by David Feige
Now back to Manhattan, to the Upper West Side, the light dull orange, the city as close to asleep as it ever gets. It is less than five miles from my office to my home. Five miles: two worlds.
My neighborhood is full of gourmet-food stores and highend baby clothing shops and, seemingly, a Starbucks on every other block. It is also full of people I could have been: smart lawyers who decided they wanted to spend their time crafting tax loopholes for rich clients worried about their capital gains; smart lawyers who decided they wanted to spend their evenings structuring multibillion-dollar mergers; smart lawyers wearing watches that cost as much as the car they’ve forgotten how to drive.
I suppose I could have had an apartment that contained more than one room. Someday I might. For now, I have what I have: the small studio that I return home to after my uptown odyssey. There to greet me: a fridge with ham and alcohol; a stereo system that still knows what cassette tapes are; and my bed, which has never looked so appealing. It has been a long day. I argued over thirty cases before six different judges. Nine clients went to jail or stayed in jail, and about twenty-two went back home. Tomorrow I will argue another five cases before three different judges.
Before sleeping, I reach under the bed. There, as it always is --the Ray Hartford file.
Ray was that third strike, the case that nearly sent me to the showers for good. Ray was utterly innocent. Charged with the robbery and attempted murder of a gypsy-cab driver, Ray is in prison because I made the mistake of trusting Judge Massaro when he told me with a grave nod that he was “well acquainted with the problems of eyewitness identification.” I believed he was telling me to waive a jury, which is exactly what I insisted on doing. But I erred. Massaro convicted, and he sentenced Ray to fifteen years in prison. Not a night goes by that I don’t touch that file and think of him, alone in his prison cell.
There will always be times when I want to hide in the trial suit closet, when I want to chuck it all before my heart breaks for good. I don’t want to end my days red-faced in cardiac arrest on the floor of Moge’s courtroom. But what I still don’t know is when it’s acceptable to turn your back, to walk away from an indefensible system, to close your eyes to injustice, to surrender. What I do know, though, is that while I wonder and until I’m sure, I’ll be uptown.
Tomorrow, the Bronx.
E P I L O G U E
On the eve of trial, Reginald McFadden pled guilty to manslaughter in the first degree and agreed to serve a ten year prison sentence. He is currently incarcerated in the Riverview Correctional Facility and is scheduled for release in February of 2010. He’ll be sixty-three years old. Edward, too, is still in prison. He will be sixty-six when he’s released. Alberto won’t even see the parole board until 2015.
Emma Ketteringham just gave birth to her first child. Though she briefly left the Bronx Defenders to join a small firm specializing in family law, she didn’t stay away too long. She’s now back at the Bronx Defenders. After three years in the work, encouraged by his wife, Jason Miller left to follow his passion for photography. Ululy Martinez, too, lasted less than three years. He moved on to a job in Bronx politics --far away from Judge Kiesel. Robin, though, remains. After more than twenty-three years in the work, she still runs the Bronx Defenders, fighting the good fight every single day --an inspiration to public defenders everywhere.
Ben Wolf went to a prestigious law school, where he did investigation on capital cases during his vacations and in his spare time. In his second year, he was banned from the San Jose Jail for passing contraband to a client. The contraband? A book by Michel Foucault. After graduating he joined the Bronx Defenders as an attorney. One his extra duties: Training new investigators.
After his release from jail, William Valentine married his girlfriend and, so far as I know, lived as happily ever after as one can after being wrongly convicted of a sex crime.
All over the Bronx, the police continue their ticket blitz.
Ron is still required to register as a sex offender. Over the years he’s applied for dozens of jobs. Despite being a great employee he loses each one as soon as his background check comes back. Kiesel should be pleased.
Just last year, the New York State Legislature passed a new law mitigating a few of the worst drug sentences. Now instead of getting a life sentence for possession of four ounces of cocaine, a defendant can get twenty-five years.
Several weeks after making him my promise, I did manage to split Malik’s case from that of his codefendant and get him the treatment he wanted.
Deaf Max was deported to a country he’d never known. The BP gas station still serves salads and motor oil at the corner of 163rd Street and Brook Avenue. Meanwhile, the Feeding Tree restaurant, reopened and remodeled, serves some of the finest Jamaican food in the world. It is located at 892 Gerard Avenue.
Fred stopped by the office recently. He'd just been released from an Arizona prison where he'd served seven years--for possession of Marijuana.
Not long after whispering her secrets of survival to me, Paula Deutsch left the Legal Aid Society. She moved to Seattle, where she remains a highly respected federal public defender. Eddie Mayr is still a supervisor at the Criminal Defense Division of the Legal Aid Society. He works in Queens, where he is reputed to be a kinder, gentler Eddie.
Alvin is as wonderful and as difficult as always --he still calls me constantly.
Diane Kiesel, Megan Tallmer, and Ralph Fabrizio are all still on the bench, wreaking havoc on the lives of poor criminal defendants and the lawyers who vigorously represent them. Judge Reinaldo Rivera, on the other hand, apparently recognized for his legal brilliance, was elevated --he might prefer “beamed up” --to the appellate division. Judge Sussman died of cancer on August 28, 2005.
I ran into Judge Cohen on the street recently. He’s retired now but seems as kindly and wonderful as ever.
I still see Cassandra too, every once and again. She’s still lost, usually homeless, and often medicated by crack or alcohol.
After two years of fighting his case, even Najid got ground down. He eventually pled guilty to disorderly conduct. He nonetheless remains a community activist in the South Bronx, a constant proponent of healthier living and the healing power of green space. He too is an inspiration.
Moge, Dawson, Adler, and Birnbaum still preside in the Bronx. Judge White is still in Manhattan. No one seems to know what happened to Tona.
Andy Liu finally packed up for warmer climes --he now works as an assistant District Attorney in Monterey County, California. Sarah Schall, though, is still uptown, though a recent informal poll of my former colleagues has elevated her from one of the worst ADAs in the Bronx to merely awful. Rumor has it that she recently dismissed a case.
Murray Richman and Mark Brenner are up there too, each still practicing his very different kind of law.
After nearly two years, assistant DA Paul Rosenfeld was replaced on Clarence’s case by a straight-shooting ex-military guy named Troy Smith. After reviewing the evidence, Troy decided that he didn’t believe Clarence committed the murder, and unlike so many other prosecutors, Smith took a stand, eventually persuading his office to do the right thing and dismiss the case.
Ray Hartford is still serving that fifteen-year sentence and is not scheduled to be released until 2014. The appeal of his case was argued in November of 2005.
After the grand jury refused to indict her, Gillian Sands began a new life without her abusive husband. She moved down south, and last I heard she was doing wonderfully well. Just before she left, she sent me a present: a coffee mug. On it there is a big smiley face and the slogan “I’m so happy I could just shit.” It hangs in my kitchen today.
To my utter amazement, Luther eventually got a job at Victoria’s Secret.
ACKNOWLEDGMENTS
I never really set out to be a writer . It was the stories of my clients and the shortcomings of the system that impelled me to write this book. So it is no surprise that my greatest thanks is reserved for the men and women
(and you know who you are --Nicole and Gary and Robert and Calvin and J and Anthony --even if I did change your names) who awe me every day with their courage in the face of a capricious system hell-bent on breaking them. To each of them, in their homes, their shelters, and their cells, thank you.
To the lawyers, social workers, and investigators at the Bronx Defenders and to public defenders everywhere, thank you for your work. To those who have fought alongside me over the years, thank you for your companionship and encouragement.
Of all my colleagues over the years, and among all those that have ever stepped up to try a case on behalf of an indigent defendant, Robin Steinberg more than anyone else has my admiration, my respect, and my thanks. The founder and executive director of the Bronx Defenders and a die-hard, truebelieving public defender for more than twenty years, Robin is an inspiration to public defenders everywhere and a profound comfort to her clients. She has been my constant companion, my intimate confidante, and my grown-up doppelgänger for nearly a decade. It was Robin who hired me, Robin who promoted me, and Robin who shaped my thinking about indigent defense while allowing me to grow into the trial lawyer I am. She is also the one who let me go --to write and wander and find my own elusive voice. I am eternally grateful to her.
The book would have been a whole lot harder to write without the support of the Open Society Institute. They had the courage to bestow a media fellowship on an untested writer, and thanks to them I was able to devote myself to the book full-time for an entire year.
Kate Black and Joan Nassivera read early drafts of the book; I am grateful for their encouragement. Jan Rostal and Andy Eibel helped me remember the damning details of my early life at Legal Aid; Jason Miller, Ben Wolf, and Florian Miedel did the same for the Bronx. Xana Antuntes, Randy Cohen, Bradley Klein, and Kimberly Stevens provided helpful literary advice. My friends Oren and Paul, Michael and Michael, Peter and Jane, Immy and Danielle, Mitch and Mich have all been there for me through this process. My agent, Tina Bennett, provided valuable guidance, and my editor, Geoff Shandler, not only moderated my hectoring tone and cured me of my “tommy gun–like” use of the em dash, he also sharpened and focused the book, offering genuine and substantial editorial assistance. In an age of little time and less help, Geoff was both available and very, very helpful. The book is better for his touch.
There would be no book, however, without Susan Lehman. It was Susan who pushed me to “just write a book.” It was Susan I called when I needed to know what the hell a book proposal looked like, and it was Susan who read and revised every single chapter of the manuscript. Susan is my sounding board, my shadow editor, my beloved friend, and, in every way, my writing partner. The book is shaped by her insights and inflected with her prose. The months we spent working on our respective books, swapping chapters every week and racing to meet our daily word counts, were some of the happiest and most exciting in my memory. I can’t thank her enough.
Finally, my mother, Ruth; my grandmother Trude; and my sisters, Michelle and Lara, have always encouraged me to make better use of my furious but creative impulses.
I hope this book has done that.
ABOUT THE AUTHOR
David Feige was the trial chief at the Bronx Defenders. He has written for the New York Times Magazine, Slate, and other publications and is a frequent guest expert on Court TV. Indefensible is his first book. He lives in New York City.
Copyright © 2006 by David Feige
All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review.
Little, Brown and Company (Hardcover)
Hachette Book Group USA
1271 Avenue of the Americas
New York, NY
David Feige (Electronic)
224 West 72nd Street #2R
New York, NY 10023
First Edition: June 2006
Library of Congress Cataloging-in-Publication Data
Feige, David.
Indefensible : one lawyer’s journey into the inferno of American
justice / David Feige.
p. cm.
ISBN-10: 0-316-15623-X (hardcover)
ISBN-13: 978-0-316-15623-3 (hardcover)
1. Feige, David. 2. Public defenders — New York State — Bronx
County. 3. Criminal justice, administration of — New York (State)
— New York. 4. Bronx (New York, N.Y.) — Social conditions.
I. Title.
KF373.F37A3 2006
345.747'27501 — dc22 2006001283
10 9 8 7 6 5 4 3 2 1
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