The Divide: American Injustice in the Age of the Wealth Gap

by Matt Taibbi

  The lawyers were not the young, sharp, idealistic types sent to man felony and misdemeanor courts by organizations like Legal Aid. They were both elderly private lawyers working on contract with the state, dealing out mountains of public-urination or loitering cases for a few nickels a day, the legal equivalent of digging graves or cleaning public toilets, desperate work.

  The young black defendant would whisper a story in one or the other lawyer’s ear, then the lawyer would bargain with the judge. Or was it the old defense lawyers and the judge bargaining with the defendants? More often than not, it seems like the judge and the lawyer are cooperating in their efforts to get people to settle.

  “This place is fucked up,” whispered Andrew. “You see people coming in here drunk, and they’re answering summonses for being drunk. Like you can smell it four rows away sometimes.”

  “Mohammed A—I want to say Adil,” called out the harried clerk. “Public urination.”

  This time the defendant wasn’t black. It was an older bald Middle Eastern man who looked terribly ashamed to be there. He walked up, whispered to one of the two old lawyers, who were a human version of Statler and Waldorf of Muppet Show fame, with one taller and liver spotted, the other shorter and with a pig’s face.

  “Do you have a medical condition?” Statler asked. The man shook his head, then leaned over and whispered. “Oh,” said Statler. “Oh, I see. Hmm.”

  The lawyer turned to the judge. “Your Honor, this story is so incredible, it has to be true. This gentleman is a taxi driver, and he has a special bottle he carries so that he can go to the bathroom. And he was driving, and it was raining, and …”

  He leaned over to his client again for more details, and suddenly Statler reared back. “Wait, were you inside the cab or outside of it?” he said. Next thing you know, the defense lawyer is turned toward his “client” and interrogating him in front of the microphone. “It doesn’t matter that you stopped your cab, you got out of the cab, you understand? You’re exposing yourself outside the cab, on a public street!”

  As if to make his point more clear to his foreign client, he gestured, pretending to unzip and whip it out before the court.

  “Counsel, some of your gestures are a little too graphic,” the judge admonished.

  “I’m sorry, Your Honor,” Statler said. “It’s just—”

  “But I had a bottle …,” the taxi driver repeated, in heavily accented English.

  “It doesn’t matter that you had a bottle,” his lawyer chided. “You can’t pull that thing out on a street! Children could see!”

  It was amazing. This poor sap of a defendant had received a simple public urination summons, and his own lawyer was now about to talk him into a child molestation charge in court. It was like a punch line in a Truly Tasteless Jokes collection.

  After some more tragicomical wrangling, the devastated taxi driver pleaded on the peeing charge and took a fine. We watched some more justice administered, almost all of it penny-ante stuff: open-container violations, a stolen bike, a few traffic cases.

  Soon the arresting officers from both of Andrew’s cases arrived. There was a tall black guy on the smoking charge, and a buzz-cut, hulking white dude on the obstructing pedestrian traffic case. So we’d have a trial after all.

  Andrew decided to step into the hallway to make a call. On his way out, he held the courtroom door open and gestured to the bailiff.

  “I’m going to be right outside, I just need to make a call,” he said.

  “Close the door, or you’ll get another summons!”

  About ten minutes later the clerk called out his name.

  “Andrew Brown?” she said.

  “He’s outside,” the bailiff responded, jerking his thumb toward the door.

  Statler followed the bailiff’s thumb. Uh-oh. Well, let Andrew explain the story to the man; hopefully he’ll get it. I figured it would take five minutes to explain.

  Five minutes passed. Then it was ten. I started to wonder what was going on, then I heard a commotion in the hallway. I got up, and just as I made it to the door, the lawyer burst in and looked mournfully at the bailiff. “That guy won’t shut the fuck up!” he yelled.

  I went outside. Andrew was pacing in obvious consternation.

  “What happened?”

  “I was trying to tell the guy I just wanted to pay the fine on the first one and contest the second, and he wouldn’t let me talk,” Andrew said. “He comes out here, says something about how the judge will probably let me off with a fifty-dollar fine for both of them. Like a two for one. He’s like doing that maneuvering thing. And I’m trying to tell him no, I want to fight the second one, and he got all pissed at me and ran inside.”

  A court officer had to intervene and get Andrew the other lawyer. After some minutes, the other lawyer came out. Again, this was a very old man who looked too tired for this work. He stood there examining Andrew’s papers for a moment. Despite the fact that he must have been doing this for years, it was clear that the papers told him nothing, that they were an absolute mystery to him.

  “Look, I’ll pay the fine on the first one, okay?” Andrew said.

  “This public smoking one?” the lawyer asked.

  “Yes,” Andrew said. “Just forget about that. I’ll pay it, it’s okay. But this other one, I want to fight it.”

  The lawyer looked at the summons. He looked and he looked. A spider crawled halfway up the wall next to him. Still he looked at it. Finally, after many minutes, he turned to Andrew.

  “It says here you were obstructing pedestrian traffic,” he said.

  “That’s what it says,” Andrew said. “But I was standing in front of my own house at one in the morning.”

  “But what are you arguing?” he said. “I don’t understand.”

  I made the mistake at this point of trying to talk to the lawyer myself, trying to point out the absurdity of a man being arrested for standing in front of his own apartment. Oddly, just the mere fact of me trying to talk Andrew’s lawyer into fighting for his client attracted police attention. An officer in the hallway who had been listening to this conversation stepped in and pointed at me.

  “Sir, I have to advise you,” he said. “Conversations between an attorney and his client are private. Confidential, like. So you’re going to have to back off.”

  This wasn’t true, but it wasn’t worth arguing. I left it alone. The lawyer returned to reading the summons, frowning, still clearly struggling with why Andrew was contesting it.

  “Well,” he said to Andrew, “were you being a wise guy or something?”

  Andrew explained that he was not. “No, no, I was coming home from work,” he said. “I was wearing a tie!”

  The lawyer looked up. “You have a job?” he asked with undisguised, obnoxious surprise.

  “Yeah,” said Andrew. “I drive a shuttle bus.”

  “Huh,” the lawyer said. “Well, the judge will probably give you fifty dollars for both of them,” he said at last.

  Andrew buried his face in his hands. “I just explained to you,” he said. “I’m not pleading to anything on that second one. Do you understand?”

  The man nodded. “Oh, I see. Well,” he said finally, “what about twenty-five for both? Would you take that?”

  Andrew’s eyes opened to the size of tea saucers. I thought he was going to scream. Instead, he bit his lip and said, “No, I won’t take anything. I want you to ask the officer in there what pedestrian traffic he is referring to in that summons. It was one in the morning. The street was empty. This is in front of a residential building, my own building.”

  “You want me to ask him what traffic he’s talking about?” the lawyer said.

  “Yes, exactly.”

  “And you won’t take twenty-five?”

  “I won’t take anything,” Andrew repeated.

  The man shrugged, as if to say, It’s your funeral.

  They went inside.

  Andrew stood before His Honor. The summons charges f
rom both cases were read out. The lawyer instructed the court that Andrew was willing to plead to the first case. At this, the judge dismissed the first police witness, the young black officer who had written Andrew up for smoking. That left only the other officer, the one who’d hit Andrew up with the obstructing charge and who’d signed his name on the summons.

  Andrew, Waldorf, and this officer stood before the judge in a line. The judge asked what the heck was going on.

  “Your Honor,” the lawyer said with a pronounced tone of apology, “I’ve been instructed by my client not to plead on this offense.” It was as though the lawyer didn’t personally want to touch Andrew’s “not guilty” plea.

  “And why not?” the judge asked.

  “I didn’t do nothing,” Andrew said.

  The judge frowned and looked at the paperwork. He went through the same routine as Andrew’s lawyer, only he processed the information a lot faster. It was clear, in fact, that this was the principal difference between these two men.

  “It says here you were blocking pedestrian traffic,” the judge said.

  “There wasn’t no traffic,” Andrew said. “It was one in the morning, in front of my own house.”

  The judge nodded, then instantly looked at the lawyer. “Will he take fifty for both of them?”

  This comedy was now moving to Zucker Brothers territory.

  “No, Your Honor, like I said, he’s not pleading,” cried the lawyer in anguish.

  “Hm,” the judge said. He turned back to Andrew. “So you say the street was empty, huh?”

  “Yes, sir,” Andrew said.

  “Okay, then,” he said. He turned to the officer, made him raise his hand and swear in as a witness.

  “Why did you give this man a summons?” the judge said.

  “Your Honor,” the officer said, “the defendant and his friend were completely blocking the entranceway to the building.”

  “Were there any other people on the street?”

  “Your Honor, the point is, they were standing in a way so that nobody could pass—”

  “But were there any other people on the street?”

  The policeman took a moment to gather himself, then sighed. “I didn’t see any, Your Honor.”

  “Okay, then,” the judge said. “Not guilty. Next!”

  Out in the hall, Andrew was shaking his head. “You see how many times they tried to get me to take a deal?” he said. “Even my own lawyer?”

  He went down the hall to pay his fine on the smoking case.

  After Andrew left, I went back into the courtroom. At a lull in the action, I asked the lawyer out into the hall to speak. He rolled his eyes, then finally came out.

  I tried to start over with him, gave him my card, offered to shake his hand. Looking angry at first, he said he was sick and didn’t want to touch anyone. Then he softened up suddenly and introduced himself. He gave his name and said he was working on contract for the state. He didn’t always do this stuff, he said—he sometimes did arraignments and other duties.

  He fingered my business card, stared at it. “What exactly are you doing here again?”

  “I’m writing a book,” I said. “It’s about the criminal justice system. Among other things, about cases like this.”

  “But what about a case like this could possibly be the subject of a book?” he asked.

  “Well,” I said, “we just watched, in court, a policeman admitting to falsely arresting someone. You don’t find that interesting?”

  He shrugged.

  “Also,” I said, “have you ever heard of a white person being arrested for obstructing pedestrian traffic?”

  “Well, white people don’t live in those neighborhoods,” he said.

  “But white people live somewhere,” I said. “And nobody arrests them for obstructing pedestrian traffic.”

  “That’s because that’s not where the crime is. The crime is out there.”

  He jerked a thumb in the direction of Brooklyn.

  “Low-class people,” he said, “do low-class things.”

  December 2012, just after ten a.m., a first-floor courtroom in Brooklyn. A fifty-four-year-old Latina prostitute with frizzy, matted hair and ripped jeans is trying to stand up before the judge, but she’s whacked out, nodding and leaning to one side. She tried to keep her eyes open when they first brought her up from the pens, but now they’re almost totally closed.

  “The people’s offer is time served and a misdemeanor,” a voice, presumably the prosecutor’s, mumbles into a microphone.

  The accused does not react. Her eyes are still closed.

  “Correction, the revised offer is a violation,” the same voice grumbles.

  This time the woman opens one eye, just barely. She’s surprised. This wasn’t in the script.

  The defendant’s court-appointed attorney is an attractive, idealistic young white woman with shoulder-length brown hair and a long skirt who looks like she should be an academic, a sociologist maybe. The public defenders in these higher courts are almost all workaholic do-gooders, passionate and almost unreasonably committed to their jobs. On the macro level, they can’t do much about the convictions factory. They’re like partisans trying to slow an invasion by throwing their bodies under tank treads. But on the day-to-day, case-to-case level, they don’t miss much.

  In this case, the PD is flipping through her client’s file and then stops. She’s spotted it. The whatever-it-is that’s made the no-longer-young, tired-looking Hispanic man pulling arraignment duty for the DA’s office that day reduce his offer, she sees it.

  “Your Honor,” she says. “The allegation here is that the defendant was approached by an undercover officer.” She pauses, flips through her papers again. “But the supporting document is made out by a different officer, a Sergeant …”

  I’m in the gallery, and a lawyer next to me first chuckles, then leans over and whispers.

  “Under law, the judge can dismiss if it’s not a legally sufficient document,” the lawyer says. “And there’s something fucked with this arrest—both sides know it. Otherwise the arresting officer would have made out the affidavit.”

  The complaint says an undercover officer—a UC—offered the woman twenty dollars for a sexual act outside a park somewhere north of three in the morning, and the defendant accepted. Why we’re paying detectives to offer people twenty bucks for sexual acts in parks after three in the morning is a question nobody’s much interested in answering at that moment. More interesting to those present is the fact that both the police and the DA’s office seem to know the arrest was screwed up somehow. Maybe the undercover officer crossed some kind of entrapment line, maybe he woke the defendant up to offer her the twenty bucks, who knows. But they’re going on with the case anyway.

  “Yeah, there’s no way she’s getting off,” the lawyer next to me whispers. “She’s got thirty-five priors.”

  The woman’s record is all misdemeanors, mostly for prostitution-type offenses, lots of loitering. But thirty-five priors nonetheless. Nobody with thirty-five priors gets a complete walk in this courtroom.

  I crane my neck to try to see what’s going on, and all I can see is defense, prosecution, and judge leaning toward one another, negotiating. Somebody mutters into a microphone: “Her supervisor will accept time served and the violation.” Then there’s nodding all around, and suddenly, like a football team breaking a huddle, all parties retreat to their own stations. A gavel is rapped, and the defendant, nodding but eyes still closed, is led away. She’s agreed to the violation.

  If you just walked in off the street and watched that scene, you wouldn’t think much of it. But to people who do this for a living, the decision by a haggard and probably homeless streetwalker to pay a fine for a bad arrest comes down to an elaborate series of mathematical calculations, most of which the public has no conception of.

  In a vacuum, that prostitute’s case probably would have been tossed out. There was something wrong with the arrest, and if it were someh
ow to go all the way to trial, the state would probably lose, a fact seemingly recognized by all sides in their brief, ten-second deliberation.

  But the state doesn’t have to win at trial, a truth captured in another common expression in this courtroom: “The punishment is the process.”

  The state could charge a misdemeanor anyway and demand high bail and almost certainly get it. After her arrest, the fifty-four-year-old woman had been interviewed at the precinct house by a (probably bored and sleep-deprived) bureaucrat from the nonprofit Criminal Justice Agency, who asked her questions about her address, her criminal history, whether she would have family coming to the court this morning (she would not), and whether she’d ever missed a court appearance.

  The answers were all bad ones. Tons of convictions, tons of arrests, a history of missed appearances, it all added up to one thing: If the state asks for bail, she’s not getting it.

  Bail. In criminal cases big and small, it’s the whole thing. Everything comes down to bail.

  Lawyers in this courthouse have yet another saying: “If you go in, you stay in. If you get out, you stay out.” If you get arrested for a B misdemeanor in New York City—let’s say it’s prostitution—you might face a punishment of fifteen to ninety days. But if you don’t make bail, you’ll almost automatically spend at least that long in jail waiting for trial.

  The state knows this, so essentially, charging a person who can’t make bail with a B misdemeanor is the same as convicting that person. You file the charge, the judge sets high bail, you go back inside, and then you eventually plead to time served, because, well, why not? You’ve already done the time.

  The only difference is, you’ve got a conviction now, which means the next time you get arrested, the denial of bail—or a punishingly high bail—will be even more automatic. Additionally, every misdemeanor conviction in New York carries a two-hundred-dollar surcharge, plus you have to have a DNA sample taken if it’s your first. And that’s true for a violation of every single penal law in New York State, excepting traffic violations. So your DNA is on file forever, and giving the sample costs fifty dollars, a testing procedure that, of course, you pay for yourself.