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

by Matt Taibbi

  Nonetheless, because the prosecutor had declared himself “ready” two days after trial, the court only “charged” the state two days toward the ninety.

  A month or so later the whole scenario could be repeated. In this fashion a case that is supposed to go to trial within ninety days can take a year, a year and a half, two years to be heard. For someone out on bail, like Josh’s client, this is merely incredibly stressful and a major inconvenience.

  But for someone in jail awaiting trial, it’s a preposterously excessive punishment. It’s especially harsh since most misdemeanor cases don’t even threaten the defendant with that much jail time even in the case of conviction.

  Thus the speedy trial concept, what some lawyers call the crown jewel of the Anglo-American legal system, is easily reduced to a complete joke.

  Prosecutors won’t say so openly, but privately, they will admit that when their cases are weak, they drive their cases through this Lincoln Tunnel of a procedural loophole, dragging things out as long as possible to force a plea. It usually works.

  As with everything on this side of the Divide, the process is made to be humiliating and pointlessly time-consuming for everyone involved, lawyers included.

  When I ask one lawyer how much time he’s spent in courtrooms over his career, he snaps.

  “You mean useful time?” he growls. “Because ninety-nine percent of everything we all do here is just totally fucking stupid.”

  If you’re charged with a crime, and you get notice of a court appearance, you have to show up to a packed room at an appointed time that in reality is only an approximate time. If it says 10:30 a.m. on the notice, you may end up waiting three, four hours for your case to come before the judge.

  During that time you are permitted to do exactly one thing: sit in court and watch the action. There is no talking, sleeping, eating, or reading in any of the courtrooms like the one on Schermerhorn Street. You must pay attention to the judge at all times.

  Some of the judges are insanely touchy about these rules, too. Judge Charles Troia, a glowering dark-haired man who runs a courtroom on the eighth floor, has a particular mania for talkers and readers. He has his court officer bark out instructions on the matter repeatedly throughout the morning.

  “In case you missed the sign,” the officer yells out, “there’s no reading, eating, or sleeping. Listen up! It’s going to be a long night.”

  The ban on reading is particularly odd, given that some of the judges have literary ambitions. Judge John Wilson, who by the time this book is published will have moved from the Brooklyn courts to the Bronx, is notorious in this courtroom for having authored a children’s book called Hot House Flowers.

  The book is a leaden allegorical parable about immigration, in which a beautiful greenhouse full of well-nourished roses and other gorgeous flowers comes under attack by dandelion “weeds” from the uncivilized world outside, who sneak in as seeds through the hothouse roof. The weeds suck all the healthy flowers dry, but the flowers eventually summon the strength to boot the weeds back out into the desert.

  “And in a little while,” he writes, “the flowers of the hot house were standing tall and healthy, and their petals were beautiful once again.”

  After being ejected from the hothouse the weeds finally get the message.

  Seeing the fate of her seeds, the dandelion stopped trying to send more into the hothouse.

  Instead, the flowers who lived outside the hothouse tried to make their own world a better place.

  And the flowers of the hothouse lived in peace.

  “The moral of the story,” chuckles one lawyer, “is that if you’re a greenhouse flower that’s great. But if you’re not, stay the fuck out of the greenhouse.”

  A side note on Wilson—a gray-faced, mild-looking man who actually has a decent rep with defense lawyers, although low-income defendants who’ve either appeared before him or have friends who have are less crazy about him—his book is so infamous, protesters at one time planned to make dandelion T-shirts for defendants to wear in his courtroom. Wilson was briefly the judge in a case with direct relevance to Andrew Brown’s situation and to the whole concept of QOL arrests in general.

  In November 2011, there was a protest against stop-and-frisk in Brooklyn. A group of agitators, including actor Gbenga Akinnagbe (who played the frightening assassin Chris Partlow in The Wire), arrived at the city’s Seventy-Third Precinct, where they stood chanting and waving signs. Suddenly the whole lot of protesters was arrested, originally for “obstructing government administration,” the ostensible reason being that a police captain saw one of his officers leave the precinct and go back inside after seeing the crowd. In other words, a police officer was so frightened by the sight of a bunch of lefty protesters that he was “obstructed” from his duty to leave his precinct and go out policing.

  When a videotape surfaced showing that the sidewalks were completely clear that day (the protest was not large), the charge was reduced to disorderly conduct. This time, however, it wasn’t “obstructing pedestrian traffic” but “refusing a lawful order to disperse.” Apparently, the police captain had ordered the crowd to leave, and they had not. The only problem was, the protesters weren’t breaking any laws, a situation the state itself had admitted to when it dropped the charge of “obstructing government administration.”

  On the surface, this sounds like an annoying and trivial case involving the peculiar sort of mental masturbation one sees only from politically left-leaning protesters who have a tendency to go out into the world looking for ways to get arrested.

  But look a little deeper, and the state’s refusal to drop the stop-and-frisk protest cases over the course of nearly two years is highly symbolic, because there’s a key legal issue buried in the case.

  “The question is,” says Daniella Korotzer, who represents some of the protesters, “do the police have a right to just tell you to move no matter what? And can you be arrested if you refuse?”

  There are two important concepts here that work hand in hand. One, there’s the idea that failure to follow a police order, no matter how stupid or unreasonable, is cause for an arrest or a summons. The second idea is that the prosecutor can essentially turn any misdemeanor case against almost anyone into a de facto conviction, simply by filing charges and following through long enough with pretrial pressure to wrest a plea out of the accused.

  These two concepts operating together have resulted in a new policing method, one that relies upon thousands of arrests for trivial offenses, real and imagined.

  Police spill out into neighborhoods and troll for arrestable subjects using methods that, again, are closer to commercial fishing than old-school surveillance and investigative policing. (There is even a roving factory boat you bring your catch to, i.e., the van cruising through the neighborhood.) You round people up, search them, and if they don’t bend into exactly the shape you order them to bend to, you pull them in and slap them with a summons.

  This is going on all over the country. In Baltimore, a former police officer named Peter Moskos wrote a book called Cop in the Hood that described how police routinely would order people to move off a spot—exactly what Andrew goes through once a month or so—and then arrest them if they’re too slow or give an attitude or for any reason at all. They search people, look for drugs or guns, and then throw them back in the ocean, but not before arresting them for loitering. In one typical year, in 2005, more than 22,000 people in New York City were arrested for loitering. The vast majority of those arrests were dismissed, but the original crime in nearly all those cases—refusing to obey an order to move—was and is a legal absurdity, creating what one city councilman called an “epidemic of false arrest.”

  If you think Andrew’s story of being repeatedly arrested for “obstructing pedestrian traffic” is fanciful or not representative, walk the streets of New York and ask any young male resident in the outer boroughs how many times he’s been stopped, searched, and written up for failing to obey an or
der.

  “How often? I’d say about sixty times before I turned nineteen,” says Tyquan Brehon, a young man from the Bushwick area of Brooklyn.

  Unlike Andrew, who looks like a tough guy from a distance, Brehon, now in his early twenties, looks like a musician or a stand-up comic. He’s a slight young man with a big smile and a sarcastic sense of humor. He was working as a clerk at a Manhattan department store when I met him and was also trying to get into John Jay College. Like Andrew, he grew up watching cop shows, but he was more into the law side. “I watched a lot of Law & Order,” he says. “I thought about being a lawyer, still do.”

  Tyquan never had any kind of real criminal history, but what he does have is something far worse: a mouth. Every time he gets stopped and frisked, he has something to say about it, and he ends up being dragged to jail. His most absurd story came when he was visiting his cousin across the street from Bushwick Community High (where he was going to school at the time), at the corner of Wilson and Palmetto. He and a bunch of his friends were getting ready to go play basketball when a pair of police rolled up.

  “They put us all up against the wall,” he says. “And I was like, ‘What’s this for?’ And the guy says, ‘Oh, a smartass, huh?’ ”

  Not pleased with Tyquan’s mouth, he rifled through Tyquan’s pockets and found a pink Hi-Liter marker.

  He looked up and down at the foyer of the apartment building where they were standing and noticed the walls were all marked up. “So,” he said, “you’re the one who’s been doing all this graffiti.”

  Tyquan shook his head. “I turned and said to him, ‘Man, what’s wrong with you? How can you make black graffiti with a pink Hi-Liter?’ ”

  The other kids laughed. That was enough for the burly Latino officer who was searching Tyquan. They dragged him to a squad car, kept him in a precinct for eight hours, then pushed him out a back door at four in the morning with a summons.

  “What you have to realize, it stinks in those jails,” he says. “You’re in there with all these crazy people. For nothing.”

  It’s cases like this that take up vast amounts of time in the Brooklyn courts. If it’s not disorderly conduct by Hi-Liter, it’s selling more than ten toys on the street without a license, or beating a fare, or occupying two seats on a subway car. “Deponent states that deponent observed the defendant at the above-listed location,” reads one complaint in a case I watched in late 2012, “to wit the entrance of a McDonald’s, and observed the defendant opening the door for a number of individuals.”

  The cases are almost all nuisance cases, yet they’re charged with extraordinary precision. One of the more common violations—140,000 cases a year, remember—is the age-old drinking from an open container. In the summer of 2012, a judge named Noach Dear, rotating into Brooklyn for part-time duty, infuriated the city when he challenged the public drinking summons of a Latino man named Julio Figueroa.

  “As hard as I try, I cannot recall ever arraigning a white defendant for such a violation,” he told The New York Times. He later had his staff check and found that only 4 percent of all public drinking summonses were issued to whites, while 85 percent went to blacks and Latinos.

  Ultimately this all comes down to discretion. If they want, the police can arrest you for just about anything.

  In the courts you hear story after story: The carpenter on the way home from work gets a car stop and gets busted for having a box cutter in his truck. The undercovers who crowd into the Bushwick Avenue subway station when school gets out so they can bust teenagers jumping subway fares.

  “I’ve had judges set bail on fare beats,” sighs one lawyer at Schermerhorn. “It’s literally shit like this all day long.”

  And once you take one plea, you might lose all kinds of things. Financial aid for schooling is out if you have a joint-in-your-pocket case. Welfare payments, beds at homeless shelters, Section 8 housing—it all might go up in smoke the instant you look at a police officer the wrong way.

  This constant police pressure is more than a high-volume, high-cost tactical strategy to catch people up in more serious crimes, like holding guns or fleeing outstanding warrants. It’s heavy-duty politics. It puts an entire segment of the population constantly on the defensive, gives it a criminal record essentially in advance, puts everyone in the dragnet up front, so that one false move leads to real time.

  It’s a system that’s also set up to make consequences for nuisance arrests almost impossible, which emboldens police to ever-stupider behavior, which in turn leads to less respect for the law—an endless cycle of idiocy.

  I first met Andrew in December 2012. I was at Stoll, Glickman & Bellina, a law office in Brooklyn that deals with police abuse cases, toward what I thought was the end of a months-long tour of the New York City criminal court system. I’d originally called Andrew’s lawyer, Leo Glickman, regarding an unrelated story I kept hearing about in Brooklyn courtrooms, involving a rogue police precinct where the same small group of officers was routinely busting into homes, turning them upside down in search of drugs or guns, then threatening the occupants with arrest if they didn’t sign consent forms after the fact.

  There’d apparently been numerous lawsuits and settlements already involving these particular cops, and none of them had been dismissed from the job. More amazingly, it’d come out that at least a few of them had lied in court, and/or to grand juries, and yet they were still out there making arrests, and judges were still arraigning people based on their affidavits.

  The thing is, there’s generally no consequence for bad police behavior, even repeated or serially bad behavior. Even if individual officers are successfully sued, the only thing that happens is that the city’s corporation counsel pays out some cash, and life just goes on as before. An officer’s record of complaints or settlements isn’t listed publicly. A defense lawyer who wants to find out if the officer who arrested his client has ever, say, bounced an old lady’s head off a sidewalk or lied to a judge about witnessing a drug sale has to meet an extraordinary legal standard to get access to that info.

  In order to look at an officer’s record, you have to file what’s called a “Gissendanner motion,” the term referring to a 1979 case, People v. Gissendanner. In that case, a woman in the Rochester suburb of Irondequoit was busted in a sting cocaine sale by a pair of undercover police. The court in that case held that the defendant isn’t entitled to subpoena the records of arresting officers willy-nilly, but that you needed a “factual predicate” to look for records of, say, excessive force or entrapment. In other words, you already need to know what you’re looking for before you find it.

  What this all boils down to is, if you really feel like it, you can definitely sue the New York City Police Department. Since so much of what they do happens on the street, in front of witnesses, you might very well even win. But even if you win, there’s not necessarily any consequence. The corporation counsel’s office doesn’t call up senior police officials after lawsuits and say, “Hey, you’ve got to get rid of these three meatheads in the Seventy-Eighth Precinct we keep paying out settlements for.” In fact, when there are successful lawsuits, individual officers typically aren’t even informed of it.

  What makes this so luridly fascinating is that this system is the exact inverse of the no-jail, all-settlement system of justice that governs too-big-to-fail companies like HSBC. Big banks get caught committing crimes, at worst they pay a big fine. Instead of going to jail, a check gets written, and it comes out of the pockets of shareholders, not the individuals responsible.

  Here it’s the same thing. Police make bad arrests, a settlement comes out of the taxpayer’s pocket, but the officer himself never even hears about it. He doesn’t have to pay a dime. And life goes on as before.

  Thus if you’re a Tyquan Brehon or Andrew Brown, your sole option is to sue and squeeze some money out of the city. You can’t secure an officer’s dismissal, can’t get a policy change, and can’t get anyone brought up on charges.

  “Al
l they can do is get you a little money,” says Andrew. “But I don’t want money. I want to stop getting arrested.”

  Of course, it’s not like that on the other side of the tracks. Just the opposite, in fact.

  I was hanging out in misdemeanor court in Brooklyn one afternoon, chatting with a public defender, watching one street defendant after another get whacked with high bail. The lawyer sighed.

  “The problem is, all the judges live in Connecticut,” he said. “They don’t live in these neighborhoods. They don’t see these defendants as members of their communities. So sentencing and bail recommendations, all that shit becomes like a paint-by-numbers deal. They look at the chart, see what the guidelines say, and just spit out a number. Like in ten seconds. They could be selling livestock.”

  A few months later I was talking to a former federal prosecutor at an upscale café far from New York. The subject turned to sentencing. I told him the story about being in the grimy court in Brooklyn, listening to the public defender complaining about the judges all living in Connecticut.

  “Oh, Jesus, tell me about it,” he said. Then he told a story about a famous federal case that went sideways for exactly the opposite reason. The judge was from Connecticut, sure, but so was the defendant. Well, his billion-dollar company was, anyway.

  Way back in the fourth quarter of 2000 and the first quarter of 2001, the insurance giant AIG was looking at having to release poor financial results, which surely would have sent its stock into a tailspin. To cover up the mess, it engaged in some Enronesque accounting, reaching out to another company, General Reinsurance, a firm owned by Warren Buffett’s Berkshire Hathaway corporation. The two companies struck a pair of fraudulent reinsurance deals that hid losses on AIG’s books. The scheme cost AIG shareholders more than $600 million.*

  The case broke in the middle of the accounting-scandal era ushered in by Enron and WorldCom, and thanks to officials in the Bush Justice Department and New York state prosecutors like Eliot Spitzer, both AIG and Gen Re became major prosecutorial targets. The biggest fish of all in the case was Maurice “Hank” Greenberg, CEO of AIG. A judge eventually ruled that Greenberg had originated the scheme with a phone call to Gen Re CEO Ronald Ferguson on October 31, 2000.