§1-09
The other felony on which I was working for Levine was the Case of the Hasidic Armed Robbers.
One Sunday afternoon a Hasidic camera importer was visited in his lower Broadway office by two young men in Hasidic garb, who asked in Yiddish for charity, then whipped sawed-off shotguns out from under their black coats and relieved him of a brown paper bag containing $10,000 in cash, he said. Two days later, at a delicatessen in Brooklyn, he thought he recognized one of the robbers. That suspect, a twenty-year-old hulking teddy bear of a man, named Izzy, was arrested and became our client. His best friend was also charged.
Working as Clint’s investigator, I traipsed around lower Broadway, the Forty-seventh Street diamond district, and the Williamsburg section of Brooklyn, trying to sort out the connections between the victim, the suspects, the Hasidic vigilante organization, and other parties, interested and disinterested, all of whom seemed to be cousins, in-laws, or both. Our theory was that Izzy and his friend were being scapegoated because of their reputation in the Hasidic community as rebels who behaved outrageously, going to movies and driving around in cars.
I learned the true meaning of the word “cold” that January, hanging around outside Williamsburg’s Roberto Clemente housing project, where the East River served as strop for the razor wind, waiting for midnight and the return of my “sources” from worship.
Izzy was a volunteer auxiliary policeman and liked to think he was a good friend of a couple of real cops, Officer Dick Rodriguez and his partner, Officer Joseph Lear.
I went out to the 90th Precinct one night to interview Lear and Rodriguez about whether they could be character witnesses and testify about Izzy’s reputation for truth and veracity, and for peacefulness. We walked across the street to a fast-food chicken place, where we sat talking over tepid cups of vile coffee.
Lear and Rodriguez were both, basically, assholes. They were cool, and very concerned with being cool, and they’d put on sort of black, or “street,” accents, and they tried to act tough. I suppose they were tough. Rodriguez sported a bouffant of hot-combed black hair. He wore a diamond pinkie ring on his left hand, and on the fourth finger of his right, an enormous gold ring set with about thirty tiny diamonds. Lear’s hair was prematurely gray, and his teeth stood out like those of a skeleton. They both had enormous bellies hanging over their black leather garrison belts.
“Izzy couldn’t have done it,” Lear said. “One—he’s honest and upstanding; two—he hasn’t got the balls.”
Rodriguez, commenting on my necktie, which had a scales-of-justice motif, launched into a little rap about the court system which would decide Izzy’s fate. It was his habit to launch into little raps about himself, and about what he’s like, and about how he does things, and what he knows, and what the Hasidic community is really like, and what cops are really like, and what the courts are really like, what everything is really like.
What he said about the courts was, “It’s a game. It’s a game they play with your ass.”
“It’s chess,” Lear interjected, “and you’re the pawn.”
Rodriguez explained that truth has nothing to do with the outcome of the trial; that there are a lot of innocent people in jail; that all that counts is how you play the game, whether you can win.
Rodriguez said that all the other cops hated Lear and himself, and, by association, didn’t like Izzy too much. The reason they hated him and Lear was that they had put “bad cops” in jail and were considered rats. “So either we’re good guys who put bad guys in jail, or we’re bad guys because we put cops in jail. It depends on how you look at it. What do you think?” Rodriguez asked me.
I surprised myself by saying, “I don’t think anybody’s a bad guy or a good guy. I don’t think of people as bad guys or good guys.” I said this coolly, expressionlessly, as though to say, “I’ve been around. I don’t think that way anymore.”
Afterward I thought, “What’s become of me? I’m changing faster than I realized. I am in that game he referred to. I’m in it to win. It’s a matter of indifference to me whether my client’s guilty or not.” I had thought that was because I was committed to the adversary system, and to doing my job well; but that night I was beginning to think maybe I’d become amoral.
Upon reflection I decided I was just trying to sound cool to the cop, trying to go along with his rap.
A year later, after I had graduated from law school and moved away, I heard that Izzy and his co-defendant were acquitted, Clint Levine having successfully mounted a defense of misidentification.
I remembered what Izzy’s father had said. I was having a glass of coffee at Izzy’s family’s small walk-up apartment one night during my winter of investigation, when his father came in, stomping the snow from his galoshes. He extended a great, meaty hand to shake mine. He was a watch repairman, and I wondered how he did that fine work with such big hands. His black overcoat and black lamb’s wool hat framed a face as translucently white as paper. Izzy’s father had a pot belly, big ears, and a big nose, but he was an exceptionally handsome man, owing to the strength and harmony of his features, the clarity of his eyes, the calmness of his bearing. He was a concentration camp survivor.
“If you could find out what the true story is,” Izzy’s father said to me, after my role had been explained, “I would give you such a good present.”
“We’ll probably never find out what the true story is,” I replied, “but I do think that we can get Izzy acquitted—that’s the main thing.”
“Not for me,” the old man said. “For me the main thing is to find out what the true story is.”
§1-10
As for the rest of law school, other than the clinic, there really isn’t much to say. School is school. You sit in chairs that are attached to the floor. You write down what the teacher says (or borrow the notes of someone who did). When the time comes, you memorize it and spit it back out.
Law school classrooms are perhaps a bit more arid than those devoted to other disciplines. In three years of discussions, I can’t recall any mention of a feeling. But that figures, law being the utterly abstract, ineffable, absolute rationality which is at once the object sought and the method of seeking.
Law school is not, contrary to the mystification heaped around it by people who have done time there, difficult. Boring would be a better word, but not tremendously or profoundly boring, just boring in the ordinary, everyday sense, which leaves room for the occasional peak of interest by which the broad valleys of torpor are defined.
Those big books you see law students carrying around, which contain the greatest hits of centuries of appellate decisions from throughout the English-speaking world, read like a meticulously kept journal of human experience, written by a diarist whose only interest was trouble. Everything happens. People shoot at A and hit B. They shoot people simultaneously being shot by other people. They shoot people who are already dead. People get drunk on purpose and do things by accident. They get drunk by accident and do things on purpose. Doctors butcher their patients. Butchers doctor their meat. Cars blow up, planes fall down, ships sink. Mice fall into soda bottles, children into wells. God acts.
No one seems to suffer in all these tales of woe, the pain having disappeared with the people who felt it. One gets the impression that human life is like nothing so much as an unending Saturday morning cartoon—woops! pow! oof!
The law student has to complete a certain number of tasks—the foremost being to look both ways, and stay alive for three years—and then he is through. Sometimes law school reminded me of one of those “strategy” games. The directions are in simple, straightforward English—3,700 pages of it. Anyone can play. But you have to want to.
In the process, through exposure and repetition, you do learn some things, primarily lingo. One day, in the midst of an afternoon of intense study of New York procedure, for my last exam of my last year, I was standing in the basement of NYU’s Bobst Library, at a pay phone, when I overheard a fellow talk
ing at the pay phone beside me.
The guy was apparently trying to get permission to use a university theater to shoot a film scene in. He said, “It’s been allowed before.”
Precedent, I thought.
He said, “I see, so if it’s okay with Mr. Hughes, it’s okay with Mrs. Costello.”
Agency relationship, I thought.
He said, “I’m an NYU student.”
Entitlement of status, membership in a class, I thought.
I was perceiving things as a lawyer, things which everybody perceives anyway, but which they are perhaps not so aware of, because they don’t have names for the concepts.
I recall a Professor Greenberger, in first-year contracts, saying that our society’s concept of justice is exactly what any three-year-old thinks justice is: the most sophisticated of litigants just wants to be treated the same as everybody else.
It was also Professor Greenberger who said, “Justice? What do I know about justice? I’m talking about the law.”
He was joking.
§1-11
Everything I had done in law school, and, in retrospect, much of what I had done before, was done with a view to landing a job as a public defender—an attorney paid by the government to represent criminal defendants who can’t afford their own lawyers. I’d been a counselor in a group home for juvenile delinquents; I’d worked as an investigator and law clerk for a Legal Aid attorney; I’d immersed myself in the criminal clinic. A public defender was all I wanted to be.
It is one of the great glories of our nation that we recognize the right of every defendant to be represented by counsel, and that the government provides an attorney for every defendant who cannot afford one, even though we know that the defense of their rights will result in some of the guilty going free. We mean to protect the rights not only of the wrongly accused but of the guilty themselves. That’s the nature of rights—you don’t have to earn them or deserve them; you have them. Although fundamental rights can never be taken away—they are “inalienable”—governments, more often than not, refuse to recognize them, and violate them. This propensity of governments must be guarded against. If the rights of the least deserving and most detested individual are not held inviolable, then no one’s are, because in that case rights are being treated as privileges. Unlike rights, privileges are given, and can be withdrawn.
I had to make a living. How better than by defending our rights?
I was hired by the Public Defender Service for the District of Columbia, which was established by Congress in 1970 to represent indigent criminal defendants (and juvenile offenders) in the city of Washington.
My girlfriend Jan Drews and I got married and drove over the George Washington Bridge to start a new life in America.
§1-12
There remained the matter of the bar exam.
After three years of law school, you are more or less prepared to begin to prepare for the ritual hazing known as the bar exam, for which you have to know all the law you ever (or never) knew, all at the same time.
Fortunately, several commercial outfits have acquired a certain familiarity with each state’s examinations, which they will convey to you in the form of lectures and outlines for a couple of hundred bucks. All you have to do is memorize.
I spent six full weeks of my life memorizing, and only memorizing. In an odd way, it was an almost pleasant experience, like eating endlessly without ever getting full. I spent day after day putting things in, and putting things in, and putting things into my head. No one disturbed me, no one asked anything of me, because everyone knew I was studying for the bar. My life was sublimely peaceful, my self was entirely centered, I had but one thing to do: memorize. Jan observed that she had never seen me happier.
I went into the exam armed with a technique suggested by the late Professor Stuart Stiller in one of the bar review lectures I’d seen on videotape. He said that you couldn’t and wouldn’t know everything, and when confronted with a question about the rule against perpetuities, or bills of lading, or any other area of the law that you didn’t know and didn’t want to know, you should simply say “Kiss my ass” and proceed to the next question. I endured two days in a hot, crowded room, saying “Kiss my ass” as necessary, and the bar exam was behind me.
§2-01
I reported for work along with thirteen other novices at the Public Defender Service for the District of Columbia the autumn after my graduation. That seven of us were female, two black, and one Mexican-American, was the result of an effort to change the composition of the office, whose other forty lawyers were predominantly young white men.* Through no fault of mine, we did little to alleviate the disproportionate representation of brilliant law review editors and judges’ clerks (two from the U.S. Supreme Court, in 1981) who were drawn to P.D.S. by its reputation for idealism and high professional standards, and the opportunity it afforded to gain litigation experience. At a firm you start in the library; at most prosecutors’ offices you work on parts of cases, assembly-line style. At P.D.S. you handled your own cases, from soup to nuts.
(P.D.S. was also one of the few places where you could do good and do well at the same time. We got $19,300 a year to start, better than half what you’d get paid to die slowly, writing memos as an associate at Pig and Swine on Wall Street. Several hundred applicants had vied for our jobs.)
The Public Defender Service was located in the former Superior Courthouse, an ionic porticoed temple to the Dignity of the Law, which had recently been succeeded by a poured concrete monument to the Efficiency of the Law, one myth giving way to another as times changed. We were on the first floor, which in a more candid age was called the basement. It was a basement steeped in history, however. Our offices used to be cells for nineteenth-century prisoners, not a few of whom were hanged on our lovely front lawn, now graced by a touchingly small and awkward statue of Abraham Lincoln—the oldest in America—erected by the local citizenry soon after his death and placed at our building because it was there that he signed the Emancipation Proclamation. The statue’s pedestal now bore an extra inscription: “Nana Premptu Is Coming.”
It was easy to recognize the new people, who were all dressed to the nines, ready to walk six blocks up the hill and argue in front of the Supremes at a moment’s notice, whereas the experienced attorneys favored dungarees out of court. We met in the “meeting room,” an industrial-carpeted warren decorated with stacked-up Xerox paper and a legless pink sofa that must have been discarded by some fraternity.
We were greeted by Taylor Harrison, who in his full beard and long hair looked like nothing so much as a Hell’s Angel, but was in fact one of the most experienced P.D.S. attorneys.
“The notion offends lay people that a defendant is caught with his pants down stuffing a baby down the Disposall, and we defend him, and consider it our duty to defend him, and in fact enjoy it,” Harrison said, kicking off two and a half days of lectures on legal ethics.
There is no stronger example of the power of an adjective to modify a noun than the use of the word legal before the word ethics. The primary requirement of legal ethics is loyalty to the client: “The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law…. While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law” (A.B.A., Code of Professional Responsibility, Ethical Considerations 7-1, 7-3).*
This duty gives rise to ethical demands that are practically the inverse of what is commonly understood to be ethical. If the truth is that his client committed the crime, the defense attorney’s job is to keep the truth from coming out, or to keep the jury from recognizing it if it does. It is unethical to hold back any effort, to do the job with less than all one’s “zeal.” The lawyer who refuses to represent a child-molester for “ethical reasons” does so not because he cannot in good conscience try to get the guy off, but because he cannot in good conscience not try to get the guy off.
I a
sked the director of P.D.S. why we were spending so much time on ethics. “Is this a post-Watergate concern?”
“No,” he said. “It’s because judges like to attack your ‘ethics’ when you’re pushing hard to give your client a vigorous defense. If you’re well-schooled in legal ethics, you know where you stand, and you can resist intimidation.”
After the director left the room, another attorney gave a revisionist view: “His concern is to make a record, so he can always say, ‘We train all of our attorneys to be ethical.’”
Reasonable minds can differ about what is ethical. What is meant by “resolve in favor of his client doubts as to the bounds of the law”? If you were in trouble, what would you want your lawyer to do to get you out of it? Anything? Everything? Anything and everything? Many practitioners find guidance in a venerable maxim of the profession: “If someone goes to jail after the trial, make sure it’s your client and not you.”
“If you can give the impression that you know what you’re doing,” one attorney said, “then the best way is to do things improperly—go ahead and read aloud from inadmissible documents, wave your photos around in front of the jury. If you sound like you know what you’re talking about, the judge will defer to you. Or, if you get caught at it, you can drift back into doing things right.”
There were murmurs from the novices that such conduct would be something less than professional.
“I’d be all in favor of playing by the rules if I started out with the same number of cards as the government,” the attorney continued, “but usually they’ve got fifty cards, and I’ve got two. We each play two cards, then where am I? You can put on a defense that will win the praise of the judge, or you can put on a defense that will win the trial.”
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 4
