INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (31 page)

      
“I thought I could get away with it?” muttered another.

      
“I didn’t know he was a cop,” said a drug peddler.

      
Since Rivera never seemed to reject a plea for an insufficiently insightful answer, the transcripts of his cases were monuments to the stupidity of his insistent need for explanation.

      
With Rivera being the trial judge and Omar insisting on a trial, it was critical that I get more from Omar than “they’re making the whole thing up.”

      
“So, Omar,” I continued, “I’m feeling like you don’t trust me, and I’m thinking that maybe you’d be better off with a different lawyer. I want to defend you. I believe in you, and I believe what you’re telling me. But I cannot go to trial in a drug case where there is buy money and stash and just claim that there wasn’t. This has to be specific to you, not just some general ‘cops are assholes’ bullshit. I need to understand --why would any cop risk his pension just to frame your sorry ass?”

      
Omar looked at me closely, his handsome face framed by a silver goatee: he had one eye half closed, and he was squinting as if trying to size me up. Seconds ticked by in silence, and then, pursing his lips slightly, he looked across the desk at me and uttered a single word: “Negro.”

      
“Huh?”

      
“They wanted Negro.”

      
“Who the fuck is that?”

      
“Negro --guy I used to sell for --moved like half a kilo a week in Sunset Park. Just got out again.”

      
“Who wanted him?”

      
“Narcs. They come to me over and over: ‘We know you selling for him again.’ No, I tell them, I’m working now, I got nothing to do with him no more. ‘Yeah,’ they say, ‘we know you selling.’ No, I tell them, but they want me to snitch for them, to work for him again, but I refused so they planting all this shit on me ’cause I wouldn’t go back into the business. They know I’m innocent.”

      
“Omar, you’re telling me they’re framing you because you refused to cooperate with them?”

      
“That’s what I’m telling you, Mr. Feige.”

      
“Why did they want you?”

      
“I used to be a snitch.”

      
“What?”

      
“I used to be a snitch for them. I had a CI number and everything, and I was making cases for them and everything --big cases, and then one time someone come to my house and starts shooting through the door, so I think maybe someone found out. So I call my handler, and I say, you gotta get me outta here, move me, like into witness protection, ’cause it seem like someone know I’m snitching. And he says sure he gonna help, but then no one does shit, and I’m scared for my family and everything and I think they gonna send someone to come kill us, so I jet --I go to Texas for like four years, and that was it.”

      
“You went to Texas?” I’m incredulous. In seven months I’ve never heard any of this.

      
“Right. So then, when I finally come back a few years ago and get a job and everything, I’m out of the game totally, but then Negro, who they busted, gets out of jail --he been down for like ten years or so --and he go back into business, and first they think I’m working for him, but then they realize I’m straight, so then they trying to get me to work for him, and I tell them they fucked me once and I ain’t dealing with them no more. So then this old DT rolls up on me one day --a guy from back in the day, and he still on Brooklyn South.”

      
“Brooklyn South Narcotics Unit?” I’m scribbling notes now.

      
“Yeah. He still working out of there, and he roll up on me and tell me to get in the car, and he take me for a ride and be threatening me --saying everybody know I’m a snitch, and if I don’t go set up Negro, he gonna put the word on the street that I’m snitching again, and then I’m dead. So I tell him everybody know I’m outta the game, nobody gonna believe I’m snitching ’cause everybody know I gone straight.”

      
“Okay.”

      
“So he driving me around in the undercover car --all around the neighborhood --and he got me in the front seat where the windows is clear, and so everyone can see that I’m talking to the cops, and then he tell me to call him when I decide to do the right thing, and I tell him I ain’t gonna call him, ’cause I’m done with that, and then he look at me and says: ‘Omar, I know who you are; I know where you live. You know we got a history. Don’t fuck with me.’ And I get out of the car, and I’m shaking and nervous and shit, and I just go home and tell my wife what’s up.

      
“So then, like a week later, I see the same cop riding around, and he’s axing me am I gonna roll with him, and I say, no, I’m clean now, you guys already fucked me once and I ain’t messing with you no more. So he just says, ‘Watch your ass, Omar.’ And rolls off. And then like four days later, I’m just chilling in the park, and they roll up on me and this other dude and charge me with selling, and I ain’t even sold.”

      
This was
interesting
.

      
“Omar,” I said, “can we prove that you were a snitch before?”

      
“Of course. I got my snitch papers.”

      
“Official snitch papers with your agreement and your confidential informant number and everything?”

      
“Yeah, but we can’t use it.”

      
“Of course we can. That’s called a defense.”

      
“Mr. Feige,” Omar says, fixing me with a level stare, “my codefendant, he’s still in the game, and if he finds out I was a snitch, if he sees my papers, it’s over --they’ll kill my family. We can’t say anything about it or my kids are dead.”

      
“I need those papers, Omar, and as far as your codefendant . . . well, that’s a risk we’re going to have to take.”

      
Omar just stared at me, shaking his head.

      
“I’ll blow trial before I give that shit up,” he said. And he meant it. Finally I had a defense --one I couldn’t use.

      
It was two weeks later that I appeared again in front of Judge (or as he preferred to be addressed, “Mr. Justice”) Rivera.

      
“I need to make an ex parte motion,” I told his law secretary, Patricia DiMango. Pat DiMango was an ambitious woman who wanted very much to become a judge (she later succeeded). Thin, with a shock of wildly streaked, vaguely blond hair, DiMango was a parody of a wisecracking Brooklyn gal --tough and smart but washed out somehow after too much time feigning attentiveness to Rivera’s buffoonery.

      
“For what?” She didn’t seem particularly receptive.

      
Ex parte motions --those argued directly to the judge without the presence of the opposing side --are extremely rare and only allowed under extreme circumstances.

      
“I’ll explain it to the judge --in chambers and on a sealed record.”

      
“I can’t just let you talk directly to the judge,” she said.

      
“Well, that’s what I need to do,” I insisted. “This is a matter of life and death.”

      
That got her attention.

      
“Why don’t you outline it for me informally, and I’ll take it to the judge,” she suggested, not unreasonably.

      
“Fine,” I told her.

      
Two minutes later, reclining in Rivera’s office, I explained to DiMango that I needed to split Omar’s case from his codefendant’s. Pulling out a copy of his old snitch agreement, I outlined the defense that I’d be unable to present if the case went to trial with the codefendant present. Not only did I want a separate trial --I wanted the courtroom sealed during opening arguments, closing statements, and my client’s testimony. DiMango seemed to mull this over for a few minutes. “I’ll get the judge,” she said.

      
Rivera came in a few minutes later, and after a minute or two of chitchat, the three of us got down to business.

      
“So, Feige,” Judge Rivera said as he fixed me with his appraising grin, “Patty tells me you want an ex parte severance.”

      
“Yes, Your Honor.”

      
“Tell me something, and I’m serious now.” Rivera paused to size me up. “Is this for real, or is this bullshit?”

      
“Totally real, Your Honor,” I said, handing him the confidential informant agreement. “This is the defense right here, but my client won’t let me present it if the codefendant is present.”

      
Rivera looked over the agreement and thought for a beat. “So I guess you won’t object to sealing the courtroom for the undercover’s testimony, eh?” he said slyly.

      
I knew immediately that this was a trap. Prosecutors love to seal the courtroom when an undercover officer testifies --it cloaks the officer in the mystique of cool and dangerous police work, as if the very fact of showing up for trial and facing the defendant is somehow a feat of unprecedented derring-do. Obviously, there are times when undercover work is dangerous and secrecy is reasonable, but prosecutors regularly make the motion to seal the courtroom for tactical rather than security reasons. Not surprisingly, the defense often objects to sealing the courtroom for the undercover’s testimony and insists on what’s known as a
Hinton
hearing (so named for the case --
People v. Hinton
--that created the procedure) to determine whether sealing is really necessary. Rivera figured that if I was really going to cross-examine the undercover about my client’s status as a confidential informant, I would also want the courtroom closed. Sometimes all you can do is double your bet. “Judge,” I said levelly, “not only won’t I object to sealing the courtroom for the undercover’s testimony, I’ll agree to have the entire trial proceed under seal.” Now
that’s
the kind of thing Rivera might think was cool.

      
Sure enough, Judge Rivera looked intrigued. He paused for a moment to process this rather novel idea, and then, having made up his mind, he nodded sharply at DiMango.

      
“I will make it so!” he declared.

      
The case dragged on for weeks, with the prosecutors nearly apoplectic at the idea that we were alleging a cop conspiracy designed to punish Omar for his refusal to snitch. It was a bright May Tuesday when the jury went out, and it was still Tuesday when they returned, after only a few hours of deliberation. As Omar and I stood to face the verdict, my heart was pounding and I was trying hard not to hyperventilate. Omar looked cool as a cucumber. On every count they said the same thing: “Not guilty.” In the rest of my career, I’d only win one other buy-andbust where there was both stash and cash.

- - - -
 

      
I open the door to corrections and step into the well. Because of the late hour, the well is far more crowded than the courtroom. Most of the people at liberty have already been seen, those who are incarcerated more likely left for last.

      
“Yo, Yo, Yo, it’s the white Johnnie Cochran,” Malik yells through the bars of his cell as I step through the second locked wire-mesh door. The other inmates crack up.

      
“You a private lawyer?” one of them asks me.

      
Before I can answer, Malik pipes up. “Naw, man, he a Bronx Defender. What’s up with my case, B?”