by David Feige
Writing sentencing letters is a miserable task. They seldom work to moderate harsh sentences, and writing them usually ends up feeling like pissing into the wind. But Alvin is before a judge who we think might actually listen, and maybe, just maybe, a sentencing letter will help. It’s been a long day, and all I’ve really done is adjourn a bunch of cases. Maybe this will make a difference, I think, as I start to hammer out an abbreviated list of Alvin’s group homes, psychiatric diagnoses, medications, and tragic circumstances. And the more I type, the more I find myself amazed at the resilience of the human character, astonished not that Alvin is in jail, but that he manages to wake up every morning and continue to face the prospect of his life. I’m also shocked not by how horrible his circumstances are, but how typical, and sitting there, behind the green glow of the computer screen, my suit jacket carelessly draped over the back of my chair, I take a moment to consider that behind the faces of the people I pass in the courthouse day after day there are stories of nearly incomprehensible pain and loss. It dawns on me, as it often does, just how much compassion it takes to begin to understand the psychic damage wreaked by an abusive, drug-addled parent, by a procession of alien group homes, by knowing that your own mother lost her rights to you and that somewhere you have siblings you never knew. In a certain way, it is no wonder the system just tunes all of this out. Listening would be deafening.
Satisfied with my little catharsis, I print the letter onto letterhead, sign it, and head around the corner so that Robin can sign as well. Reading it over, she shakes her head, understanding exactly what I’m thinking.
“You know she’ll never do it, right?”
I just nod.
Sure enough, the thirty-minute investment in a sentencing letter for Alvin makes no difference whatsoever. Judge White sentences Alvin to nine months in jail, leaving him to rot at Rikers for a few more months.
- - - -
It’s almost 5:00 when Lisa comes in with a pained expression on her face. Lisa Hoyes is tiny and very pretty, with soft dark eyes and ringlets of long brown hair. Since graduating from NYU Law School she’s been a community organizer, an advocate for troubled kids, and, finally, a public defender. Lisa has a sentencing tomorrow before Judge Massaro --one of the most odd and temperamental judges in the Bronx. He has already remanded her client, and she’s praying he’ll let her out tomorrow.
The crime: assault on a police officer.
Lisa’s client is a young girl who had never been arrested before. An orphan, she was trying to get her little fourteen-yearold brother registered for school. Thanks to school bureaucrats, she’d tried and failed to do this three times already, having been turned away for providing insufficient or incorrect paperwork. On their way out of the school, two truancy cops tried to detain her brother, claiming that he had no right to be in the school in which he was trying to register. The cops grabbed the kid, and she tried to snatch him back. They pounced, and one of them hurt his finger. Sis got arrested. And now Judge Massaro may send her to state prison.
“I swear I’ll kill myself if he sends her upstate,” Lisa says gravely.
Burnout is stealthy. It rarely arrives with the bang of revelation; rather it’s the creeping suspicion that maybe everyone around you is right --your clients really are scum, the system really is completely broken, and you can’t really touch anyone’s life anyway. It is the sneaking sense of futility that undermines your resilience, that makes you unable to wake up the morning after a defeat, ready to fight twice as hard. Burnout sets in when outrage ends. It happens over time, and it hastens with every cataclysmic conviction. My personal theory is that most public defenders can’t survive much more than three of these before they start to fry.
The ones we plead guilty don’t count. Neither does the incarceration of clients we care about --that stuff happens every day, and if we only had three of those in us, we’d last about a week in the work. By cataclysmic convictions, I mean the unjust conviction of beloved clients at trial.
The first time it’s a shock. Watching them drag William away, I was utterly uncomprehending. There must be something I can do, I kept thinking to myself. The finality of the judgment hadn’t yet set in. But as hard as that was to survive, I came back stronger after William --more determined than ever to be sure that it never happened again.
Then I lost Juan. I sobbed uncontrollably after they took him away. And for a while afterward, I thought I’d never be able to go back to work. Juan was a big, slow goofball of a client who’d been present at a fight between two groups of kids in which one kid took another kid’s jacket. All were charged with armed robbery. All of them were convicted. The kid who took the jacket got fourteen years. Juan got the minimum --two to six years --but he should have been acquitted.
I felt it acutely after Juan. It was, at that point, the worst conviction of my life. I began to despair. The system was grinding on, and I was being ground down. Exhausted and overwhelmed by the futility of my struggles, I began to take it out on my clients. I stopped listening, stopped feeling, and lost the ability to muster the wherewithal and compassion that a defender depends upon.
It took me months to get over it, to find my way back. But eventually, after some drinking, some sleeping, some soul-searching, and a little vacation, I picked myself up, dusted myself off, and devised the three rules that I decided could ensure my longevity as a public defender: trust yourself, pace yourself, forgive yourself.
Given the volume of cases, a public defender has to make an almost unfathomable number of snap decisions during the course of the day --take the plea or get a trial date, deal with the DA or go straight to the judge, send a client to the grand jury or just wait for trial. Every one of those decisions has potentially catastrophic consequences for a client, and being an effective decision maker requires a preternatural confidence. That’s the first part --trust yourself, trust your instincts. Generally they’re good.
Second, remember that no matter how hard you work and no matter how efficient you are, no amount of work will ever be enough. There is an inexhaustible supply of clients, and almost every single one of them will need more than you have to give. There is never going to be enough money, enough time, or enough compassion to do much more than triage. Even when you do focus on someone, their needs are usually so beyond your capacities that no good will come of the effort. Accept this as a condition of your life and work as hard as you can for as long as you can every single day, and then when it’s finally time to go home, accept that you’ve done all you can do --pace yourself.
The problem is that with all that volume, with all those decisions, you will screw up. It’s inevitable. Every public defender is going to make mistakes, and those mistakes are going to take a terrible, inexcusable, and unforgivable toll on the lives of the clients you love. It’s just going to happen. You will err, and someone will go to jail because of it. Somehow, to survive in the work, you need to find a way to forgive the unforgivable, to accept and acknowledge that you’ve screwed up, and to recognize the price of that screwup without becoming so paralyzed that you can no longer do the work. As bad as you may think you are, clients need you --they are desperate for decent lawyers. Don’t be your own worst enemy. Forgive yourself --or you’ll burn out in two years.
For many years, trust, pace, and forgive worked well as coping strategies, though in my heart of hearts I knew that their talismanic power would be unlikely to protect me a third time.
In the ensuing decade, I walked some clients out from under overwhelming evidence --Steve, caught red-handed in the apartment of the man he allegedly kidnapped, bloody duct tape and guns recovered from the scene, a gold identity bracelet with the complainant’s name on it allegedly recovered from his pocket: not guilty.
I also lost some I should have won --Jason, convicted of assault for slashing his cousin’s face at a kid’s birthday party despite the strong evidence of self-defense: he got four years, got out, and a year later, thanks to the conviction, got deported.
&n
bsp; But none of them were the third strike --not even Ron, Ululy’s client, whose life Judge Kiesel ruined with a fraudulent conviction. That stung, and it made me furious, but it wasn’t my case and it wasn’t the third strike.
The third strike was Ray.
Interrupting my thoughts, the intercom buzzes: it’s Robin. “You know we’ve got night court tonight?”
“I know,” I say, sounding more annoyed than I actually feel. “Please don’t be late again --it’s heavy over there.” “I’m on my way,” I say wearily as I send Lisa off with a reassuring smile and a promise that Massaro will give her client probation (he does). I grab a pen, pull on my crinkled suit jacket, and head back toward criminal court, toward another stack of court files, another overworked judge, and another cell full of poor, incarcerated wretches living in a long, melancholy night.
F i f t e e n
5:18 P.M.
I love night court. I love the silence of the courthouse. I love that I can hear my footfalls on the tiles, that there is no line for the magnetometer, that the small complement of court officers greets me with “Hi, Dave” instead of brutish indifference. I love the purity of the empty courthouse, the stability of being in one courtroom for an entire shift, the ability to focus on the cases in front of me without worrying about running somewhere else.
I have done as many as fifty-five misdemeanors in a single night shift.
Somehow, in night court, the regular drone of the system can take on an eerie and sometimes comical cast --as if fighting fatigue, alone together in the building, everyone is finally able to see the tragedy and comedy of things more clearly. It was in night court that I first saw staples in someone’s head. They looked just like the staples that are in a stapler: a long row going from the top of the forehead to the base of the skull like a welding job on a robot’s head. They were the result of smart-mouthing a cop.
Another night, a forty-six-year-old woman is charged with a gunpoint robbery, her first arrest. The police have no gun, no property, no nothing; it’s a one-witness ID case. Still, the assistant district attorney wants her in jail. The judge looks down at the ADA incredulously and asks, “Are you telling me that at forty-six this woman just started doing armed robberies?” The assistant DA has no answer, and the woman is released.
On still another night I’m standing in the small, cramped enclosure between the bars that lead to the cells and the solid steel door that leads to the arraignment courtroom. It is well after midnight, and night court is in full swing and particularly pungent. Eight or nine people are squeezed into an area of less than four by six feet. Everyone has been in the system for at least sixteen hours, and most are sweating and smelly. In the corner, her ass pressed against the bars, a sassy prostitute wearing a skintight flesh-toned halter top is taunting the boys: “Whatch you all looking at my titties for?” she says over and over. “Yeah, you . . . why you looking at my titties?”
The men are nodding approvingly or ostentatiously averting their eyes. Her breasts are, in fact, prominent and spectacular, and her sassy tone and jutting hips add to the effect. And just when it seems as if someone is going to try to grab a handful, her case is called, the steel door opens, and she wiggles her way into the courtroom. In about thirty seconds she pleads guilty, gets time served, and struts out --heading, in all likelihood, back to her stroll. With her gone, the men in the well go back to their dissatisfied, defiant poses.
Night court in the Bronx runs from 5:00 p.m. to 1:00 a.m., 7 days a week, 365 days a year. Although judges are generally assigned to specific courtrooms, every criminal court judge also has to do a short stint in night court every once and again.
Tonight, as I walk in, musing about motions left unwritten and the calls that have gone unanswered, strolling past the magnetometers and the unhurried, friendly court officers, up the stalled escalators to the second floor and into the arraignment part, I’m trying to find the energy to propel me through another eight hours --to forget about Reginald and Clarence, Najid and Malik, Cassandra and Jaron, and focus on the stack of new cases that awaits me.
Two factors are highly predictive of how long and painful a shift in night court is about to be: the judge and the system numbers. Both bits of information reside in the clerk’s office, where the rotating schedule of judges is taped to a battered metal file cabinet and the number of arrestees “in the system” can be gleaned from a stack of computer printouts listing in chronological or alphabetical order every arrest in the past forty-eight hours.
If the load is light, it usually means an early night, plenty of time to talk to clients, and maybe even a nice long dinner break. On a heavy night, though, the cases come fast and furious, and there is intense pressure to get the clients interviewed and arraigned as quickly as possible. Then, night court can become extremely unpleasant --a constant battle between an impatient judge and exhausted lawyers who insist on taking the time they need to adequately defend their clients.
Even more important than whether it’s a heavy night or not is the judge. If Megan Tallmer or Ruth Sussman or Ralph Fabrizio is on the bench, the best thing you can do for close-call clients is forget about them --let them sit another night and take their chances with the day judge. That’s because judges like Tallmer and Sussman and Fabrizio love to coerce pleas and are, therefore, much more likely to set five hundred or one thousand dollars’ bail on nonsense cases in which a better judge would just release the defendant.
This radical difference between judges quickly becomes apparent, and I have often seen baby lawyers return shell-shocked from their first awful-judge-arraignment shift. The powerlessness of arraigning case after case before a judge who doesn’t listen to a word you’re saying and brusquely dispatches almost everyone to Rikers can reduce almost anyone to tears.
Scanning the list, I breathe a sigh of relief --Judge Dawson will preside tonight. Occasionally intemperate, exceedingly smart, and, most important, reasonable, Dawson is a fine draw, and knowing that he’ll be up there briefly banishes my fatigue.
The arraignment routine is always the same. In a corner of the courtroom, the Bronx Defenders huddle, waiting for cases to appear. Periodically, someone from the Clerk’s Office will emerge carrying a stack of paperwork --one set goes to the court, the other is delivered to us. Each case contains a complaint --the legal document that officially begins a criminal proceeding --a rap sheet and what is known as a CJA sheet, the product of an interview at Central Booking, where clients are asked where they live, who they live with, where they work, and some other questions designed to elucidate their ties to the community.
The complaint is usually just one page --it lists the charges and the specific code sections someone is accused of violating, and provides about a paragraph of detail in odd punctuation and legalese explaining just how someone violated the law.
The deponent is informed by informant that At the above TPO [time and place of occurrence] The defendant, aided by another actually present, did forcibly remove property from informant without his permission or authority while displaying what appeared to be a firearm.
The deponent is informed by informant that at the above time and place of occurrence, The defendant did, have sexual intercourse with informant by forcible compulsion.
Deponent observed defendant enter the New York City Subway system without paying the lawful fare by jumping over a turnstile.
The cases go into a metal basket, and a clerk from our office divides them into a stack of misdemeanors and a stack of felonies. If a bunch of new cases comes in all at once, the lawyers divvy up the spoils.
“I’ll give you the rape if I can have the arson. . . .”
“I can’t do another DV case. If you take these, I’ll do the petty larcenies, the two weed cases, and the car case too.”
“Anyone want a drug sale? I’ve already done two tonight. . . .”
It’s just before 6:00 when the first batch of cases comes in. There are about a dozen in the first stack, nothing too unusual --a pile o
f misdemeanors and a few mostly low-level felonies. Tonight I’m working with a particularly good crew --Robin, Jason, and Aaron, whose steely resolve and clean, elegant thinking make him a powerful courtroom presence. Robin and I divide up the misdemeanors, and I grab a felony or two as well.
“You ready?” I ask Robin as I pick up a pen and a stack of my business cards.
“Let’s do it,” she says with a smile as we head through the heavy blue doors, into the well, and then back into the cell block beyond.
“Yo! Feige.”
I’ve barely rounded the corner toward the cells, and already I’ve been made. It’s Jermaine, a client I once represented in an assault case. Where I grew up, the “assault” Jermaine was charged with was what we’d call a playground fight. (In the highly policed inner-city school yards of New York City, even a recess dustup can make its way into the criminal justice system.) But now here he is in the cells behind the courtroom, calling my name as if we’re out on the streets.
