Aspects of the trade that are viewed negatively by those who eschew it are actually sources of gratification, a form of nonmonetary compensation, for some of its practitioners. The physical danger is a thrill that makes the psychically numb feel alive. Violence against others can be an eloquent expression of otherwise inarticulable rage. That it is almost universally considered immoral for an individual to take by force another individual’s property is recognized by most criminals, but not dwelt upon. Immorality is another cost of doing business—sometimes a considerable cost, in terms of the toll it exacts on one’s relationship to God and man and one’s self—but a cost incurred only once. You cross the moral line with your first crime, and thenceforth are a criminal. The cost may be spread over years—amortized—but the actual investment of self is made in one lump.
Criminals, in any case, like baseball players, are not much given to introspection. I once asked a professional right-fielder what it was like to be a ballplayer, and he said, “I don’t know. I’ve never been anything else.” Most criminals could say the same thing.
(“Did you say anything to the police?” I asked a teen-ager arrested on his tenth petit larceny charge.
(“The cops asked me why I kept stealing,” he replied, “and I said it was like a habit.”)
If criminals are losers, misdemeanants are losers’ losers. A lawbreaker with any initiative at all will commit felonies, like burglary, robbery, or the sale of substantial quantities of valuable drugs—crimes that are worth years and years in prison. Misdemeanants steal sums rendered inconsequential by inflation, or possess barely enough drugs for themselves, or just bother people. Many don’t really commit crimes so much as stumble over the law. Helpless and hapless, they are easy arrests for the police.
In New York City, misdemeanors—crimes punishable by no more than one year in jail—are almost legal. The government, awash in serious crime, does not have the resources to try petty offenders, nor the jail space to lock them up. In Manhattan criminal court in 1980, 67,365 misdemeanor cases were filed, and 386 came to trial.1 The rest were disposed of by plea offers the defendants couldn’t refuse, or they were dismissed. Since, as third-year law students, we would represent only misdemeanor defendants, our job consisted almost entirely of plea bargaining.
Charles Pinckney was charged with public lewdness (exposing himself to a teen-aged girl) and assault (kicking her in the face), the crimes allegedly having occurred at the shelter for runaways where the two were residing. Since he had no local address, he was required to post bail to ensure his appearance at trial. Since he had no money, he might remain locked up for several months awaiting trial, unless he pled guilty to something first.
I clanked down the steel stairs to the holding pens beneath the courtroom. Before I reached the floor, I met the odor: ten men to a cell. I called out my client’s name. He walked up to the bars. I stuck my hand through and shook his. (Good move, I thought, shows you respect him.)
Charles Pinckney was nineteen, five foot five, 150 pounds, black, from Buffalo, unemployed. (Date of birth, height, weight, race, home address, occupation—these were the bureaucratically manageable characteristics by which defendants were known to the police, the courts, and me.) The bruises on his face resulted from the events surrounding his arrest, but his missing front tooth antedated it. There was a certain vagueness about him; he’d smile at odd times. He seemed removed from himself, and from everybody and everything, as though his life were a dream to him, not a good one, and unaccountable forces swept over him.
He admitted to me that he had kicked the girl, but denied exposing himself to her. In fact, he said, he kicked her because she went to the staff and falsely accused him of exposing himself, after they had argued over a cigarette.
Ten minutes after I met him we pled guilty to attempted assault. In exchange for the plea, the judge released him to await his sentencing, which would be in six weeks, to allow time for a pre-sentence investigation by the probation department, and promised that he’d get no more than thirty days in jail.
As I walked Pinckney across the street to the probation department for his pre-sentence interview, I urged him to return in six weeks, for not to do so would be another crime. It struck me that I sounded like a servant of the system, as I was urging his cooperation with it, so I reminded him that I worked for him.
“C’mon, you work for the judge,” he said.
“No, I work for you. Except you don’t have the money to pay me, so the government pays me.” (Actually, nobody paid me.)
As we crossed Lafayette Street, he asked, out of nowhere, “How do you know how I feel?”
“I don’t. All I know is what you tell me.”
We walked on in silence. Then, as we got on the elevator at 50 Lafayette, he said, “All you wealthy people…” and smiled, looked at the floor, shook his head.
“What about us wealthy people?” I asked. “We don’t know how it is?”
He laughed. “How’s it feel to have all that money?”
I thought of saying I didn’t have that much money. “It feels lucky,” I said.
Charles Pinckney did not show up for sentencing.
§1-04
I had been engaged in misdemeanor practice for a couple of months, when I looked at the people arriving at court one morning—the usual folks in vinyl coats, wearing knit caps although it was warm out (why do they wear those caps?)—and instead of feeling alive, involved in the elemental struggles of the world, I felt dragged down, depressed. The people all looked poor and worn-out. And the courthouse was poor and worn-out, too. And the whole city.
My client that day, accused of possession of marijuana, and a hypodermic needle, and a gravity knife, and of disorderly conduct, had not shown up. After waiting two hours, I wanted to have the case called so I could go back to school for my 11:30 class with Professor Norman Dorsen, the president of the American Civil Liberties Union. I wanted to sit in a soft leather chair in an elegant seminar room, under the wise and wealthy oil-paint eyes of prominent dead lawyers, and listen to a lecture on constitutional rights. But a Legal Aid lawyer whom I asked told me that one never gives up on a client’s coming until noon, or even after lunch, at 2:00. I waited until 11:40 before informing the clerk that I was “ready.” The case was called immediately, and a warrant was issued for my client’s arrest.
I had, of course, spent some time studying the facts and law of this fellow’s case. Although he had never met me, his failure to appear evinced a lack of confidence in my skill, and I resented it. I was also annoyed by his stupidity. We had grounds for a motion to suppress the evidence as the fruit of an illegal search, so there was a good chance that the government, rather than litigate the motion, would have settled for a plea to disorderly conduct. Instead, the jerk was a fugitive; the next time he was arrested—and there would be a next time—he would stay in jail.
Heading back to school, I squeezed onto a subway car and saw there were seats in the next car. I bravely walked, while the train was in motion, from one car to the next. My foot slid—shit! Shit on the floor of the IRT car. Under the knowing and sympathetic gazes of my fellow riders, I scraped my foot ineffectually, sat down in the stench, and rode in the stench the next ten minutes, my woolen suit absorbing the odor, I knew. The car was filthy, scarcely an inch not smeared with ugly, indecipherable graffiti, sprayed scars over seats, windows, maps, everything, the floor thick with dirt, the car thick with people breathing one another’s breath, and breathing dogshit, too, this time. I told myself the ride was an experience.
I knew better than to expect bright lights and tinsel when I signed up to work in criminal court. I was ready for the cases to be routine, for the clients to be uncooperative. I was ready for anything. But I wasn’t ready for nothing—clients not showing up, cases not being called, hours spent in courtrooms staring at the backs of lawyers whispering at the bench, with nothing for me to listen to but my stomach growling for lunch. It was getting hard to get up for the game.
§1-05
A winter afternoon at New York Criminal Court:
I bundled up and stepped outside into the ice-clawed wind, which street people call “the hawk.” I had reached the sidewalk in front of the courthouse when I saw a man fall on his face and stay there.
Another passer-by and I rushed to him. The other guy rolled him over on his back. He was white, about forty-five, unshaven, fat. Looked like he could have been a messenger. He had a bag full of papers, which a lady picked up—to make sure they weren’t stolen, she said.
He lay stiff, spread-eagled, heaving and drawing in hard breaths, which clicked through the blood in his nose. We figured he was having a fit. I put his yellow and brown knit cap, which had fallen off, under his head; thought I’d hold him still if he started rolling around; didn’t know what else to do. Then it occurred to me, “This is in front of criminal court; I’ll run in and get a cop; he’ll know what to do.” As I ran into the courthouse, I was thinking, “Here’s the big defense attorney, and when there’s trouble, he’s glad there are cops around.”
I rushed to the complaint room, where a dozen cops in plain clothes—all big stocky guys in lumberjack shirts—were sitting around on plastic chairs. “A man’s collapsed on the sidewalk,” I said. One languidly folded up the Daily News and started to get up. Another grunted, “Call nine-one-one.” The first settled back into his seat, reopened the paper, and resumed his reading.
“I thought this would be faster,” I said. I saw a phone on the desk in the front of the room and walked toward it.
“There’s pay phones in the hall,” the cop who’d told me to dial 911 said, just as I started to pick up the phone on the desk.
Amazed, I rushed to the pay phones. First phone—no tone. On the second phone, I dialed 911. A woman answered unintelligibly. I asked, “Is this nine-one-one?” She said yes. I said, “A man’s collapsed on the sidewalk in front of 100 Centre Street. He may be having a fit. Send an ambulance.”
I went back outside. The man was on his back, stone still, his eyes wide. He didn’t appear to be breathing. I looked at him—dirty, blood in his nose and mouth—and was thinking I didn’t really want to give him mouth-to-mouth resuscitation, when a stocky young court guard came running out, ripped open the man’s shirt, and started giving him cardiopulmonary resuscitation, hands crossed over the center of his pale, hairy chest: One-two-three-four-five. One-two-three-four-five.
The guard put a white handkerchief over the man’s mouth and nose; a light ring of saliva and blood spots came through it. He blew into the man’s mouth, then looked up and said, “He’s got fluid in his lungs.” He went back to massage. One-two-three-four-five. One-two-three-four-five.
A skinny street dude was saying, “He’s gone. If only these people knew what to do before. These people were standing around and no one knew what to do.”
As the guard pushed on his chest, the man’s hands and feet twitched. Otherwise, no motion.
A uniformed cop arrived. He picked up the man’s hand, opened the clenched fingers and let them go a couple of times. Each time the fingers sprang closed again. The cop examined the fingernails for some sign. He depressed the flesh of the thumb. The indentation remained.
An ambulance arrived from Beekman Downtown Hospital, one half mile away. Twenty minutes had passed. The ambulance men took out a litter and shoved the man into the back of the orange and white van. They drove away.
I knew then, and learned later, that the man was dead. I didn’t feel too upset, just thinking, “Well, this is city life.” But later I was quite shaken. It wasn’t so much the dying man’s blue-gray face, nor my own ineffectuality, nor even the failure of the cops in court to help. It was that one cop who started to get up and then sat down when the other said, “Call nine-one-one.” Peer-group pressure. Cops are like that.
§1-06
“That’s really disgusting,” Professor Henry Goldman said when I told him about the cops’ inaction. “That may actually be against the law.”
Every Tuesday night we met for an hour with Henry for the “Professional Responsibility” segment (one credit) of the clinical program.
“The law school comes upon a problem, it makes a course out of it,” he had explained at our first session. “It used to be ‘poverty,’ so we had ‘The Law and Poverty.’ Now, after Watergate, it’s ‘professional responsibility,’ so there’s a ‘Professional Responsibility’ course.”
(I couldn’t help thinking of crusty old Professor Herbert Peterfreund’s mockery of liberal-artsy courses: “People don’t seem to realize this is a professional school,” he told us in evidence class. “They think they’re still in college. I don’t understand it. They take courses like Botany and the Law, Women and the Law, The Law and the Law. They debate whether the common law exists on the moon.” He shook his bald head in wonderment. “You’ve got to learn the fundamentals!”)
The urbane but earnest Goldman hoped that as we sat around his denlike office, we would put some real effort into examining ethical questions, even though his course was ungraded. Despite, or because of, our enthusiastic consumption of the wine he provided, we actually did attain at least a rudimentary level of self-awareness, undoubtedly a precondition for moral consciousness, a state of mind for which lawyers are not known.
“The American Bar Association’s Code of Professional Responsibility is not a particularly useful guide for conduct,” Henry said at the outset. “Most of the concern in the Code has to do with billing practices. My concerns are lawyer-client, lawyer-system, and lawyer-society relationships. And the answers lie within each person, as to what he thinks is right and what’s not right. It comes down to how you feel…. The materials for this course are you.”
We had begun by discussing our reasons for wanting to go into criminal defense work. “To help people,” one woman suggested. I countered that if we really wanted to help people, wouldn’t we go into welfare rights or mental patients’ rights or tenants’ rights or something? I proposed vicarious criminality as our prime mover. Other suggestions included the cineromantic thrill of being involved with cops and robbers; the challenge of pitting your wits against the massed forces of the state; the saintly feeling of standing with the reviled and friendless; the intensity of dealing with people in crisis; and the necessity of defending liberty by making the state prove its case before putting anyone (THIS MEANS YOU) in prison.
I might have added that my father was a successful small-town lawyer. (Of course, he became a lawyer back in the days when one said “doctors and lawyers” in the same breath, before lawyers had permeated society and become common—nothing recedes like success.*) So, for me, becoming a lawyer was always something to be done or not done, something to be considered.
I had no interest in, or talent for—which is much the same thing—fighting for IBM to get the billion instead of Xerox. Nor did I particularly want to devote myself to winning the money or children for one spouse rather than the other; or ensuring that the bin of bolts was delivered at the agreed-upon price; or preserving the estate of the rich departed from the designs of the tax man. I suppose I could have gotten into avenging accident victims—and oh, that money!—but only criminal law offered the chance to visit the underworld, know intimately the secrets of life invoked by that magic three-word incantation, sex-and-violence … and return to tell about it. For reasons psychological, political, or both, being a prosecutor did not appeal to me, so criminal defense was the only way to go.
As the weeks passed, we moved from such general considerations to specific situations as they arose.
“I have a real ethical problem for us,” a student began, on this particular December night. In addition to handling misdemeanor cases, we assisted our instructors in representing felony defendants. This student had been helping Clint Levine defend a Mr. McDaniel, who was a co-defendant with a Mr. Ries in a liquor store robbery. The prosecution had a very strong case against Ries, but practically no evidence against McDaniel. If Ries pled guilty
, McDaniel would be tried alone and have a good chance of beating the rap. But Ries insisted on going to trial; he and McDaniel were going to be tried together, and McDaniel would likely be found guilty by association.
Suddenly Ries comes into court beaten to a pulp and says he’s changed his mind; he wants to plead guilty. And Clint knows that McDaniel beat Ries up. Question: Should Clint tell the judge?
Henry dusted off the Code of Professional Responsibility.
One section said that a lawyer must not reveal anything his client tells him in confidence (which is how Clint learned that McDaniel beat up Ries*). But another section said that a lawyer must inform the court if he knows of a fraud about to be perpetrated upon it.
“Does it say which section supersedes which?” I asked.
“No, it just leaves both hanging out there,” Henry replied.
A discussion ensued. “No, no, you don’t reveal what your client’s told you,” one student insisted.
“But what if, for instance, your client told you he had tampered with the jury?” Henry wanted to know.
“Now, there, I would tell,” I said, “because my duty to my client does not include becoming a criminal; and who could go through the charade of dramatically summing up before a jury he knows his client has bought?”
Henry discovered he’d been reading from the 1970 Code of Professional Responsibility. Checking the 1977 Code, he found that lawyer-client confidentiality takes precedence over the duty to reveal fraud, or so it seemed, according to his best efforts at statutory construction. The relative weight and meaning of everything depends on the order of presentation and whether or not paragraphs are indented.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 2
