INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (27 page)

      
“Fuck you, you nasty bitch.”

      
I don’t know whether the judge tried to hold her in contempt right then or whether the courtroom was silent for a second as, perhaps realizing what she’d just done, or perhaps having second thoughts about having done it, she turned away from the judge, away from her client, and away from the defense table and sprinted toward the exit. What I did hear, though, is that she ran. And when the shocked court officers grabbed her, trying to figure out what to do, she struggled, and that --far more than disrupting the court or even calling the judge a bitch --was (at least in the bizarre world of the Bronx) unforgivable. She was arrested and charged with criminal contempt and resisting arrest. Within hours, news of the incident had spread like wildfire throughout the courthouse.

      
I’ve often wondered what I’ll do when (not if) the time comes that I reach that moment --that day when I’ve finally been pushed too far. I know how it feels to be there. It’s what I felt the morning I turned my back on Blog --the moment when I was willing to feel the steel, willing to surrender my law license, willing to face any consequence and every imaginable sanction rather than one more second of the horror of criminal practice. I’d like to think my
fuck you
would be only the tiniest taste of the obscenity-laden vitriol I’d empty over the judge, the prosecutors, and the courtroom. I’d like to think that I’d begin a disquisition for the ages --a raging soliloquy, part Martin Luther King, part Mamet, about a foul, disrespectful, unfair system. In my imagination, I’d like to think that while being marched out of the courtroom, hands cuffed behind my back, I’d be walking proudly, still emphasizing the judge’s moronic heartlessness, astonishing callousness, pathetic jurisprudential shortcomings, amoeba-like intelligence, and so on.

      
I never faulted this woman for saying what she said. Like most defense lawyers, I looked at her and thought,
there but for the grace of God go I
. What I fault her for is running.

      
The case against her never even made it to court. Instead she was reassigned to a different borough, a traditional solution for lawyers who have, even briefly, gone a little nuts. Still, hardly a week goes by that I don’t sit in AP-10 and wonder about her story. I wonder whether doing what she did made her feel better, whether even a briefly tarnished reputation justified the outburst, whether in the dark night of her soul she holds up that crystalline moment in time and thinks:
There --the one time I finally said what I believed
.

      
Dreads has hardly made it to the door when the bridge officer looks my way. “Mr. Feige,” she murmurs, her way of letting me know that Hector’s case is up next.

      
Hector’s case is done with in thirty seconds. “Are the people ready for trial?” Kiesel asks.

      
“No, Judge,” some random assistant district attorney says. “No complaining witness contact.”

      
“Fine,” says the judge. “What date, please?”

      
I provide a date another six weeks in the future --a day when I’m already scheduled to be in the part.

      
“Fine,” Kiesel says again, adjourning the case.

      
“See you then,” I mutter to the prosecutor as I scribble the new date on a little blue slip of paper so that Hector won’t forget. I’m turning toward the door when I hear Kiesel: “Are we ready on that other case?” she asks one of the court officers.

      
“Yes, Judge, he’s in the back now,” the burly officer says.

      
Glancing back, I can see that Kiesel has that sour look again. “Let’s bring him out,” she says.

      
“Okay, Judge,” says the officer, and then, turning to the audience, he declares, “Everyone take seats please.” Turning to me, he clarifies, “That means you, Counselor.”

      
“I’m just leaving,” I tell him, heading for the back of the courtroom, where another officer has blocked the door. Realizing I won’t be leaving just yet, I sit down on a bench toward the back to watch what happens next.

      
A little man is brought in wearing handcuffs and leg irons. He is surrounded by five buff court officers. They are wearing blue riot helmets, with plastic face guards, thick leather gloves, vests, and jackets marked “New York Court Officer.”

      
“What the hell?” I ask, turning to the officer in the back whom I know vaguely.

      
“Tried to bite a CO,” he tells me, sternly using a shorthand that could suggest either a court officer or corrections officer.

      
The man is small, and he winces every time an officer moves his arm. It’s clear he has been beaten. His lawyer speaks briefly, and the case is adjourned. The court officers --one in front, three at the side, and one at the rear --march him quickly back into corrections.

      
Finally free to leave, I head around the corner to use the judge’s elevator. Behind a nearby steel door, the little man is being beaten. I distinctly hear the thudding noise his body makes as it is kicked. His cries are horrible and plaintive. The door rumbles with the impact. A kid in a black hoodie sitting on the bench just outside the courtroom catches my eye as I pass and shakes his head knowingly. “Take my advice, brother,” he says somberly, “stay single, pay for pussy.”

      
With all the pounding going on, I’m glad when the elevator finally arrives. I step in with an ADA named Anna Almarante right behind me.

      
Even in a massive court system like New York, prosecutors and public defenders inevitably get to know one another pretty well. Eventually everyone will face the same adversaries, so reputation becomes critically important. Under these conditions, it’s good to know how to charm the opposition. Eric, a young lawyer frustrated with not managing to “connect” with a few of the assistant district attorneys, once pioneered “the elbow touch” to see whether physical intimacy might get his clients better offers.

      
It did.

      
I don’t much go for physical intimacy with prosecutors. It’s against my religion to sleep with them. But the fact that I despise them and what they stand for doesn’t mean I’m not occasionally tempted. Anna Almarante is one of the few that tempts me. Big, swaggering, and busty, Anna has a way of standing in the courtroom that always does me in --her weight on one leg, opposite hip jutted out defiantly, her head sliding around like a bobble-head doll. No one else makes quite the same production out of a simple court appearance. “Ya Honor!” she declares, one hand up in the air, palm out, like a diva stopping traffic. “The People’s offer is thirty days’ jail! He beat huh!” Although there might be fifty identical cases on the calendar that day, Anna always acts as if the facts of her case are somehow terrifyingly new or unusually alarming. Her antics make even fellow prosecutors smile with amusement.

      
“Hi, Feige,” she says, pressing the button for the main floor.

      
She has an unusually pouty look today, the thick waves of her black hair obscuring part of her profile.

      
“What’s the matter, Anna?” I ask, shifting my weight slightly and leaning toward her just a bit.

      
“I don’t know . . . ,” she trails off. “I was just thinking.”

      
“What about, babe?” I ask. I can’t take my eyes off of her.

      
“I was thinking about hell,” she says.

      
The elevator doors open, and a court officer gets out. It is just the two of us now.

      
“Huh? Why were you thinking about hell?” I ask her.

      
She isn’t smiling. She is serious. I find the whole idea utterly titillating.

      
“I think about hell all the time,” she tells me earnestly. “Don’t you?”

      
“Ah, no. I don’t ever really think about hell at all, Anna,” I say.

      
“You don’t?” This is veering quickly from the flirtatious to the bizarre.

      
“Anna,” I say, smiling, “I’m a Jew.”

      
There is a sharp intake of breath.

      
“You’re a Jew?” she asks, incredulous.

      
“Yeah,” I say, a bit taken aback, “couldn’t you tell? Big nose . . . loud . . . Feige. I’m very much a Jew, Anna.”

      
She is still looking perplexed. There is a momentary silence.

      
“You’re a Jew?” she repeats. “So does that mean, like, that you don’t take Jesus Christ as your personal savior?” she asks, seeming more genuine in her curiosity than I think possible.

      
“Yeah, Anna, that’s the whole Jew thing right there: Jesus, definitely not my personal savior.”

      
Another gasp.

      
Her coal-black eyes are locked with mine; her breasts are inches from my chest. I can smell her hair as she shakes her head and bites her bottom lip in consternation. The elevator lurches to a stop on the main floor. The doors slide open.

      
“You’re going to hell,” she says. The People’s offer: eternity.

      
That, I think, is the kind of sentence Kiesel might like.

T w e l v e

3:12 P.M.

      
As I step away from Anna and the elevator, my brain still reeling from the potent combination of her voluptuousness and condemnation, I realize that I have been so preoccupied with Reginald, Clarence, and Cassandra that I have given exactly no thought to Jaron all day.

      
Jaron is charged with stabbing his cousin. The prosecutors believe that they have an airtight case, but what they don’t know is that tucked in my thin little case file is a packet of papers that makes it pretty clear that Jaron may not be guilty. And while “pretty clear” and “may not” may prove insufficient to get a dismissal, they could, depending on the judge, be enough to get him out of jail today.

      
When DAs go to court in New York City, more than thirty thousand cops, with their dogs, guns, surveillance technology, and remote-controlled robots, back them up. When ADAs need something from the streets, they can call upon that well-paid army of armed men to knock on doors, serve their subpoenas, and track down their witnesses. Public defenders, on the other hand, are lucky if they have a college intern or an overworked recent university graduate to help. Yet despite this disparity in resources, I’ve won more cases over the years through good investigation than through motions and trials combined.

      
Investigators are the eyes and ears of overworked defense lawyers. Generally speaking, they’re the ones who find the witnesses, who persuade them to talk, and who know, before anyone else, whether a case is rock solid or utterly flimsy. Good investigators can find anyone and talk their way into any place, and really good investigators unfailingly know when to get a written statement, locking an otherwise hostile witness into a particular version of events, and when to lie low, build trust, and come back another day. A good investigation, more than anything else in a criminal case, can be the difference between prison and dismissal.

      
One of the benefits of being the trial chief is that I have some latitude in choosing who works on my cases, and though I’ve had some very good investigators over the years, Ben Wolf, whom I rely on more than anyone else, has been by far the best. Tall and awkward, with a goofy smile and a stuttering, lugubrious Missouri manner, Ben was the kind of white kid that I hesitated to turn loose in the South Bronx. When he showed up for his first day at the Bronx Defenders, wide-eyed and fresh from college (in a hand-me-down suit of his father’s), he’d spent a total of three days in the Bronx and just a few weeks in New York City.

      
“Knock, knock.”

      
We were doing simulations as part of an investigator training I had patterned on Eddie Mayr’s Friday-afternoon abuse sessions. I played a reluctant witness. Ben was behind the door, taking his very first crack at getting inside.

      
“Whatcho want?” I said, opening the door just a bit and channeling a witness I once met.

      
“Ahhh, um, I’m h-here to talk to you about a shooting?” Ben, stuttering, didn’t sound too sure of himself.

      
“I ain’t talkin’ to you about no shooting!” I said, starting to close the door on him.

      
“Wait,” Ben said urgently, putting his foot in the door. He didn’t want to be humiliated in front of the other new investigators looking on.

      
“I ain’t talkin’ to nobody about nothing!” I exclaimed through the sliver that remained.

      
“But . . .” Ben put just the slightest pressure on the door, trying to keep it open.

      
“What choo doing?” I said loudly, pushing back on the door. “Don’t you try to come pushin’ in MY HOUSE! I know my rights! Get the hell out of my house! GIT OUT! NOW!” I slammed the door in his face.

      
The other investigators looked on horrified as Ben sheepishly poked his head back into the room.

      
“I guess that didn’t go too well, huh?”

      
“Ah, no,” I chided. “Never, never block the door. It’ll always get you in trouble.”

      
With the awful timing, terrible judgment, and utter lack of convincing confidence, I feared that Ben was heading straight for uselessness. But within a year, Ben was wowing almost everyone he worked for, once turning in a handwritten witness statement that ran to an incredible forty-two pages, as opposed to the usual six to eight. The case involved terrible allegations --child sex abuse and assault --and our client, the victims’ father (who was in jail), insisted that the kids’ mother put them up to fabricating the charges. “She’s crazy, and she only made this up when I tried to get the kids away from her,” he claimed over and over.

      
“She made them say it” is the kind of defense we hear all the time in child sex abuse cases, and we rarely put too much stock in it --not because it isn’t true (it often is) but because we hear it constantly. Still, a good defense required that we investigate our client’s claims, and so Ben tracked down the mother and got her statement.

      
Mom was very clear: our client was a bad man, an evil man, and a child abuser. It all began, she explained, when he smashed her head against a wall and left her for dead, beginning what she described as her “zombie period.” The zombie period consisted of eight months spent lying comatose on a heap of dirty clothes inside a small closet while our client and his new girlfriend lived in the house. The girlfriend (who was, according to the mother, a Satan worshipper and child rapist) forbade the children to tend to their comatose mother. Despite this admonition, she told Ben, her heroic children would fish scraps of food out of the garbage to nourish her as she lay unmoving on the fetid clothes heap in the closet.

      
One day, at the end of the eight-month coma, Mom had a dream in which God, a white man, came to her and said that it wasn’t her time to die. With that she woke up from her coma with no recollection of who she was, where she was, or how to speak English. The children, she explained, gradually helped her to remember who she was, while
Sesame Street
helped her learn English again.

      
Shortly after waking and while relearning English, Mom was told by one of the kids that while she was in her zombie period, our client had sexually abused the children. The abuse occurred in a “haunted house,” where our client and his Satanist girlfriend injected all three children with a yellow liquid called “get sexy” and a blue liquid called “be cool” and then sexually assaulted them.

      
Mom took the children to the police.

      
The police took the children away.

      
Shortly after getting the statement from zombie mom, Ben talked to the kids.

      
“Did you remember what your daddy did to you the day after it happened?” Ben asked one of them gently.

      
“No,” said one of the kids.

      
“How about the day after that?” Ben tried again.

      
“No.”

      
“The week after that?”

      
“No.”

      
“Well, when did you first remember what happened?”

      
“Oh,” said the child brightly, “after I talked to Mommy.”

      
The jury acquitted. Our client had spent nearly eighteen months in jail waiting for his trial. As it turns out, the client was right. But without Ben, we might not have known any of it and certainly wouldn’t have had the statement to use at trial.

      
Not everyone was pleased with the verdict, of course. Back in her small South Bronx apartment, zombie mom still tells people our client is guilty, and she still has the withered rose she says our client (using voodoo) made with her head.

- - - -
 

      
Child sex abuse cases are some of the scariest to defend. Many of the cases allege acts that leave no physical evidence. As a result they are often swearing contests between kids and grownups, who seldom have a compelling explanation for why a child would make up a story like the one he or she is telling. Between malleable child witnesses and terrified adults, it often feels as if the facts in a child sex case have been reflected in a funhouse mirror of psychic distortion and familial weirdness.

      
Between zealous prosecutors, lengthy sentences, horrific conditions of confinement, and costly collateral consequences, a child sex abuse charge is pretty much a life-ending proposition. Moreover, given the overwhelming stigma attached to child sex abuse allegations, even the clients who should take pleas that might mitigate the damage will often utterly refuse to do so.

      
Fearlessness and relentlessness are probably the two most important skills an investigator can bring to the job. No matter how good investigators are, they are going to be spending almost all of their time finding people who don’t want to be found and talking to people who don’t want to talk. This takes more than a good smile, and it takes more than dedication. It requires a willingness to walk into crack houses and crime scenes and knock on every door in sight, day after day, until you have found and spoken to every single person in the building.

      
After Ben’s stellar work on the sex abuse case, I pretty much use him for everything --gang shootings, one-witness robberies, and almost every murder I have. He’s matured into the kind of investigator who can find almost anyone and get them to talk. Sometimes he is ushered inside by people who are terrified that if this goofy-looking white kid spends another minute in the projects he’ll be shot. Other times, people invite Ben in because he’s charming. Still others talk because he is utterly relentless --showing up at their jobs, tailing them when they leave for work, knocking on the door after supper, or waiting for them by the bus stop when it is time to pick up the kids.

      
It was Ben who got the dirt on the kid who was probably guilty of the crime Clarence was being charged with, and it was Ben who routinely tracked down cool forensic experts for me. Ben rejuvenated my stagnant subpoena practice (he thought of places to subpoena I’d never even heard of), and in Reginald’s case, Ben was the one who actually found a guy’s shoe size so that we could determine whether or not our guy was the one who left the bloody shoe print in a crime scene photo. My faith in Ben’s abilities was such that when I got a case that needed investigation, I’d pretty much just shoot him an e-mail, leave the file on my desk, and sit back for a week while he worked his magic.

      
Sadly, Ben was out of town when Jaron needed help.

      
There were three people in the room when Jaron stabbed his cousin. One had a knife, one a stab wound, and the third had a clear view of exactly what happened.

      
Aunt Gloria was having a nice family gathering when the stabbing started. With eyes aged by drink and a smile burnished by a bright gold tooth right in the front of her mouth, Gloria played den mother to Jaron’s extended family. She had equal affection for Jaron and his cousin, and no reason to cover for either.

      
So did Gloria watch as Jaron tried to murder his cousin, as the state claimed, or did Jaron mistakenly stab his cousin while trying to disarm him? Someone had to talk to Gloria, and with Ben out of town and the office short on backup, that someone was going to be me.

      
It was around 7:30 in the evening when I got to the projects where Gloria lived. The sun had long since set, and though it wasn’t my usual practice, I’d decided to go poke around alone. Generally, an attorney who takes a statement can’t also be defending the case, since if the authenticity of the statement is challenged, the attorney also becomes a witness. But with no one around, I did what needed to be done. What the hell, I figured --if something great happened, I’d grab a colleague for the trial.