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

by David Feige

  “Sleep,” he explained to me, his huge, fleshy face alive with the import of the sentiment, “very important.” Sleep deprivation and a minor psychiatric history will drive a man to do strange things --in this case, to try repeatedly to light an oozing liquid he had poured under his noisy neighbor’s door. As luck would have it, antifreeze is not flammable.

  Because there was no real damage to the apartment, and because of a creative social worker at the Bronx Defenders who found an Albanian-speaking therapist, I managed to get Arben out of jail. That was the easy part, and all was well for a time. But just three weeks later he was in the office and very agitated. I asked how he was doing, and he began again to complain about the noise from the neighbors. This was a very bad sign, and as visions of actually flammable liquids and front-page headlines in the New York Post began to dance about in my head, I had a moment of insight.

  “Look, Arben,” I said, “I am sorry you can’t sleep, but haven’t you ever heard of earplugs?” He looked at me blankly. “Earplugs, Arben . . . little foam things that go inside your ears to block out the sound. They help you sleep.” This was met with utter incomprehension.

  I sat Arben down, then gave an intern five bucks and told him to run to the store. He was back in ten minutes, and then, like an AIDS counselor in an African refugee camp demonstrating the use of a condom, I carefully, theatrically unwrapped a set of earplugs and showed Arben how to use them.

  He put them in and slowly turned his head from side to side, his face a mask of wonder and delight.

  “Go home and try these,” I told him, “and report back to me.” Four years and no arson later, Arben is off probation, done with counseling, holding down a good job, and sleeping very, very soundly.

  - - - -

  As I head toward the back of the courtroom, I’m thinking about Long Hair’s deft save. Of course, even really good lawyers occasionally have carefully crafted pleas go awry. Often it’s because clients who are pleading guilty are inclined to minimize their participation when it finally comes time to publicly admit their wrongdoings. Some judges, when they want to see a more severe sentence, will even use this equivocation as an excuse for “bouncing” (refusing to accept) a plea. Yet even when a plea goes down smoothly, a case isn’t over until the sentence is imposed, and sometimes not even then.

  The more serious the case, the more dramatic the sentencing can be. This is especially true if the client and the victim or their families come face to face. Then the strange polar experiences of the criminal justice system create an almost electric intensity --like a capacitor about to discharge. It is in those moments of confrontation that the human toll of the criminal justice system is most apparent --furious words that fail to bring back dead loved ones; tears that fail to alleviate the harsh sentences that result.

  No one wins. No one ever does.

  I experienced this most vividly standing next to Roger as he was being sentenced for killing a man named Wale (pronounced like Wally) Faust.

  We’d been on the verge of trial, at that tricky and subtle point in pretrial negotiations when the defendant most acutely feels the weight of a possible conviction and the People most desperately fear a loss. In the bizarre bazaar of plea-bargaining, there is a price for every crime, a price that takes into account the nature of the case, the strength of the evidence, the record of the offender, and a hundred other little details that lawyers exploit to get the best deal they can for the party they’re representing. In this case, the evidence tying Roger to the crime was not as strong as the district attorney might have liked, and though it certainly didn’t excuse his murder, Wale had been a fairly successful (and rival) drug dealer who had engaged in some bad acts of his own --something that would come into play in an “I shot him because he was gonna shoot me” kind of case. It’s why I was holding the line. Plea-bargaining is about numbers --it always is. That the currency my client is paying in is time only serves to muddy an already opaque moral equation.

  For months the prosecutors had been insisting on a fifteen-year sentence, and for months I’d refused to consider anything more than ten. In the end, after a final round of posturing, I got eleven years. Of those eleven years, Roger would actually serve just over nine and a third, and since it took me about two years to work out the deal (during which he’d been in jail) it really meant that he had a little more than seven years left to serve. It was a good deal.

  The sentencing took place on a lazy, overcast afternoon in one of the cavernous courtrooms of the Bronx Supreme Court. Roger, a high-security inmate, was led into the courtroom, shuffling the way that people do when they’re restrained by leg irons. His hands were jammed into long orange tubes called “enhanced restraints.” The tubes are designed to keep handcuffed inmates from being able to use their fingers, and their thick, padded canvas covers everything from the forearm down before being sealed off by special handcuffs that fit over the wrist area and protrude from a little black box (which is in turn attached to a waist chain) that is supposed to enhance the security of the cuffing system itself. There was enough steel on Roger to create a symphony of jangling metal.

  He greeted me with a smile.

  “You ready for this?” I asked him, putting my hand gently on his shoulder. Roger nodded. “You’re going to be sentenced to eleven years in prison today,” I reminded him. Another nod.

  “Everybody ready for sentence?” the judge asked.

  “Yes, Judge,” I said.

  “Yes, Judge,” said the ADA, “but the decedent’s family does wish to make a statement.”

  This is fairly unusual, but the more serious the case, the more likely it is that there will be what is known as a “victim impact statement.” The thing is, victim impact statements in cases in which someone has taken a plea bargain are a charade. No matter what the family says, the judge can’t increase the sentence without allowing the defendant to withdraw the plea --something that almost never happens. Mostly it is a chance for the family to confront the defendant and feel as though the court is listening to them.

  “Do you object, Mr. Feige?”

  I could have successfully objected. Without the proper notice, which the DA hadn’t bothered to serve, victim impact statements aren’t permitted. But as with most notice issues, objecting just means adjourning the case and doing the whole thing after the DA sends the proper form. Looking around the courtroom at the decedent’s anxious family, I felt there was no reason to make them come back another day just because the DA was too lazy to send me the notice. It wasn’t going to affect the outcome anyway.

  “No objection,” I said.

  “Okay --bring them up.”

  Wale’s sister stepped up to the podium. Tall and thin, with an elegant face and stylish glasses, she placed a large photograph of her dead brother on the table facing my client and me, and then, reading from papers clutched in trembling hands, she began to speak in a clear, piercing voice.

  “You took my brother,” she said, so quietly I had to strain to hear her. “You gave him the death penalty, and all you’ll get is eleven years. Eleven years of commissary and family visits. Eleven years of life. My brother will never eat again, and the only family visits left for me are with his headstone.”

  Her still, clear voice began to fill up the courtroom.

  “You . . . you’ll emerge from prison able to know your son. Wale will never know his child. He will never feel his father’s touch, never know his father’s charm and beauty, never even know what you’ve taken away from him, from me, from my family. I wish you’d gotten life.” She looked hard at Roger, her eyes scanning his face for some sign of apology or explanation. Roger was so trussed up he could barely move, and he stood there returning her gaze with a steady, sympathetic look. “I wish you’d have to suffer some small part of the loss I feel every day of my life,” she said.

  Standing there, feeling the contemptuous, anguished sweep of her eyes, I found myself moved by the capriciousness of her loss, and I was acutely aware of stan
ding next to the man who had slain her brother --a man about to get the benefit of an extremely good deal that I had negotiated for him. I could feel her disdain --for Roger, for me, for a world that had taken her brother.

  Yet touched as I was by her evident and heartfelt loss, when she finally turned away, surrounded by the sad comfort of a grieving family, I still understood why despite her very real pain and loss, I was standing right where I should have been. Because as deeply as I felt Wale’s sister’s anguish, I also felt, as acutely as ever, how desperately Roger and the rest of my clients --even the guilty ones --need protection from the punitive ravages of a vengeful world. Wale’s sister had lost a loved one, and for that there was no excuse, but her victimization was hallowed, respected, and validated by the world around her. But without a proxy, there was no one to ameliorate Roger’s fate, no ears attuned to his claims for mercy or justice, and no one else to shield him from the life sentence or even the death penalty a justifiably angry sister might (were she able to) have imposed. And ultimately, protecting Roger --from a vindictive system fueled by grief and loss and anguish --ensuring that at least one person was there for him, actually felt good.

  And if that seems strange, simply consider this: even after more than a decade in the system, I still fundamentally believe in the possibility of redemption and the value of every individual. I care for my murderous clients much like Wale’s sister loved her drug-dealing brother. Their shortcomings don’t disqualify them from my caring. But somehow, when I try to explain this in the context of my work, I’m met with blank confusion. Everyone seems to understand and indeed to celebrate the ability of a born-again Christian to see potential in everyone, and to love each individual no matter what they’ve done --this is, after all, the essential teaching of Christ. But somehow, when I present this same basic belief in the context of a secular humanist thrust into the brutal world of criminal justice, it loses its coherence.

  Roger got the eleven years.

  - - - -

  Just outside the doors, I quicken my pace, heading back down the escalators toward TAP-1, where Najid is still waiting.

  “They already adjourned my case,” he tells me as I approach. “We were one of the last cases, and the judge said he wasn’t going to wait for lawyers anymore. There was some guy there, I think from your office, and he did the case. We’re supposed to come back in like three weeks.”

  I’m crestfallen. My visit with Malik meant that at the end of the day, I’d totally missed Najid’s case.

  “I’m so sorry,” I tell him.

  Judges wouldn’t dream of calling a private lawyer’s case without the lawyer present. But they do it all the time to public defenders --going so far as to dispatch their court officers to roam the halls to corral a colleague to “stand on a case.” And while rich defendants would never think to allow a judge to proceed without their lawyers, my clients, even the savvy ones, have no such sensibility. Even if they were to balk, a judge would read it as uppity rather than reasonable.

  “Really, Najid, I’m so sorry you had to waste another day on this. And I’m sorry I kept you waiting too.”

  “Don’t worry about it, man!” Najid says brightly, giving me a huge hug. I can feel his slight frame through the puffy green coat. I can’t figure out how Najid manages to be constantly smiley and enthusiastic: he seems to think that his criminal justice odyssey is perfectly normal.

  “So I’ll see you next time?” Najid asks as I copy his court date into the little black book I use to track court appearances.

  “Don’t forget about the dance!” he adds. Two weeks ago, Najid left me an invitation --a handcrafted note with a little packet of flower seeds --and tickets to the More Gardens! dance.

  “I’ll try to make it,” I tell him. And with that, he turns his acrobatic little body away from me and, leprechaun-like, floats down the grimy hall toward the escalators and the fading winter light beyond, his ragamuffin crew of garden do-gooders trailing just behind.

  - - - -

  Across the hall, in arraignments, Judge Birnbaum is still plowing through his stack of misdemeanors.

  “I’ll give her two days of community service!” I hear him say as I come through the doors. The girl standing before him has a hip jutted out and a scowl on her face. Her disaffected pose seems to have struck Birnbaum the wrong way.

  “But, Judge,” her lawyer is saying, “her codefendant just got a conditional discharge.”

  “Well, for her it’s two days!” Birnbaum snaps. He doesn’t do so well after lunch. Charming in the morning, Birnbaum loses steam in the afternoon as judging takes its toll. It’s the same in night court --after dinner he becomes more and more irritable and relies more and more on the snap judgments he seems to form during the first ten seconds of a bail argument.

  “Does she want it or not?”

  It’s clear she doesn’t, but it’s unwise to decline even a vaguely reasonable offer from Birnbaum late in the afternoon, since along with his irritability comes unpredictability. He’s thrown people in jail just to get a case over with, even though three hours earlier he’d never have done so.

  The lawyer and the defiant woman huddle for a moment, and Birnbaum’s gaze shifts upward.

  “Oh, hello, Mr. Feige!” he chimes. For all our occasional friction, I’m one of the lawyers Birnbaum genuinely likes. Over the years we’ve developed a strange and funny repartee, which seems to work for me and brighten his mood.

  “Hi, Judge!” I say, raising my chin slightly as if pointing to the mess in front of him. “I’m just here to take care of that special situation from a few weeks ago.”

  “Oh, of course!” he says, nodding enthusiastically.

  I head toward the door that leads to corrections, quickly piecing together the details of the case Birnbaum is doing. Wagging my index finger toward the still-huddling lawyer and client, I narrow my eyes and nod at Birnbaum as if to say, This isn’t worth the effort.

  Give her the CD, I mouth silently.

  Birnbaum looks away, rolling his eyes slightly, ostentatiously ignoring my utterly inappropriate behavior. Squinting my left eye and turning my head slightly, I give Birnbaum an “oh, c’mon already” look, and just as the lawyer and the girl disengage, Birnbaum pipes up.

  “I’ll give her the CD,” he says, shaking his head at me.

  “Done,” says the lawyer, leaning in again to whisper to his client.

  Putting my palms up in a “wasn’t that easy?” shrug, I mouth, You’re a good man to him before disappearing inside the steel doors to the pens.

  - - - -

  “She’s yours, right?” Officer Terra knows exactly who Cassandra is waiting for.

  Cassandra is sitting on the floor of a small holding cell staring off into space.

  “Hi, sweetie,” I say as I approach the bars. Cassandra turns and lumbers to her feet.

  “Ah, hi, David,” she says in her halting way. She’s smiling --a good sign. “I’m, um, I’m ready to come out,” she tells me, nodding sagely as if she’s spent a good deal of time pondering the issue.

  “Okay, sweetie, that shouldn’t be a problem. Have you been thinking about where you might like to go?”

  “A shelter, I think.”

  “Do you know which one? We had a few ideas for you.” I’m trying to be encouraging.

  “I think I’ll go to Brooklyn. . . .” Cassandra trails off thinking about it, her big round face betraying no emotion. “Yeah, Brooklyn . . . I, I, I like it there. Brooklyn is nice. I’m gonna try not to drink too, David. Maybe just for a few days, just, you know . . . for a few days.”

  “You know we’ll help you if you want to try to go more than a few.”

  “I know, David, but I’m gonna do it . . . you know . . . for a few days . . . take a few days off. No drinking.” She’s nodding as she thinks this through.

  “That sounds like a really good start,” I say. I’m trying to be positive, but all I can see is day three, when crack starts sounding good and she’s saved
enough money for three or four hip flasks of vodka. I’ve been through this with her before and know that pushing her doesn’t work --she just closes up completely.

  “Do you think we could make a date to talk in a few days --just to check in?”

  “Okay,” she says plainly. “I can come. Talk maybe, it’s okay.”

  “Sure, and we can be sure you’re still taking your medication. You got that, right?”

  “Yes, David.”

  “And you have the prescriptions so that we can be sure you get what you need when you get out of here?”

  “Yes, David.”

  “And you know that we’ll help you if you have to get them filled, or need to talk to someone at a shelter or something?”