-know-what’s-going-on-in-this-case adjournment period.

  “Work for you?” Moge asks me, citing a date in January.

  “Sure,” I say. What else can I say? Since there is no speedy trial right in a murder case, the DA’s office sets the pace.

  “Done,” Moge says, jerking his head upward and to the right, his expressive eyebrows leading the way in a get-out-of-mycourtroom nod. But I’m not leaving just yet.

  S i x

  11:38 A.M.

  Alberto hobbles up. I’ve barely spoken a word to him in months.

  Alberto is charged with a two-decade-old homicide and, according to the DA’s murmurings, may be a suspect in two others. A short, graying Cuban, Alberto has spent most of the years since the Mariel Boatlift in prison. In Alberto’s case, unlike in nearly all of my other cases, I’m not fighting for my client’s freedom; no matter what happens in the murder case, Alberto’s still got another fifteen years to serve on a rape.

  Alberto wants a trial. Why, I have no idea --the entire case is built around a confession he signed while already in prison. He called the detectives himself. It seems he wanted to implicate a former partner in crime who’d stopped sending him commissary money --the cash inmates rely on to buy (usually at obscenely inflated prices) basic prison necessities like soap, deodorant, and candy. Apparently, soap was something Alberto never intended to do without. And so a few years into his seventeen-year sentence for rape, Alberto decided that he was going to inform on his old female acquaintance. He called the Cold Case Squad and told them he had information about a twentythree-year-old murder.

  For his efforts, they charged him with the crime. Alberto’s predicament dramatizes a core principle: making a statement to the police is never --never --in a criminal defendant’s interest. Talking to the cops is generally a bad idea, even if you’re the one who called them. This is true whether you are Martha Stewart, who secured a jail term when she foolishly decided to make a voluntary statement to the authorities, or Alberto, who fancied himself a clever jailhouse lawyer, confident that he could get even by manipulating the cops. It is one of the few things that every criminal lawyer will agree on: in the crucible of police interrogation, the police will always win.

  In most states, including New York, when two or more people set out to commit a felony and someone dies in the course of their committing that felony, even if the death may not have been part of the plan, pretty much everyone involved in the crime can be prosecuted for what’s called “felony murder.” Alberto didn’t seem to realize this. And as a consequence, a statement like the one he signed, one that read “we went to rob the payroll, and then Angie shot the clerk,” presented far more than a pronoun problem for him. The we was a tight little noose, and by using it Alberto obligingly handed prosecutors the business end of the rope they could use to hang him for a good long time.

  I have told clients a thousand times: if the police try to talk to you, just stay calm, ignore everything they ever tell you, and ask for a lawyer. Repeatedly. Insistently. Relentlessly. And hard as it is to believe, this is the best course of action whether or not you are guilty of anything. No one should talk. But nearly everyone does, and almost everyone regrets it.

  Having procured a signed confession from Alberto, the prosecutors need to do two simple things in order to use it against him and potentially convict him of murder. First, they have to notify me that they intend to use the statement, and then, if I properly challenge the admissibility of the statement, there will be a suppression hearing in which I can press my challenge by arguing, among other things, that they got the statement in violation of Alberto’s Miranda rights.

  The notice requirement is easily satisfied. Criminal Procedure Law Section 710.30 (1)(a) explains that within fifteen days of arraignment the DAs have to tell the defense about any statement that the prosecution intends to introduce in their main case. This is done in different ways in various jurisdictions. In the Bronx, this is done orally. That is, when a case is first before a judge, the DA will say, “710.30 (1)(a) --the defendant stated in sum and substance at the time and place of arrest . . .” and then read for the record the statement they intend to introduce. In Brooklyn, however, these notices are in writing. There the prosecution hands over an actual piece of paper (in triplicate) that describes the statement they intend to introduce. Back in Brooklyn, I had posted some of the more colorful statements on my office wall.

  Please take notice that at the time and place of arrest the defendant stated in sum and substance: I am a warlock, and all who fuck with a warlock must die. [obstruction of governmental administration]

  I didn’t rob him: he robbed me. [robbery]

  Worth it? Clearly you ain’t never had my blow jobs before. [prostitution]

  Not all statements are amusin
g, of course. Many are tragic; a few are unsettling. A client of mine, for example, once distractedly explained: “She didn’t have the money, so I shot her in the head. Then I went back to Brooklyn.” The banality was nearly as chilling as the crime itself.

  The more serious the case, the more covetous the police become about getting a confession. They press harder in murder cases than in commercial burglary, harder in robbery cases than in simple assaults. And the more mentally retarded, naïve, or young the defendant, the more likely it is that there is a full videotaped confession. I have yet to see a case in which a young kid, thirteen, fourteen, or fifteen years old, is charged with a serious crime in which there was not a statement --sometimes written in the detective’s crabbed scrawl, but more often a damaging admission caught on videotape. In murders too (other than Reginald’s), self-incriminating statements are commonplace.

  Alberto only speaks Spanish, and since my usual little check-in patter comes off as halting and stiff when filtered through an interpreter, I don’t really bother. As the clerk calls his case, Alberto struggles up, leaning on his crutch and hopping the last few feet to the counsel table.