by David Feige
“Can you just send me the order of protection?” he’d asked his lawyer. His wife had already called the DA and the lawyer explaining that she didn’t want the order anyway.
“Actually, I can’t,” the lawyer had told him. “You’ll have to wait.”
So Dreads waited.
And he waited, and after waiting for forty minutes, he couldn’t wait any longer --it was 3:10, and he had to pick up the kids at 3:30.
“I can’t wait anymore, mon --I gotta be gettin’ the kids,” Dreads explained to the court officer. “I can come back tomorrow and pick it up.” The court officer just shrugged.
As any prosecutor will happily tell you, orders of protection are enforceable even when someone hasn’t signed them --so long as they are duly served so that the recipient has notice of the order. Technically, since Dreads was notified during the court proceeding that he was still subject to an order of protection, his signature was just a formality.
But Judge Salvatore Modica thought that Dreads’s leaving was disrespectful. Dreads’s lawyer had long since decamped for another courtroom when they finally called his name. The court officer Dreads had spoken with had never mentioned the situation to Modica, so Modica, on his own, had Dreads’s case recalled --without the lawyer or the client or anyone except the ADA present --and because Dreads didn’t sign the order of protection, Modica issued a bench warrant. “Set bail,” he scribbled on the court papers --which is exactly what Judy Lieb, the duty day judge, did on the day that Dreads showed up again for court.
Having set bail as instructed, Judge Lieb then sent the case back to Judge Modica, who increased the bail from the $500 that Judge Lieb set to $2,500. Then he sent the case back to AP-10.
By the time I see Dreads come into AP-10, he’s been tossed into jail, had his bail raised, and is completely freaked out. “Please,” he begs his lawyer, “you gotta call someone --I got to pick up dem kids again. I’m tillin’ you, my girl been down here to drop dem charges --been down to tem office tree times. She sign dere papers! Please, call her! She’ll tell you, mon.”
“I know,” says Dreads’s lawyer --as it turns out, Dreads’s girl has called him several times too, conveying the same message.
Kiesel is drumming away, the ADAs are shuffling their files, and Dreds’s lawyer is whispering to one of the ADAs in a plaintive tone that’s barely audible when I make out one of the few magic words in AP-10: “Andy.”
Andy Liu is one of the few really decent ADAs in the DV unit. Born in Michigan of Chinese immigrants, Andy was raised in Santa Barbara and got a philosophy degree from UCLA before coming east for law school. If you are lucky enough to get him on the phone or corner him in court, Andy, unlike most of the rest, will listen carefully and respond reasonably. He has a stellar reputation with the defense bar and (perhaps surprisingly) within his own office, which has promoted him steadily into the supervisory ranks. Andy is unfailingly personable and so principled that even when he refuses to do what I think of as the right thing --either because it’s beyond his jurisdiction or because we have a disagreement about what the right thing is --he’s almost impossible to resent. What sets him apart is that he’s never punitive. So far as I can tell, Andy has never kept someone in jail on an untenable case just because he can --and that alone, in the world of ADAs, is enough to make him almost saintly.
“Can I have a second to make a phone call?” the ADA asks Kiesel.
“Sure,” says Kiesel, standing up and striding off the bench.
“Court will take a five-minute recess!” the court officer declares as Kiesel walks stiff-legged toward her chambers. As soon as she gets up, Dreads is marched away. I glance back at Hector again and shrug. Nothing to do but ride this one out.
Five minutes later, Kiesel returns, Dreads is brought back out before the court, and the ADA asks that the case be dismissed. Kiesel seems momentarily perturbed, but there is nothing she can do. The court officers remove the handcuffs, Dreads stretches his shoulders, and after a day of useless incarceration, he walks out of the courtroom.
If Andy hadn’t picked up the phone, Dreads would have stayed in jail and his kids would have been left stranded in front of their school. If Dreads hadn’t been in front of Judge Modica, there never would have been a bench warrant issued. And if Ron, the innocent kid Ululy tried so hard to save, had gone to trial in front of almost any other judge, his life wouldn’t have been ruined.
The capriciousness of the system is often overwhelming.
It’s not just the prosecutor and the judge, of course. The defense lawyer makes some difference. Certainly, a client unlucky enough to get a lawyer who just churns cases by taking pleas is going to have a hard time finding justice. But even with a good lawyer, a client who draws a nightmare prosecutor has basically been handed a one-way ticket to jail or prison. This is especially true when litigating against an awful prosecutor who has an ally like Kiesel on the bench. Then the frustration and powerlessness can become almost too much to bear. It’s those times that we do everything right on behalf of a deserving client and still wind up getting crushed that can drive defense lawyers completely over the edge. That’s certainly what happened to a lawyer I once knew.
Standing in front of a gallery of waiting clients and enervated witnesses, she did what I’ve wanted to do many, many times after a horrible, unconscionable ruling: she looked up at the judge and reportedly said, plain and simple, “Fuck you, you nasty bitch.” It wasn’t under her breath, and it wasn’t the whisper that a lawyer can often get away with. It was loud and proud and impossible to ignore.
“Fuck you, you nasty bitch.”
I don’t know whether the judge tried to hold her in contempt right then or whether the courtroom was silent for a second as, perhaps realizing what she’d just done, or perhaps having second thoughts about having done it, she turned away from the judge, away from her client, and away from the defense table and sprinted toward the exit. What I did hear, though, is that she ran. And when the shocked court officers grabbed her, trying to figure out what to do, she struggled, and that --far more than disrupting the court or even calling the judge a bitch --was (at least in the bizarre world of the Bronx) unforgivable. She was arrested and charged with criminal contempt and resisting arrest. Within hours, news of the incident had spread like wildfire throughout the courthouse.
I’ve often wondered what I’ll do when (not if) the time comes that I reach that moment --that day when I’ve finally been pushed too far. I know how it feels to be there. It’s what I felt the morning I turned my back on Blog --the moment when I was willing to feel the steel, willing to surrender my law license, willing to face any consequence and every imaginable sanction rather than one more second of the horror of criminal practice. I’d like to think my fuck you would be only the tiniest taste of the obscenity-laden vitriol I’d empty over the judge, the prosecutors, and the courtroom. I’d like to think that I’d begin a disquisition for the ages --a raging soliloquy, part Martin Luther King, part Mamet, about a foul, disrespectful, unfair system. In my imagination, I’d like to think that while being marched out of the courtroom, hands cuffed behind my back, I’d be walking proudly, still emphasizing the judge’s moronic heartlessness, astonishing callousness, pathetic jurisprudential shortcomings, amoeba-like intelligence, and so on.
I never faulted this woman for saying what she said. Like most defense lawyers, I looked at her and thought, there but for the grace of God go I. What I fault her for is running.
The case against her never even made it to court. Instead she was reassigned to a different borough, a traditional solution for lawyers who have, even briefly, gone a little nuts. Still, hardly a week goes by that I don’t sit in AP-10 and wonder about her story. I wonder whether doing what she did made her feel better, whether even a briefly tarnished reputation justified the outburst, whether in the dark night of her soul she holds up that crystalline moment in time and thinks: There --the one time I finally said what I believed.
Dreads
has hardly made it to the door when the bridge officer looks my way. “Mr. Feige,” she murmurs, her way of letting me know that Hector’s case is up next.
Hector’s case is done with in thirty seconds. “Are the people ready for trial?” Kiesel asks.
“No, Judge,” some random assistant district attorney says. “No complaining witness contact.”
“Fine,” says the judge. “What date, please?”
I provide a date another six weeks in the future --a day when I’m already scheduled to be in the part.
“Fine,” Kiesel says again, adjourning the case.
“See you then,” I mutter to the prosecutor as I scribble the new date on a little blue slip of paper so that Hector won’t forget. I’m turning toward the door when I hear Kiesel: “Are we ready on that other case?” she asks one of the court officers.
“Yes, Judge, he’s in the back now,” the burly officer says.
Glancing back, I can see that Kiesel has that sour look again. “Let’s bring him out,” she says.
“Okay, Judge,” says the officer, and then, turning to the audience, he declares, “Everyone take seats please.” Turning to me, he clarifies, “That means you, Counselor.”
“I’m just leaving,” I tell him, heading for the back of the courtroom, where another officer has blocked the door. Realizing I won’t be leaving just yet, I sit down on a bench toward the back to watch what happens next.
A little man is brought in wearing handcuffs and leg irons. He is surrounded by five buff court officers. They are wearing blue riot helmets, with plastic face guards, thick leather gloves, vests, and jackets marked “New York Court Officer.”
“What the hell?” I ask, turning to the officer in the back whom I know vaguely.
“Tried to bite a CO,” he tells me, sternly using a shorthand that could suggest either a court officer or corrections officer.
The man is small, and he winces every time an officer moves his arm. It’s clear he has been beaten. His lawyer speaks briefly, and the case is adjourned. The court officers --one in front, three at the side, and one at the rear --march him quickly back into corrections.
Finally free to leave, I head around the corner to use the judge’s elevator. Behind a nearby steel door, the little man is being beaten. I distinctly hear the thudding noise his body makes as it is kicked. His cries are horrible and plaintive. The door rumbles with the impact. A kid in a black hoodie sitting on the bench just outside the courtroom catches my eye as I pass and shakes his head knowingly. “Take my advice, brother,” he says somberly, “stay single, pay for pussy.”
With all the pounding going on, I’m glad when the elevator finally arrives. I step in with an ADA named Anna Almarante right behind me.
Even in a massive court system like New York, prosecutors and public defenders inevitably get to know one another pretty well. Eventually everyone will face the same adversaries, so reputation becomes critically important. Under these conditions, it’s good to know how to charm the opposition. Eric, a young lawyer frustrated with not managing to “connect” with a few of the assistant district attorneys, once pioneered “the elbow touch” to see whether physical intimacy might get his clients better offers.
It did.
I don’t much go for physical intimacy with prosecutors. It’s against my religion to sleep with them. But the fact that I despise them and what they stand for doesn’t mean I’m not occasionally tempted. Anna Almarante is one of the few that tempts me. Big, swaggering, and busty, Anna has a way of standing in the courtroom that always does me in --her weight on one leg, opposite hip jutted out defiantly, her head sliding around like a bobble-head doll. No one else makes quite the same production out of a simple court appearance. “Ya Honor!” she declares, one hand up in the air, palm out, like a diva stopping traffic. “The People’s offer is thirty days’ jail! He beat huh!” Although there might be fifty identical cases on the calendar that day, Anna always acts as if the facts of her case are somehow terrifyingly new or unusually alarming. Her antics make even fellow prosecutors smile with amusement.
“Hi, Feige,” she says, pressing the button for the main floor.
She has an unusually pouty look today, the thick waves of her black hair obscuring part of her profile.
“What’s the matter, Anna?” I ask, shifting my weight slightly and leaning toward her just a bit.
“I don’t know . . . ,” she trails off. “I was just thinking.”
“What about, babe?” I ask. I can’t take my eyes off of her.
“I was thinking about hell,” she says.
The elevator doors open, and a court officer gets out. It is just the two of us now.
“Huh? Why were you thinking about hell?” I ask her.
She isn’t smiling. She is serious. I find the whole idea utterly titillating.
“I think about hell all the time,” she tells me earnestly. “Don’t you?”
“Ah, no. I don’t ever really think about hell at all, Anna,” I say.
“You don’t?” This is veering quickly from the flirtatious to the bizarre.
“Anna,” I say, smiling, “I’m a Jew.”
There is a sharp intake of breath.
“You’re a Jew?” she asks, incredulous.
“Yeah,” I say, a bit taken aback, “couldn’t you tell? Big nose . . . loud . . . Feige. I’m very much a Jew, Anna.”
She is still looking perplexed. There is a momentary silence.
“You’re a Jew?” she repeats. “So does that mean, like, that you don’t take Jesus Christ as your personal savior?” she asks, seeming more genuine in her curiosity than I think possible.
“Yeah, Anna, that’s the whole Jew thing right there: Jesus, definitely not my personal savior.”
Another gasp.
Her coal-black eyes are locked with mine; her breasts are inches from my chest. I can smell her hair as she shakes her head and bites her bottom lip in consternation. The elevator lurches to a stop on the main floor. The doors slide open.
“You’re going to hell,” she says. The People’s offer: eternity.
That, I think, is the kind of sentence Kiesel might like.
T w e l v e
3:12 P.M.
As I step away from Anna and the elevator, my brain still reeling from the potent combination of her voluptuousness and condemnation, I realize that I have been so preoccupied with Reginald, Clarence, and Cassandra that I have given exactly no thought to Jaron all day.
Jaron is charged with stabbing his cousin. The prosecutors believe that they have an airtight case, but what they don’t know is that tucked in my thin little case file is a packet of papers that makes it pretty clear that Jaron may not be guilty. And while “pretty clear” and “may not” may prove insufficient to get a dismissal, they could, depending on the judge, be enough to get him out of jail today.
When DAs go to court in New York City, more than thirty thousand cops, with their dogs, guns, surveillance technology, and remote-controlled robots, back them up. When ADAs need something from the streets, they can call upon that well-paid army of armed men to knock on doors, serve their subpoenas, and track down their witnesses. Public defenders, on the other hand, are lucky if they have a college intern or an overworked recent university graduate to help. Yet despite this disparity in resources, I’ve won more cases over the years through good investigation than through motions and trials combined.
Investigators are the eyes and ears of overworked defense lawyers. Generally speaking, they’re the ones who find the witnesses, who persuade them to talk, and who know, before anyone else, whether a case is rock solid or utterly flimsy. Good investigators can find anyone and talk their way into any place, and really good investigators unfailingly know when to get a written statement, locking an otherwise hostile witness into a particular version of events, and when to lie low, build trust, and come back another day. A good investigation, more than anything else in a criminal case, can be the difference between prison and dismis
sal.
One of the benefits of being the trial chief is that I have some latitude in choosing who works on my cases, and though I’ve had some very good investigators over the years, Ben Wolf, whom I rely on more than anyone else, has been by far the best. Tall and awkward, with a goofy smile and a stuttering, lugubrious Missouri manner, Ben was the kind of white kid that I hesitated to turn loose in the South Bronx. When he showed up for his first day at the Bronx Defenders, wide-eyed and fresh from college (in a hand-me-down suit of his father’s), he’d spent a total of three days in the Bronx and just a few weeks in New York City.
