by David Feige
Given that he’s already serving a lengthy sentence and that the case against him is already almost twenty-five years old, adjournments really don’t matter much in Alberto’s case. As with clients like Jimmy, Alberto’s self-defeating jailhouse lawyering seems to know no bounds.
“You know,” he said gravely the last time we met, looking at the interpreter with a canny smile, “when they arrested me, no one read me my rights.”
Nearly every week some client tells me that. Like Alberto, most of them think not reading you your rights means that the case has to be dismissed. Nothing could be further from the truth. “Reading me my rights” is, of course, an allusion to a famous Supreme Court case, Miranda v. Arizona. It was that case that codified the speech we’ve all heard a thousand times in every cop drama ever made --“You have the right to remain silent, etc.” Unfortunately for my clients, Miranda is essentially a dead letter. The politics of statements are such that over the years judges have found myriad ways to ensure that anything defendants say will somehow be used as evidence against them.
For starters, Miranda doesn’t even apply unless a prosecutor wants to use a defendant’s incriminating statements against him at trial. Exculpatory statements --things like “I didn’t do that” or “the sex was consensual” --aren’t subject to Miranda, and aren’t even admissible by the defense. It’s why talking never makes sense --the prosecutors can use the bad stuff, but the defense can’t use the good stuff. Also, because Miranda is not so much about being arrested as being interrogated, there is an additional category of statements to which Miranda doesn’t apply --something called noncustodial questioning. Judges try to wedge open this unrestricted space as wide as they can, often finding that an interrogation isn’t custodial until the cops snap on the cuffs or lock the door. Open your mouth before then and whatever you say is almost certain to boomerang.
The travails of another client of mine provide a good example of all this. Taken from his building and placed in the back of a squad car, in which the locks are controlled from the front, James was brought to a police precinct, where he was marched in past the desk sergeant, up a guarded set of stairs, down a short corridor of scuffed linoleum, past a series of armed police officers, and into a tiny interrogation room in the middle of the Homicide Task Force detective area. There he was questioned about a robbery and shooting. The room had three chairs, a long heavy table pressed up against the wall, the obligatory one-way mirror, and a door that bolts from the outside. And there, behind closed doors, his chair pressed up against the wall, with two detectives leaning in --one sitting across from him, the other sitting at the edge of the table effectively blocking his exit --James was interrogated for four and a half hours.
And did he talk? You bet he did. Just like almost everyone else I’ve ever represented. Isolated and alone, terrified by the surroundings and the detectives, pretty much everyone talks. The idea that anyone encircled by armed detectives and shut up in an interrogation room of a police precinct feels free to leave is a bit absurd. In fact, the overwhelming experience of clients I’ve spoken to is feeling trapped and frightened. And to a person, they believe (rightly) that if they tried to get up and walk out, they’d be physically stopped and possibly assaulted.
But judges hate to suppress confessions, so when it came time to argue that James’s interrogation was “custodial,” and thus his statements should be suppressed, the response from the ADA, buttressed by sworn police testimony, was sadly familiar: sure the door to the interrogation room was slammed shut, they admitted, but it wasn’t bolted shut, so James had been “free to leave at any time” (in the cop’s own words on the stand). The judge (as they all do) found this shameful argument compelling.
Of course, there are many situations in which someone is clearly arrested at the scene of the crime. Being placed in handcuffs right away might seem to end the argument as to whether or not the defendant was in custody. But porous Miranda carves out exceptions for this situation too by exempting what are termed “spontaneous statements.” These are generally understood to be things just blurted out by the defendants. Some of these are devastating and others hilarious. A favorite of mine in a drug possession case in which an officer fished four vials of crack from a client’s pocket: “These are not my pants.”
Explaining these legal distinctions to clients like Alberto is hard --his understanding, reasonable for anyone but a lawyer or inveterate cynic, is that the rules simply mean what they say. It’s hard to explain that under the twisted law of the admissibility of statements it doesn’t really matter whether or not the cops read him his rights.
Of course, explaining that the cops are actually allowed to lie is even harder. As it turns out, police officers are perfectly entitled to deceive suspects in order to persuade them to confess. Cops love this fact, and veteran detectives are often proud of their inventiveness when it comes to tricking people they consider stupid perps into confessing. Lying about evidence found at the scene, falsely suggesting that a codefendant is fingering them, or fabricating the existence of nonexistent eyewitnesses --all have been sanctioned by judges and are regularly used to extract statements from clients.
Given all these exceptions, pretty much anything a defendant ever says during an encounter with the police will ultimately be used as evidence against him. The impact of this fact, like so much else in the system, falls disproportionately upon the criminal defendants who don’t have a lawyer on retainer, or don’t know who to call when they get arrested. They are the ones most prone to relentless interrogation, most fearful of the police, and least able to call upon professional help. And as a result it’s their statements from every step in the process that come back to haunt them come trial. Alberto will be no exception.
The court officers uncuff Alberto from his crutch, and he leans forward awkwardly --an aging man, eyes narrowed by crow’s feet, clutching the battered wooden counsel table for support. Up on the bench Moge seems momentarily out of steam. This makes things easy. Standing at the table with my hobbled homicidal client murmuring to me in Spanish, I get a quick adjournment, glance at the clock, pat Alberto on the back, give Reginald the thumbs-up, and sprint for the door, hoping beyond hope that I can get some cases done over in criminal court.
I’m halfway down the hall when I remember that Reginald wanted to talk.
Going to the cells upstairs is a twenty-minute investment, and I’ve got half a dozen people waiting over in criminal court. It’s closing on noon, and if I don’t get to criminal court quickly, it is almost certain I’ll wind up spending the entire afternoon there. I do the calculus quickly --Reginald can get to the phones at Rikers pretty easily, and at least three clients have already called the office to complain about waiting. On the other hand, Reginald doesn’t ask for much, the pens above Moge’s courtroom are easy to get to, and one of my favorite corrections officers sits the desk up there. She’ll probably give me a few minutes with Reginald in the high-security area. That’ll save some time, I think, pivoting toward the unmarked door that leads to a dingy staircase that ends in a gray steel door behind which my incarcerated client waits.
It’s usually noisy on the inside --inmates yelling between cells, corrections officers shouting out names --but today things seem almost placid. Officer Cordero takes my ID and smiles when I ask her if I can talk to Reginald around the corner rather than go all the way up to the general population interview area on the seventh floor. “Sign the book,” she says, inclining her head toward the back with a slightly exasperated smile.
“You’re the best,” I tell her as another corrections officer goes to get Reginald from the big cell where two dozen men wait for their few minutes in court or brief legal visit.
From a cell: “Yo, Feige.”
It’s Shamar --a kid I represented years ago. Shamar has gotten big since I saw him last. Gone is the skinny kid with the devilish smile and smooth delivery. In his place is a bruiser with a tough-guy face and cold eyes. Sha is lounging conspicuously in his
cell, ostentatiously taking up more space than he deserves, the other inmates --four or five of them, old and young --crammed into the small cell, making room by perching on the edge of the bench or sitting on the floor. On seeing me, Shamar hops over to the bars, his perfectly white sneakers signaling a man well taken care of on the inside. Leaning into the bars and affecting a conspiratorial tone, he says to me, “You gotta take my case, man --I ain’t seen my lawyer in months. I’m telling you, months!”
“Sha,” I say firmly, “I ain’t takin’ your case. Who’s your lawyer? I’ll call him for you --tell him you need to talk to him.”
“Nah, man.” Sha is insistent. “I already called him. I need you, Feige --c’mon, you know me. I need you.”
It’s always nice to be liked, even when the admiration is the desperate, transparent hustle of a kid facing a life sentence. In a world that rewards a mien of tough callousness, subtle signs of need or pain have to be carefully masked --presented as hustle rather than weakness. Sadly, taking the time to figure out which is which is a luxury I can seldom afford. There are certainly times when begging works on me. There are a large number of cases that I’ve taken just because an old client asked, or the sister of an old client called, or someone thrust themselves against the bars and told me a tale that made me want to listen, despite the bruising caseload, screaming judges, and constant phone calls.
The funny part about Sha’s pitch is that it is almost certainly true --that he, like many jailed clients, actually hasn’t talked to his lawyer in months. Even in a reasonably well-funded system like the one in New York City, this is a common complaint. Between the daily crush of the courtroom and the pressure to get cases done, lawyers often don’t bother to see clients --some adjourn cases without even bringing them up to the courtroom. It’s called “waiving a client” --that is, waiving a client’s right to be present for the mundane proceedings against him --this is a tradition in criminal court, and a decision almost always made based on the vagaries of the lawyer’s schedule rather than the client’s needs. In fact, it’s often done without consulting the client at all.
Unfortunately every court day, whether they’re going to see their lawyer or not, Shamar and thousands of other incarcerated clients like him are woken up at four in the morning, piled onto rickety old school buses outfitted with metal mesh windows, and driven from Rikers Island to courthouses around the city. The New York City Department of Corrections is almost unimaginably vast, housing more inmates on a typical night than the entire prison population of forty states. In shuttling Sha and his locked-up brethren around, the several hundred DOC buses log an average of thirty-five hundred miles every day.
When the inmates actually get to court (a process that, thanks to security measures, can often take several hours), they are offloaded into huge pens (where assaults abound), which in turn filter into smaller pens arrayed around the Supreme Court building. Shamar, like most incarcerated clients, regularly spends an entire day in a bull pen without ever being called to court or even talking to his lawyer. Inmates call it “bull pen therapy.”
“I’ll call him for you, Sha. That’s all I’m gonna do. I’m just being straight with you, brother.”
“Okay, Feige. Thanks.”
I shake his hand.
“Good luck with it, okay?”
“Don’t worry, Feige. I’ll beat it,” he tells me with more confidence than I suspect he should.
Around the corner there are three narrow rooms accessed through locked steel doors. The middle one is for lawyers, the outside rooms for clients. The top two thirds of the long walls in the center room are made of steel mesh, allowing lawyers and clients to face each other. Farther down the hall is the Hannibal Lecter cage. It holds a single manacled client behind its thick grate.
The door to the middle room is ajar. Inside is a cross section of the Bronx legal community. In one corner, sitting across from a well-coiffed white guy, is Murray Richman, the self-proclaimed king of the Bronx bar. Murray’s stature in the legal community is hard to overstate --he represents rappers (it was his client that went to prison in the Puff Daddy trial) and politicians, hustlers and fraudsters, charging them tens and sometimes hundreds of thousands of dollars for the privilege. He is a self-made guy who glad-hands his way through the courthouse as if he’s the mayor. In a sense, he is.
Already past the age of usual retirement, Not-a-worry Murray looks a little like a puffin, resplendent in brash tie and matching pocket square. His expensive double-breasted suit covers a thick midsection, and his hair is combed in a way that suggests a great deal of attention has been lavished on every strand. He has a wide, round face and twinkly eyes, and he greets people with a “howyadoin?” honed by years of ingratiating practice. A charmer, Murray brings a winning theatricality to every sentence he utters. And he is utterly unselfconscious --as if he’s completely forgotten that he’d long ago temporarily cast himself in a part written for someone larger, leaner, and more debonair.
A colleague of mine once ran into Murray on the courthouse steps. She had her six-year-old kid in tow and introduced the two of them. “This,” she said to her child, “is Murray Richman, one of the most famous lawyers in the Bronx.”
“Hi,” said the kid shyly.
Leaning in close, his squat frame bulging with self-importance, Murray gave the kid his pitch.
“You know what?” he asked.
The kid shook his head, his eyes wide with interest.
“I’m the best lawyer in the Bronx,” Murray said. “And I’ve never lost a case.”
“Really?” The kid was impressed.
“Really.”
Murray, despite the rather compelling documentary evidence to the contrary, was dead-serious.
Yet if he has lost more than a few cases here and there, and sometimes has a loose grip on the applicable case law, Richman has great sway with both judges and juries. Judges respect him because he is savvy and fearless, but also because he is deeply involved with the politics of the judiciary. Murray gives generously to judicial candidates and is active in local Bronx politics --something never lost on the judges he appears before.
Juries love him too. They like his perpetual tan and his flashy ties, his homespun antics and his theatrical cross-examinations. And he knows how to pick them. Having lived in the Bronx for the better part of a century, Murray knows every corner of the borough like a beat cop.
Seeing him, I smile and give a half wave. He nods back at me without interrupting the sentence he’s hurling toward his client --a calm white guy in a wiseguy suit --with utter conviction. And as I sit down and watch him work, I see again the pathological confidence that makes him so appealing.
Sitting with his back to Murray, facing a different client in the opposite prisoner room, is the anti-Murray, Mark Brenner. Brenner is so loony that he once hauled off and kicked a client right in the middle of Troy Webber’s courtroom. He also is said to have once pled a client charged with a driving offense to a prison sentence longer than the maximum allowed by law. (Just as scary, Judge Megan Tallmer apparently okayed the plea. On resentencing, Brenner advised the guy to just take the maximum.)
Wearing boat shoes and smudged white chinos, Brenner has his long white hair pulled back into something that appropriates the worst qualities of both a mullet and a ponytail. The overall effect resembles a Daniel Boone cap bleached blond.
Brenner isn’t a public defender in the usual sense. Instead of practicing with a criminal defense organization, he’s a solo practitioner who gets cases through an “assigned counsel plan.” To a client this is a distinction without a difference. To them, any free lawyer is a public defender. That confusion is unfortunate for the rest of us.
Brenner’s client is not white, and not calm. “Yo, I know guys who got six flat for a body!” he exclaims. A skinny kid with a shaved head and spindly arms, he smacks the palms of his hands flat on the desk, producing a sharp sound like a punch hitting bone. Brenner, who should have found other work years ag
o, sits impassively, a look of disgust on his face. I sit down two seats away, trying hard not to listen, hoping that Reginald will be brought in quickly.
“Sha-tak,” says Brenner, a note of world-weary petulance inflecting his voice.
“It’s Shateeeek,” the kid says loudly, swinging his head violently back and forth: “Shateeeek,” he repeats, elongating the hard e sound, holding it for a full half a second. “You pussy-assed motherfucker, can’t even get my fucking name right and you asking me to cop out?”
“Hey, Shateeeeeeeeeeeek.”
Brenner’s deliberately mimicking the kid now.
“Shateeeeeeeeeeek, fuck you. I don’t give two shits what you do. You don’t wanna cop out? Huh? Then don’t fucking cop out --go to trial for all I fucking care, get your ass forty or fifty years! I don’t give a fuck what you do!”
“That’s right you don’t!” Shateek says, palms up as if he’s made his point.
They’re screaming at each other now, and the other lawyers huddled in the small space lean in toward their clients, making sure they can be heard above the din. No one interferes, no one tries to calm them down, and lawyer and client go on yelling at each other for another four or five minutes, during which Reginald, with a sidelong glance toward the shouting, takes his place across the wire mesh from me.
