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

by David Feige

  Handing me a copy of the letter, Evelyn, Judge Cohen’s trusted clerk, smiles kindly.

  “Don’t worry about this,” she says. “Thanks for trying.”

  “Oh, yes, Mr. Feige,” the judge chimes in from above. “You were wonderful, and he was lucky to have you --please don’t be upset in the slightest. I’ve found him new counsel, and he’ll be fine.”

  “Thanks, Judge,” I say, smiling.

  Down the hall, inside the trial assignment part known as TAP-1, Judge Darcel Clark is dispensing justice at a rapid clip. Every available trial judge is already busy, so her job for the rest of the day is to adjourn cases, push pleas, and survive her calendar. There are more than seventy-five cases on it, and even though it is nearing lunchtime, her courtroom is packed. At least a dozen lawyers are waiting to get their cases called, some sitting on the cramped benches in the front row, others milling around or wandering in and out. It takes all of one look to realize that I am never going to get anything called in there by lunchtime. And so, with an apologetic nod to my client, I retreat, heading across the hall to the overflow arraignment part, hoping to catch Cassandra. It’s closed.

  Next, I consider running upstairs to the domestic violence part --but by the time I get there, it’s likely to be closed as well.

  I really shouldn’t have taken the time to see Reginald.

  Heading back up the escalators, I take a mental inventory of what I’ve done, Clarence, Reginald, Alberto, and also what I have left to do, Najid, Cassandra, Hector, and Jaron.

  Upstairs, on the mezzanine, the court officer with the bullhorn is still making a racket. It’s still a few minutes before one, and if I leave now, I can just beat the lunchtime rush of frustrated defendants and impatient lawyers. Heading out through the revolving doors into the cold wind whipping down 161st Street, I drop my chin, shove my hands deep into the pockets of my winter jacket, and, trying hard to enjoy the dull winter light, trudge back toward the office.

  E i g h t

  12:53 P.M.

  Upstairs, back in my office, I dump Clarence, Alberto, and Reginald’s documents --each in a heavy red accordion file --in a stack on my desk. I’m tired and hungry, and I don’t have the patience to update them in our case-tracking system just now. Besides, my phone is chock-full of messages.

  Whenever I don’t finish up by lunch there are calls from clients who spent their morning waiting in criminal court. They range from the patient to the abusive. I don’t resent them --I’d be leaving irate messages too if I sat in criminal court for three hours expecting to see a lawyer who never showed up.

  Scrolling through my messages, I carefully jot down the names and numbers of the mothers, uncles, and girlfriends calling me on behalf of their locked-up loved ones. Dealing with a client through a family member is always slightly touchy --technically, client confidences are only totally secure so long as they remain undiscussed with others, but keeping a client’s family in the loop is important too, so I spend a lot of time figuring out who it’s safe to talk to. Really knowing a client’s family can help the client as well as the case. It is an easy way to communicate certain information, particularly with incarcerated inmates --and when it’s time for a client to take a deep breath and commit himself to a prison term, having a wife or girlfriend or family member on board with the plea and able to promise that they’ll wait makes the deal go down easier. Such things also give a client a future to focus on and a reason to hope --invaluable commodities when facing the misery of prolonged incarceration.

  I have too many courtrooms left to cover and very possibly not enough time. To make it everywhere I have to be this afternoon, I should probably be back in court as soon as it opens. And that means lunching at light speed. It looks as though it’s going to be a gas station day.

  If anything might have converted me to the big-firm life, it was the food. There were few things I loved as much as sitting down to a lavish meal I didn’t have to pay for --the daily perusal of menus that included braised short ribs or delicately poached fish --and if I’ve paid a price for doing the work that I love, it’s a ransom denominated in the currency of culinary pleasure. Up near Supreme Court there is a Burger King and the Courthouse Deli --a vestige of a time when the Grand Concourse really was grand and the streets around 161st bustled with Jews --which offers good matzo ball soup and decent pastrami. Inside the deli, judges, court officers, ADAs, and defense lawyers are all jammed together, mirroring the composition of the courthouse just across the street. But by lunchtime the last thing I want to see is more judges, DAs, and court officers, so it’s a place I rarely go. Across the concourse from the Courthouse Deli is a food court where the aggressively obese can choose from various fast-fried flavors: Arthur Treachers, Taco Bell, the always crowded McDonald’s. Finally, down a bit farther, near my office, is the dirty sandwich deli / bodega --the sort of place that offers up a prayer every day that the health department hasn’t come around. I eat at the dirty deli at least once a week. It’s convenient on harried days and easy on a public defender’s salary.

  It hasn’t always been quite this bad. For years, I got daily takeout from a tiny Jamaican place. Known as the Feeding Tree, it had all of one table and two metal chairs. Reggae music bounced around the counter while Tony cooked in the back and Janice held court up front. But they demolished the Feeding Tree to make room for a new, even larger criminal courthouse, which is in the process of being built just down the street from the current one. And so now, on a good day, when I don’t endure the dirty deli, the British Petroleum station is as good as it gets. The gasoline fumes aren’t too bad, and other than the Courthouse Deli, it’s the only place around to get a salad.

  Most days I have lunch with Robin. She is my confidante, my boss, and the best public defender I’ve ever known. We were close even before we moved to the Bronx, and when she won the contract with New York City to start the Bronx Defenders, I was one of the first lawyers she hired. Robin has both striking beauty and spectacular trial instincts, and in court we make a strange but effective team: my strength is attacking; hers is understanding. Robin has an unnerving way of knowing what everyone in a room is feeling at any given moment --as if she is privy to a TV signal (the Feelings Channel, probably) that no one else is receiving. This gift makes her a great leader and a subtle crossexaminer. It also informs every aspect of the way she practices law.

  - - - -

  People do public defender work for all kinds of reasons: some resent or fear the power of the government; others believe in the process and could actually either prosecute or defend; and then there are client-centered defenders like Robin who are motivated by genuine empathy and a deep belief in the goodness of people. It is no surprise, then, that the public defender office she established would pioneer “holistic” representation --an approach that focuses on the general needs of the client rather than on the specific dictates of a criminal case. It was Robin who believed that a great public defender office should include a civil action project to help with housing and benefits questions, an immigration attorney to help ensure a client doesn’t get deported, a family court unit that tries to keep families intact, and even a community organizer devoted to empowering client communities.

  Robin’s uncanny sense of what is going on in someone else’s head is tremendously practical too. Trying to suss out what a client is really trying to say is one of the most daunting parts of my job. There have been a number of times when a client was trying to tell me something that for some reason I just couldn’t hear. This happened most dramatically not too long ago, with a sixty-two-year-old man who found himself charged with shooting his neighborhood coffee-cart guy in the head.

  I took an immediate liking to Edward, with his graying Black Power Afro; thick, studious glasses; and respectful, deliberate speech. According to the district attorney’s office, despite living a spotless life for more than half a century, Edward decided out of the blue one morning to shoot a random guy in the head and then sit down in the street
and wait to be arrested.

  That was not Edward’s explanation at all.

  Looking earnest, if a bit befuddled, he explained that he’d been about to get a cup of coffee when he heard the shots and stumbled into the fracas that followed. He lay in the middle of the street because he knew he was slow and figured that was probably the safest way to take cover. Taking into consideration the weirdness of the case, the fact that the bullet had essentially bounced off the man’s skull (causing minimal physical damage), and Edward’s five decades of a law-abiding life, the DA offered Edward a plea to three and a half years in state prison.

  He turned it down, insisting on his innocence.

  I fought his case for a year and a half, searching in vain for some reason that would explain the case or the crime. I found nothing. Time and time again I was drawn back to the scene of the crime --right near a welfare building across from Crotona Park --hoping that I’d find something, see something, make sense of the nonsensical.

  Edward’s case was pending in front of Moge --and he couldn’t figure it out either. “Look, Dave, it’s why we have trials,” he told me during one of our many conferences about the case. And after a few more months of confusion, I was inclined to agree.

  With nothing left to do, it was time to pick a jury.

  “When can you be ready?” Moge wanted to know.

  “Let’s do it next week,” I said.

  “Fine,” said Moge, and then, turning to Edward, “This is pretty much your last chance to take a plea, sir.”

  Edward, whose stoic reserve was almost unfathomable, looked up at Mogulescu and said, with utter calm: “Okay. What do I get?”

  I couldn’t have been more stunned. Edward was a dignified, quiet man who addressed me with incredible respect and calm reserve. He’d never said anything other than that he was innocent. Simple, direct questioning and thoughtful nodding marked our conversations as he processed whatever I told him. Edward was clearly smart --always reading serious books and chatting amiably with me about them in the client interview room in the jail. His guilt seemed so out of the question that I hadn’t even really engaged in any plea-bargaining.

  “Ahhhh, can I have a few minutes with my client?” I asked the judge, not sure I’d heard right.

  “Of course,” said Moge as they led Edward back upstairs to the cells.

  Upstairs it was clear to me I’d heard wrong.

  “I want to go to trial,” Edward told me quietly and firmly as we sat down together in the client interview room. “I know you believe in me,” he said, “and I trust you.”

  “You got it,” I told him. “We’ll start picking a jury next week.”

  “Okay!” he said, smiling. “I’ll see you then.”

  I couldn’t sleep that night. All my public defender instincts were telling me that something was dreadfully wrong --an innocent guy that calm doesn’t just panic and offer to take whatever the judge is going to give him. Something was wrong, but I couldn’t figure out what.

  It was exactly the kind of situation that Robin is good for.

  “Rob, I want you to come talk to Edward with me,” I said the next morning. “I need your read on this.”

  “Sure, babe,” she said. “Let’s go.”

  As we threaded our way through the lower mezzanine of criminal court, I filled Robin in on what had happened the day before. “It was like, just for a second there, he wanted to fold --it was like this little glimmer of total capitulation, but by the time we got upstairs, he was back to trial only. I just don’t get it.”

  “Weird,” Robin said as we walked into the interview room. “Let me talk to him --alone, please.”

  I introduced them and left.

  “He needs to take a plea, sweetie,” Robin said when she came to get me ten minutes later. “He’s guilty, and he wants to get out of the case.”

  I couldn’t have been more stunned.

  “It took me about thirty seconds to figure it out,” she said. “He was old and depressed; he’d been cut off from disability and was afraid he’d be evicted. I don’t know whether he was thinking about robbing the guy or what, but when he pulled out the gun, he was so nervous and shaking the thing just went off. He was so freaked out, he just sat down in the street and waited for the cops to come. What I couldn’t figure out was why he’d been hanging in there so long, and then I realized it had to be you. As soon as I said to him that I’d known you a long time and that you’d love him no matter what he did, he just started crying. He was too embarrassed by what he’d done --he felt like you’d been fighting so hard you’d be disillusioned if he turned around and told you. He kind of thinks his life is over anyway, and he didn’t want to go die in prison having let you down too.”

  I was speechless. We were two days from a trial. I had been so convinced of his innocence that I hadn’t tried to work out a plea deal for months. And now it might be too late --and all because I liked Edward so much that I utterly failed to understand the potential pathology of what was going on between us; it was the dark side of my self-important crusading and toughguy posturing. Having him believe in me that much had fulfilled something I’d set out to be as a public defender, but it had also had disastrous consequences for the very person I was hoping to help, shelter, and protect.

  With no plea bargain in the offing and Edward newly determined to get out of the case, he was forced to plead guilty to the entire indictment. After a sentencing hearing, Moge gave him eight and a half years, five more than I could have gotten him at the beginning --the price of my own vanity.

  I learned a painful lesson from Edward about trying to hear clients clearly without the distortive clamor of my own ego. Unlike TV shows in which criminal defendants are constantly looking to get over by using a difficult childhood as an excuse for barbaric behavior, most clients just won’t talk about their lives much. The reality is that clients don’t really want you to know that they were in sixteen group homes in seven years, or left in a freezer to die at age two, or that they were hiding in a closet when their older brother got murdered. How, they wonder, could such information ever help? Why would anyone care --especially since no one seems to have cared before? Sadly, in almost every case, they’re right --in the criminal justice system, almost no one really does.

  - - - -

  I try to buzz Robin through the intercom, but she’s on the phone. I wander back around the corner, and gesturing at my wrist (I don’t wear a watch; there are enough clocks within view at court that I am always acutely aware of how late I’m running), I indicate that I need to head back to court soon. Catching my eye, Robin nods and flashes me five fingers.

  Back to my office: the phone is ringing again as I walk in. Max is calling from a jail in Manhattan on a TDD --a telecommunications device for the deaf. He types his part of the conversation, and the phone operator reads it to me.

  “Please, please, you are the only hope,” the operator reads with no affect whatsoever.

  Though born in the Dominican Republic, Deaf Max has lived in the United States nearly his entire life. Just over a year ago, Max pled guilty in Manhattan to a misdemeanor assault. He was sentenced to a year in jail. The problem is that Max’s lawyer didn’t realize that while the assault conviction is classified as a misdemeanor in New York, because the sentence was a year or more, federal authorities considered it an aggravated felony requiring deportation. Perversely, even though Max has already completed his sentence, the DA won’t agree to retrospectively resentence him to 364 days --even though doing so would avoid having him deported to a country he’s never known. It would be a simple change in the paperwork, with no practical effect other than to give him a chance to stay here with his family and young son. In the DA’s mind, though, “a deal is a deal.” The fact that Max’s lawyer screwed up seems of no consequence, and unless I figure something out soon, Max will be deported.

  “I’ll try, Max, I’ll try.”

  I can hear the operator’s fingers typing my reassurance.

 
; “Thanks,” she reads blankly, and then, in the same monotone: “The caller has disconnected.”

  I look through my new messages. One is from a Supreme Court judge. He’s called to ask if I’ll represent a defendant in a domestic rape case. “I didn’t rape her, I just finger-fucked her” is the statement and presumably the very bad defense.

  Jason sticks his head into my office.

  “Got a second?” he asks as he perches his avian frame on the arm of my black faux-leather couch. Today he’s in a memorable getup --a thick, elegant shirt with thin blue and gold stripes that make the material warm and luminous. I’m frightened to think that it also has French cuffs --but a quick glance confirms that it does. To go with the shirt, he is sporting a peachcolored tie that, if I was a bit more fashion forward, I would appreciate more than I do.