by David Feige
The cop handcuffed Omar, roughly turning him around to yell in his face.
“Tell me now, you little fuck, where’s the stash?”
The other cops slowed down, their search having turned up nothing.
“I told you, sir,” Omar said, trying to fight back panic, “I don’t got nothing. I didn’t do nothing.”
“Put him in the van,” the bigger cop said, nodding toward the marked police van idling nearby. There were four other people in it already.
By the time Omar got to the precinct, the reality had set in. Packed into a dirty cell with a dozen other arrestees, Omar was focused on just getting through the process. He asked to call his wife, but, not surprisingly, as the hours ticked by no one managed to let him out of the cell for long enough to call. Though it was now well after midnight, Omar, wary of the other men in the cell, tried not to sleep. He was moved four times between midnight and 5:00 a.m. Once, after they took his fingerprints and his rap sheet came back, one of the officers made a special trip across the room to the cell where Omar sat.
“You got no idea what you in for, motherfucker,” the cop said. “You’re fucked.”
- - - -
“People, what’ve you got in this case?”
That’s all the judge at arraignments wants to know --the big question in every drug case: “Is there buy money [cash] or additional drugs [stash] recovered?”
Omar couldn’t have been more surprised by the answer. “Both, Judge,” said the ADA, shuffling through the file. Omar almost collapsed.
“What?” he said urgently, tugging on my shoulder. “Stop it,” I hissed.
“But I didn’t . . . I didn’t,” he whispered, eyes wide. “Quiet!” I snapped, making a bail application that focused on his ties to the community and the fact that he’d been working and basically out of trouble for nearly a decade. “Please release him,” I asked the judge, “he’ll come back to court.”
“I’m setting bail,” the judge announced as Omar’s shoulders slumped.
Fortunately, unlike many clients, Omar was able to find several thousand dollars and actually post bail. In one sense this was great --it allowed him to fight the case from the outside, coming into the office for meetings and strategy sessions. But on the other hand, since Omar was facing a mandatory prison sentence upon conviction, any plea he took would mean that he’d have to “step in” --that is, go from being free to being an inmate --something that pushes many defendants to risk a trial rather than surrender.
As the case wore on and Omar, insisting on his innocence, rejected even pleas I thought reasonable, I pushed him harder and harder for an explanation of where the buy money and drugs came from.
“Planted,” he insisted implausibly. “I was framed.”
“You never had them?”
“They’re making the whole thing up” is not a defense I was looking forward to asserting in front of a jury, especially in a Stash and Cash case.
A No Stash, No Cash case is a weak one. It means that there is absolutely no forensic or physical evidence linking the defendant to the crime. The entire case will thus rest on a bunch of cops coming into court and insisting that the guy they bought from is the same guy they arrested despite the fact that he didn’t have matching drugs or prerecorded buy money. The defense will argue that the cops made a mistake --they mistook Mr. Nice Client for the JD they were looking for. Because they can’t prove the identification, they don’t deserve a conviction. These trials are essentially cop-credibility cases, and they stand and fall on two factors: how convincing and personable the undercover officer is and how trusting the jury is of cops.
In the Bronx, No Stash, No Cash cases are almost always winners for the defense. Bronx juries have all seen drug sweeps, and most male jurors have seen or heard of cases in which the police throw a bunch of people up against a wall, search them all, and decide later who to arrest. Bronx residents tend to be skeptical of cops and willing to entertain the possibility that the officer might have made a mistake.
Try that same No Stash, No Cash case before a jury full of white folks from downtown, and the chances of getting an acquittal plummet precipitously.
Things get harder when there is stash or cash, or worse, both. In almost every one of these cases, the defense is either what I call “big mistake” or “buyer not seller.”
Being a drug buyer is a criminal offense, since by definition the client, at some point, was guilty of simple possession. The trial strategy in buyer-not-seller is to go for an acquittal on the sale counts and accept a conviction on a misdemeanor possession count. This is because seventh-degree possession (the most minor of all six drug offense levels) is a misdemeanor rather than a felony, punishable only by up to a year in jail. Because most clients will have already been in jail for more than a year by the time they actually get to trial, a possession verdict is considered a win. Moreover, the buyer-not-seller defense dovetails nicely with the mistaken ID defense used in the No Stash, No Cash cases --the officer may remember the guy he arrested, but only because he was right behind him in line to buy. After a few years, almost every public defender has tried some variant of the buyer-not-seller defense.
On the other hand, Cash, No Stash cases have to explain the presence of the money. These cases go two ways --one of which requires admitting contact with the seller. In the first, the defendant bought right after a police officer and got the prerecorded buy money as change (drug dealers regularly seek to cycle their cash for exactly this reason). The absence of drugs is explained by having either ditched them or (in crack cases) already smoked them.
The second variant of this Cash, No Stash configuration completely denies contact with the actual seller --the “milk and Pampers” defense.
The milk-and-Pampers defense hinges on the deal going down near a retail establishment --usually a bodega. Most people in the Bronx understand (and police will often admit) that drug dealers often churn their cash via local businesses. Given that fact, it’s not so far-fetched to believe that the client got the money as change when he innocently wandered into the bodega to buy milk or Pampers for his child’s mother right after the drug dealer was inside. The real seller, it turns out, had just churned the cash by buying something else in the store.
But of all the predictable defenses and all the possible configurations, Omar had the worst. He had a Stash and Cash case, and he had a defense I could barely understand.
They’re making the whole thing up.
This was Omar’s mantra, and for seven months I’d been utterly unsuccessful in my attempts to move beyond it. Taken alone, it was an impossible defense, yet Omar was resolutely sticking to it despite my pounding away at him. And so, sitting in my little office behind my battered desk overflowing with papers and case files and arrest photos, I fixed Omar with an exhausted look and delivered my ultimatum.
“Omar,” I said, “I’ve been your lawyer for seven months now, and I feel like our relationship is deteriorating. The case has been transferred to Judge Rivera, who is going to be the one trying it --and not so far in the future, either.” Omar held my gaze --he knew exactly what I was getting at: Rivera could be trouble.
From what I could tell, Reinaldo Rivera had lifted his judicial vocabulary from Star Trek. He spoke in a gravelly voice, shaking his head as if the routine pronouncements he made from the bench had the gravitas of Delphic prediction. “Make it so” was one of his favorite phrases, as was “I declare it.” He favored verbal trilogies, and where most normal judges would just ask a client, “Do you give up your right to a trial?” the Rivera version would be “Now, sir, I will now ask, and I query you: do you renounce, give up, and forfeit your right to a trial?” It was hard not to laugh sometimes, but Rivera could be prickly, and clients had to be carefully prepared to appear in front of him.
Rivera was all about appearances --bring in a client in a good suit, you got a break; forget to tell your kid with the drug case to dress up, or worse, have him defy you and show up in baggy sweat
s, an NBA jersey, and a hoodie, and you’d be lucky if Rivera didn’t find a reason to put your kid in jail that very day. There were dozens of occasions on which I intercepted clients outside the courtroom, calling their parents or sending them home to change lest Rivera decide based on the clothing alone that the kid was guilty or menacing.
Well beyond fashion, stage management was the most important factor when trying a case in front of Rivera. This was especially true in his plea allocutions --the series of questions a defendant has to answer in order to enter a guilty plea. Rivera’s allocutions were famous, not only because they were insanely wordy, but because he deliberately made them difficult. In every plea bargain there is a delicate moment in which a client admits guilt to certain specified offenses. It’s the scariest moment of the plea process --the place where clients balk or judges renege --and most judges try to soft-pedal it, asking the prosecutor to read the specific legal offenses and asking the client whether he or she admits the offense. Generally a simple yes will do, and getting a yes is relatively easy.
Rivera, though, had his own notions of what a plea should sound like. And so, after the long-winded waivers of every imaginable constitutional right, when he got to the most important part of the plea, Rivera would lean back, a taunting smile on his face, and looking down at the client from the bench, he’d say: “Now, sir, tell me in your own words, WHAT did you do to make yourself guilty of this crime and WHY?”
This was an all but impossible curveball for an unprepared client. Most could get the first part. “Ah, I robbed a kid?” they’d say quizzically, or “Ummm, I sold drugs to a undercover?” But even when they got the what part of the question, the why completely flummoxed them. And Rivera rarely let a plea proceed without his beloved explanation.
What made why so difficult is that my clients rarely had any idea why they did things. With some therapy perhaps they’d conclude that they were drunk, or pissed off after a lifetime of abuse, or desperate for some cash, or in love with the sexiness of the gangster lifestyle, but none of these explanations trips off their tongues when confronted by Rivera’s expansive curiosity. As a consequence, their answers are often amusing stabs at elusive self-knowledge.
“I was hungry?” one client asked, trying to explain a theft.
“He looked rich?” mused a robber.
“I thought I could get away with it?” muttered another.
“I didn’t know he was a cop,” said a drug peddler.
Since Rivera never seemed to reject a plea for an insufficiently insightful answer, the transcripts of his cases were monuments to the stupidity of his insistent need for explanation.
With Rivera being the trial judge and Omar insisting on a trial, it was critical that I get more from Omar than “they’re making the whole thing up.”
“So, Omar,” I continued, “I’m feeling like you don’t trust me, and I’m thinking that maybe you’d be better off with a different lawyer. I want to defend you. I believe in you, and I believe what you’re telling me. But I cannot go to trial in a drug case where there is buy money and stash and just claim that there wasn’t. This has to be specific to you, not just some general ‘cops are assholes’ bullshit. I need to understand --why would any cop risk his pension just to frame your sorry ass?”
Omar looked at me closely, his handsome face framed by a silver goatee: he had one eye half closed, and he was squinting as if trying to size me up. Seconds ticked by in silence, and then, pursing his lips slightly, he looked across the desk at me and uttered a single word: “Negro.”
“Huh?”
“They wanted Negro.”
“Who the fuck is that?”
“Negro --guy I used to sell for --moved like half a kilo a week in Sunset Park. Just got out again.”
“Who wanted him?”
“Narcs. They come to me over and over: ‘We know you selling for him again.’ No, I tell them, I’m working now, I got nothing to do with him no more. ‘Yeah,’ they say, ‘we know you selling.’ No, I tell them, but they want me to snitch for them, to work for him again, but I refused so they planting all this shit on me ’cause I wouldn’t go back into the business. They know I’m innocent.”
“Omar, you’re telling me they’re framing you because you refused to cooperate with them?”
“That’s what I’m telling you, Mr. Feige.”
“Why did they want you?”
“I used to be a snitch.”
“What?”
“I used to be a snitch for them. I had a CI number and everything, and I was making cases for them and everything --big cases, and then one time someone come to my house and starts shooting through the door, so I think maybe someone found out. So I call my handler, and I say, you gotta get me outta here, move me, like into witness protection, ’cause it seem like someone know I’m snitching. And he says sure he gonna help, but then no one does shit, and I’m scared for my family and everything and I think they gonna send someone to come kill us, so I jet --I go to Texas for like four years, and that was it.”
“You went to Texas?” I’m incredulous. In seven months I’ve never heard any of this.
“Right. So then, when I finally come back a few years ago and get a job and everything, I’m out of the game totally, but then Negro, who they busted, gets out of jail --he been down for like ten years or so --and he go back into business, and first they think I’m working for him, but then they realize I’m straight, so then they trying to get me to work for him, and I tell them they fucked me once and I ain’t dealing with them no more. So then this old DT rolls up on me one day --a guy from back in the day, and he still on Brooklyn South.”
“Brooklyn South Narcotics Unit?” I’m scribbling notes now.
“Yeah. He still working out of there, and he roll up on me and tell me to get in the car, and he take me for a ride and be threatening me --saying everybody know I’m a snitch, and if I don’t go set up Negro, he gonna put the word on the street that I’m snitching again, and then I’m dead. So I tell him everybody know I’m outta the game, nobody gonna believe I’m snitching ’cause everybody know I gone straight.”
“Okay.”
“So he driving me around in the undercover car --all around the neighborhood --and he got me in the front seat where the windows is clear, and so everyone can see that I’m talking to the cops, and then he tell me to call him when I decide to do the right thing, and I tell him I ain’t gonna call him, ’cause I’m done with that, and then he look at me and says: ‘Omar, I know who you are; I know where you live. You know we got a history. Don’t fuck with me.’ And I get out of the car, and I’m shaking and nervous and shit, and I just go home and tell my wife what’s up.
“So then, like a week later, I see the same cop riding around, and he’s axing me am I gonna roll with him, and I say, no, I’m clean now, you guys already fucked me once and I ain’t messing with you no more. So he just says, ‘Watch your ass, Omar.’ And rolls off. And then like four days later, I’m just chilling in the park, and they roll up on me and this other dude and charge me with selling, and I ain’t even sold.”
This was interesting.
“Omar,” I said, “can we prove that you were a snitch before?”
“Of course. I got my snitch papers.”
“Official snitch papers with your agreement and your confidential informant number and everything?”
“Yeah, but we can’t use it.”
“Of course we can. That’s called a defense.”
“Mr. Feige,” Omar says, fixing me with a level stare, “my codefendant, he’s still in the game, and if he finds out I was a snitch, if he sees my papers, it’s over --they’ll kill my family. We can’t say anything about it or my kids are dead.”
“I need those papers, Omar, and as far as your codefendant . . . well, that’s a risk we’re going to have to take.”
Omar just stared at me, shaking his head.
“I’ll blow trial before I give that shit up,” he said. And he meant it. Finally I
had a defense --one I couldn’t use.
It was two weeks later that I appeared again in front of Judge (or as he preferred to be addressed, “Mr. Justice”) Rivera.
“I need to make an ex parte motion,” I told his law secretary, Patricia DiMango. Pat DiMango was an ambitious woman who wanted very much to become a judge (she later succeeded). Thin, with a shock of wildly streaked, vaguely blond hair, DiMango was a parody of a wisecracking Brooklyn gal --tough and smart but washed out somehow after too much time feigning attentiveness to Rivera’s buffoonery.
“For what?” She didn’t seem particularly receptive.
Ex parte motions --those argued directly to the judge without the presence of the opposing side --are extremely rare and only allowed under extreme circumstances.
“I’ll explain it to the judge --in chambers and on a sealed record.”
