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

by David Feige

  “C’mon in,” I tell him.

  Jason hasn’t been with the office that long. Then again, it doesn’t take long to be exposed to the absurdities of criminal court. Judge Raymond Bruce, who once furiously declared, “When someone gives you a horse as a present, you don’t look at its teeth!” (his way of chastising Jason and one of his clients for not taking a plea), presided over one of Jason’s first trials --a blind man accused of assault. The prosecution’s theory: “he’s not blind.” Indeed, that’s what Assistant District Attorney Dan Kraft claimed throughout the trial as the man’s seeing-eye dog lay lazily by the defense table. “He’s faking,” Kraft insisted as the defense introduced medical records indicating the client had been blind since birth. “I will prove that this man is a liar and can see!” Kraft swore, hinting that he had some secret evidence with which he’d prove this increasingly bizarre contention. An official certificate of legal blindness issued by New York State didn’t dissuade him, nor did the testimony of the client’s girlfriend (who was also legally blind).

  And so, when Kraft’s moment finally came, when he rose to cross-examine the client (who had been guided to the witness chair by the seeing-eye dog), everyone was rather interested to see what this secret proof might actually be.

  “You say you’re blind, sir!” Kraft said, sarcasm dripping from his voice.

  “Yes, I am blind,” said the blind man calmly.

  “But you check out girls on the street, don’t you?”

  “Excuse me?”

  “Sir, I’mmmmm told that you check women out. Isn’t that a fact?”

  “Um, I can’t see anything --also, I have a girlfriend.”

  This line of questioning didn’t seem to be getting Kraft where he wanted to go, so he deftly changed tacks.

  “Well, you read, don’t you?”

  “Braille.”

  “Oh, nooooo sir, you read magazines! Normally printed magazines!”

  “Um, no.”

  “Well, what’s this then?” Kraft demanded, holding up a glossy magazine addressed to the client. This was his gotcha! moment.

  “I don’t know,” said the client. “I can’t see.” The seeing-eye dog let out a tiny, almost inaudible sigh and licked the court reporter’s leg. The court reporter burst out laughing. Kraft was deadly serious.

  “It’s a magazine addressed to YOU!” he nearly shouted.

  “Well, I get magazines,” Jason’s client said simply. “I have them read to me.”

  This apparently was something ADA Kraft had never considered. For nearly a year Kraft had insisted that the blind man could in fact see, and it seemed that, all of a sudden, he was the one left in the dark.

  Quickly ending his cross-examination, Kraft rose to deliver his summation: “He may be blind,” Kraft conceded, “but I still think he can see more than he’s letting on.”

  Jason won that one.

  Today being a normal day, Jason is probably carrying about eighty cases (though the load can occasionally reach one hundred). Partially because my cases tend to be the most serious in the office, and partially thanks to the privilege of rank, I have fewer --usually between forty-five and sixty. Of course, part of my job as the trial chief is helping the other lawyers figure out their cases, so when I’m not working on my own cases, or on the phone or in court, there is almost always someone in my office with a question, sometimes legal, sometimes tactical. Even walking in and out of the office, I’m regularly stopped with a “what is this case worth?” kind of question, a request for my sense of the numbers --representing years of someone’s life --answered while barely breaking stride.

  Sitting at the lunchroom table his first week, Jason had overheard another lawyer telling me she’d picked up a bad case --assault in the first degree.

  “What’s the weapon?” I asked.

  “Machete,” she said.

  “What’s the injury?”

  “Hand.”

  “How’s the hand?”

  “Off.”

  “All the way off?”

  “Yeah, straight through.”

  “That’s a bad fact.”

  “They surgically reattached it.”

  “Well,” I said, nodding, “that’s something. Guy gotta record?”

  “Nothin’.”

  “Both drunk?”

  “Looks like it --fight between two Salvadoran guys.”

  “Just one whack?”

  “Yeah, one swing, and then the hand’s on the ground from the wrist down.”

  “I’ll bet you can get two, maybe even less.”

  “They’re offering three and a half preindictment.”

  “Hold out --you’ll do better.”

  “Okay. Thanks, Feige.”

  Today, Jason has his own sentencing question.

  Over the years, New York, like almost every other state, has reformed and rereformed its criminal sentencing laws. The adjustments, announced during every election cycle or after any particularly horrific crime, are always bad for my clients. In the time I’ve been practicing, the minimum sentence for a first-time offender convicted of a class B violent felony like armed robbery has gone from an indeterminate sentence of two to six years, to an indeterminate sentence of three to six years, and finally to a determinate --that is, fixed --sentence of five years. Learning the sentencing rules --and learning them thoroughly --is one of the best ways to gain power in the system. Because change is so common and ignorance so widespread, actually knowing the correct answer to every sentencing question leads everyone else in the courtroom to trust and then rely on your assertions --a fact that can become quite useful when trying to work out a plea deal.

  Jason’s question had to do with merger: what happens when someone is sentenced to two different terms of incarceration, one for a misdemeanor and one for a felony? The answer hinges on how the New York City Department of Corrections calculates jail time and, oddly, whether the client is locked up in a jail at Rikers that inmates call the “six building” and DOC describes as a “sentence facility.”

  As I’m explaining this to Jason, Emma Ketteringham pokes her head in. Emma is the office über-WASP. Tall and slender, with long blond hair and sparkling blue eyes, she is one of the only lawyers we ever hired directly out of a fancy law firm. Bigfirm lawyers usually can’t handle the transition to state-level public defender work --they’re too used to focusing on just a few cases, too used to cozy offices and large paychecks, too used to the reverence with which others react to the invocation of the law firm name. Fancy résumés from Paul, Weiss; Shearman & Sterling; and Fried, Frank had come in many times over the years, and though the associates looking to make the switch were sometimes bright and always unusually confident, we’d never been convinced that any of them would last. The firm folks normally exhibited an intellectual attachment to the idea of the work, rather than a passionate commitment to the clients themselves. You can usually see it in their eyes during an interview --a vague fear of the comparatively shabby offices or the underresourced and overworked conditions.

  Emma, though, was different. In the six or seven years that I was involved in hiring public defenders, she did one of the best interviews I’ve ever seen. In a room full of grizzled public defenders firing skeptical, even derisive questions at her, Emma was astonishingly poised, tempered, and articulate as we took her to task for not doing more pro bono work, grilled her about her commitment to clients, and even suggested that she was a sellout for having worked at the firm at all. Through it all, she was utterly composed, her long, elegant fingers gesturing gently, her stylish but understated suit suggesting competence without asserting privilege. She left convinced we hated her. In fact we loved her. We figured that if she could take what we had just dished out she’d have no trouble at all dealing with angry clients and intemperate judges.

  I glance up at Emma. “I gotta grab some lunch --can we do this tonight or tomorrow?” I ask her.

  “Oh, sure,” she says, turning gently toward her cubicle, lighter on her
feet than physics should have dictated. “It’s no big deal.”

  Jason follows her out.

  “Thanks, Feige,” he says.

  Grabbing my keys from the desktop, just in case we’re driving, I head back around the corner to pick up Robin. Together, we trot through our library / lunchroom, toward the reception area.

  “Alvin’s on the phone,” Lorraine calls after me, with a smile that says she understands. Waving my hands like a football ref calling an incomplete pass, I shake my head.

  “Sorry, sweetie,” I hear her say as I push through the door. “He’s at lunch, but you can call him again later.”

  Aboard Robin’s well-worn Volvo, we head for the gas station, just a few blocks from a halal slaughterhouse advertising live animals and bearing a bright sign with the memorable slogan “We roast goats.” We park past the pumps and walk in --the cooler and food counter are on the left; wiper fluid, oil, and candy on the right.

  Unlike Jason and Emma, who always seem perfectly put together, I am a mess. My suit is already rumpled from the morning’s sprinting around, my tie is a bit askew, and my hair could use a trim. I have, as we sometimes joke, the appearance of impropriety.

  Unfortunately, in our world of quick decisions, appearances can often become reality --a sweet kid decked out in a bloodred do-rag can find himself in jail for looking like a menace, while a badass con man in a creaseless suit can strut out the front door. Though I initially resisted this idea (for years I sported a long mane of unkempt hair and wore the same pajamalike suit nearly every day), I have reluctantly come to accept it.

  “You know,” a client will sometimes say when I’m in a particularly nice suit or have just made a particularly strong argument, “you could be a private lawyer.” They always say this in a conspiratorial fashion, as if they want to share a really important secret just with me. At first I’d get offended when they’d say it, as if their limited ambitions for me were dismissive, but over the years I’ve come to see the remark as the compliment it is. Their lives are filled with angry caseworkers, suspicious child welfare agents, distrustful probation officers, and, occasionally, uncaring public defenders. When someone breaks that mold, whether it be at probation, welfare, or the criminal courthouse, the natural reaction is “You’re so good --why are you here helping me?”

  “But I like you,” I’ll say.

  “Yeah, but you could be making money, brother.”

  “But I like you --and I want to be your lawyer.”

  This almost always provokes a perplexed but somehow satisfied silence.

  - - - -

  It’s a few minutes before 2:00 when we get back from the gas station. In the Bronx, most courts don’t get going in the afternoon until 2:15 or 2:30, so I have some breathing room. Back in my office, I settle into my chair to bang out another lunchtime project: a quick letter to Fred, an old client who is incarcerated in Arizona.

  Generally, I’m not much for inmate correspondence. Given how much time inmates have on their hands and how little I’ve got, writing is usually a losing proposition for me. Anyone who is incarcerated has extraordinary needs that can be a full-time job to fulfill, and short of trying, the nicest thing I can do is send a thirty-dollar money order here and there to help with commissary.

  Before starting on the letter, I call the judge back. “Yes,” I say, “I’ll take the finger-fucking case.” Next, I buzz Emma on the intercom and answer her question, and in the succeeding ten minutes I manage four more “yes everything is fine with your case” calls before banging out a quick ten-line “hope you’re well” letter to Fred. It’s almost 2:20 as I wearily grab my suit jacket and head back to criminal court.

  Weaving my way out of the office, I dart through the alcove that passes as our library --mostly several long shelves of annotated New York State statutes, set off against titles like Practical Homicide Investigation, Criminal Interrogation and Confessions, and Forensic Evidence: Science and the Criminal Law. There’s hip-hop coming from one of the rooms where the Bronx Defenders runs programs for neighborhood kids, and over the din I can hear one of the participants taking another to task. “Yo, that argument is totally wrong --you need to work on your facts, B.”

  Just across the hall from the kids is the trial suit closet --the site of one of my most memorable breakdowns. Nearly everyone I’ve ever worked with has been reduced to tears by the job at some point or another. I’m no exception.

  I am not quite sure how I wound up in the trial suit closet. I remember storming out of Robin’s office. I remember heading for the door. I also remember thinking that no matter how pissed off I was, I couldn’t really leave my boss and friend alone in the South Bronx at 2:00 a.m.

  The closet was small, filled with musty suits, worn shoes that no longer fit, and boxes of blouses. Most of the clothes, all of which are donated by staff and friends, had been hanging there for months or years. They were “trial suits” --shirts and shoes waiting to dress up a poor person about to face trial.

  Climbing in, feeling the womblike comfort of the small space, I pulled my knees up to my chin, wrapped my arms around my shins, and put my head down to muffle the sobs. There has got to be a better way, I thought to myself over and over, rocking gently back and forth in the cramped alcove. “I can’t do this another day,” I muttered to my thighs, glancing up at a decade of donated suits, several of which bore witness to my own ever-expanding girth.

  - - - -

  It takes a strange mix of isolation and immersion for me to get over those moments when I actually want to hang it up. Part of me wants to climb into bed and never come out, and often, after a really rough few days, I’ll do that --just pull the covers over my head and vow to change my life. I’ll promise to never go back to those hellish courtrooms, never again risk as much, never again get kicked around by insulting, idiotic judges. But after a day or two, or sometimes just a night of heavy drinking, the faces and the voices of the clients I love start filtering back --Alvin’s endless neediness; Cassandra’s empty, expressionless face; Clarence’s constant cockamamy theories; and Gary’s never-ending bewilderment at being arrested yet again. Besides, every once and again, I do make a difference --sometimes by fighting harder, occasionally by thinking better, but usually just by showing up and being willing to care. Often, at least for my clients, that’s more than they expect and all it takes. Do they need me? They do. Do I need them? I suppose I do too.

  Of course, the trial suit closet isn’t meant to shelter shattered public defenders; it exists to clothe clients who can’t afford, or simply don’t have, decent court clothing. Left to their own devices, many of my clients will show up for trial in the same jailhouse do-rag they’ve been sporting for months. Many of them don’t have family to take care of them, and the few clothing items they own have been winnowed by jail regulations or frayed by constant wear. Even for those who have nice clothing, for some reason it doesn’t occur to many of them that looking good might make a difference. They seem to forget that a jury is about to inspect every inch of them, studying their every move for some hint of guilt or innocence. The closet addresses this information gap, making them just that little bit more presentable during the week in which their lives are on the line.

  When the closet is bare we generally reserve the clothes for trial situations, but when it’s full --as it has been for a while --it’s a free-for-all.

  Several months ago I got a call from Luther. I’ve represented Luther for years --ever since he was arrested for carrying a loaded handgun. He called, as he often does, without warning. “Hi, Dad,” he said, with his mischievous lilt, “I gotta come see you.”

  “I’m running out, Lu, I gotta get to court. What do you need?” “What time you back?” Luther asked.

  “Six,” I said, hanging up.

  When Luther actually showed up at 6:00, I knew something was up.

  Though articulate and extremely smart, Luther, like a lot of my clients, has a self-destructive streak. Making appointments is tough, and
staying in touch in between appointments almost unheard of. When absent, Luther is usually doing something pretty good --like going to school or looking for work --but whenever anything seems to go too smoothly, or expectations are raised even slightly, Luther will find a way to disappoint.

  At ten after six, sitting on a couch in my office, he let it fly: “I need a suit, Dad,” he said.

  A suit? Luther is usually dressed nicely, and he doesn’t have the ghetto obsession with shiny white sneakers that swallows most of my other clients’ minimal disposable income. But still . . . a suit? I was trying to imagine what he might need it for.

  “That’s great, Lu, but, uh, how come? You got a date or something?”