INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (36 page)

      
For many years, trust, pace, and forgive worked well as coping strategies, though in my heart of hearts I knew that their talismanic power would be unlikely to protect me a third time.

      
In the ensuing decade, I walked some clients out from under overwhelming evidence --Steve, caught red-handed in the apartment of the man he allegedly kidnapped, bloody duct tape and guns recovered from the scene, a gold identity bracelet with the complainant’s name on it allegedly recovered from his pocket: not guilty.

      
I also lost some I should have won --Jason, convicted of assault for slashing his cousin’s face at a kid’s birthday party despite the strong evidence of self-defense: he got four years, got out, and a year later, thanks to the conviction, got deported.

      
But none of them were the third strike --not even Ron, Ululy’s client, whose life Judge Kiesel ruined with a fraudulent conviction. That stung, and it made me furious, but it wasn’t my case and it wasn’t the third strike.

      
The third strike was Ray.

      
Interrupting my thoughts, the intercom buzzes: it’s Robin. “You know we’ve got night court tonight?”

      
“I know,” I say, sounding more annoyed than I actually feel. “Please don’t be late again --it’s heavy over there.” “I’m on my way,” I say wearily as I send Lisa off with a reassuring smile and a promise that Massaro will give her client probation (he does). I grab a pen, pull on my crinkled suit jacket, and head back toward criminal court, toward another stack of court files, another overworked judge, and another cell full of poor, incarcerated wretches living in a long, melancholy night.

F i f t e e n

5:18 P.M.

      
I love night court. I love the silence of the courthouse. I love that I can hear my footfalls on the tiles, that there is no line for the magnetometer, that the small complement of court officers greets me with “Hi, Dave” instead of brutish indifference. I love the purity of the empty courthouse, the stability of being in one courtroom for an entire shift, the ability to focus on the cases in front of me without worrying about running somewhere else.

      
I have done as many as fifty-five misdemeanors in a single night shift.

      
Somehow, in night court, the regular drone of the system can take on an eerie and sometimes comical cast --as if fighting fatigue, alone together in the building, everyone is finally able to see the tragedy and comedy of things more clearly. It was in night court that I first saw staples in someone’s head. They looked just like the staples that are in a stapler: a long row going from the top of the forehead to the base of the skull like a welding job on a robot’s head. They were the result of smart-mouthing a cop.

      
Another night, a forty-six-year-old woman is charged with a gunpoint robbery, her first arrest. The police have no gun, no property, no nothing; it’s a one-witness ID case. Still, the assistant district attorney wants her in jail. The judge looks down at the ADA incredulously and asks, “Are you telling me that at forty-six this woman just started doing armed robberies?” The assistant DA has no answer, and the woman is released.

      
On still another night I’m standing in the small, cramped enclosure between the bars that lead to the cells and the solid steel door that leads to the arraignment courtroom. It is well after midnight, and night court is in full swing and particularly pungent. Eight or nine people are squeezed into an area of less than four by six feet. Everyone has been in the system for at least sixteen hours, and most are sweating and smelly. In the corner, her ass pressed against the bars, a sassy prostitute wearing a skintight flesh-toned halter top is taunting the boys: “Whatch you all looking at my titties for?” she says over and over. “Yeah, you . . . why you looking at my titties?”

      
The men are nodding approvingly or ostentatiously averting their eyes. Her breasts are, in fact, prominent and spectacular, and her sassy tone and jutting hips add to the effect. And just when it seems as if someone is going to try to grab a handful, her case is called, the steel door opens, and she wiggles her way into the courtroom. In about thirty seconds she pleads guilty, gets time served, and struts out --heading, in all likelihood, back to her stroll. With her gone, the men in the well go back to their dissatisfied, defiant poses.

      
Night court in the Bronx runs from 5:00 p.m. to 1:00 a.m., 7 days a week, 365 days a year. Although judges are generally assigned to specific courtrooms, every criminal court judge also has to do a short stint in night court every once and again.

      
Tonight, as I walk in, musing about motions left unwritten and the calls that have gone unanswered, strolling past the magnetometers and the unhurried, friendly court officers, up the stalled escalators to the second floor and into the arraignment part, I’m trying to find the energy to propel me through another eight hours --to forget about Reginald and Clarence, Najid and Malik, Cassandra and Jaron, and focus on the stack of new cases that awaits me.

      
Two factors are highly predictive of how long and painful a shift in night court is about to be: the judge and the system numbers. Both bits of information reside in the clerk’s office, where the rotating schedule of judges is taped to a battered metal file cabinet and the number of arrestees “in the system” can be gleaned from a stack of computer printouts listing in chronological or alphabetical order every arrest in the past forty-eight hours.

      
If the load is light, it usually means an early night, plenty of time to talk to clients, and maybe even a nice long dinner break. On a heavy night, though, the cases come fast and furious, and there is intense pressure to get the clients interviewed and arraigned as quickly as possible. Then, night court can become extremely unpleasant --a constant battle between an impatient judge and exhausted lawyers who insist on taking the time they need to adequately defend their clients.

      
Even more important than whether it’s a heavy night or not is the judge. If Megan Tallmer or Ruth Sussman or Ralph Fabrizio is on the bench, the best thing you can do for close-call clients is forget about them --let them sit another night and take their chances with the day judge. That’s because judges like Tallmer and Sussman and Fabrizio love to coerce pleas and are, therefore, much more likely to set five hundred or one thousand dollars’ bail on nonsense cases in which a better judge would just release the defendant.

      
This radical difference between judges quickly becomes apparent, and I have often seen baby lawyers return shell-shocked from their first awful-judge-arraignment shift. The powerlessness of arraigning case after case before a judge who doesn’t listen to a word you’re saying and brusquely dispatches almost everyone to Rikers can reduce almost anyone to tears.

      
Scanning the list, I breathe a sigh of relief --Judge Dawson will preside tonight. Occasionally intemperate, exceedingly smart, and, most important, reasonable, Dawson is a fine draw, and knowing that he’ll be up there briefly banishes my fatigue.

      
The arraignment routine is always the same. In a corner of the courtroom, the Bronx Defenders huddle, waiting for cases to appear. Periodically, someone from the Clerk’s Office will emerge carrying a stack of paperwork --one set goes to the court, the other is delivered to us. Each case contains a complaint --the legal document that officially begins a criminal proceeding --a rap sheet and what is known as a CJA sheet, the product of an interview at Central Booking, where clients are asked where they live, who they live with, where they work, and some other questions designed to elucidate their ties to the community.

      
The complaint is usually just one page --it lists the charges and the specific code sections someone is accused of violating, and provides about a paragraph of detail in odd punctuation and legalese explaining just how someone violated the law.

      
The deponent is informed by informant that At the above TPO [time and place of occurrence] The defendant, aided by another actually present, did forcibly remove property from informant without his permission or authority while displaying what appeared to be a firearm.

      
The deponent is informed by informant that at the above time and place of occurrence, The defendant did, have sexual intercourse with informant by forcible compulsion.

      
Deponent observed defendant enter the New York City Subway system without paying the lawful fare by jumping over a turnstile.

      
The cases go into a metal basket, and a clerk from our office divides them into a stack of misdemeanors and a stack of felonies. If a bunch of new cases comes in all at once, the lawyers divvy up the spoils.

      
“I’ll give you the rape if I can have the arson. . . .”

      
“I can’t do another DV case. If you take these, I’ll do the petty larcenies, the two weed cases, and the car case too.”

      
“Anyone want a drug sale? I’ve already done two tonight. . . .”

      
It’s just before 6:00 when the first batch of cases comes in. There are about a dozen in the first stack, nothing too unusual --a pile of misdemeanors and a few mostly low-level felonies. Tonight I’m working with a particularly good crew --Robin, Jason, and Aaron, whose steely resolve and clean, elegant thinking make him a powerful courtroom presence. Robin and I divide up the misdemeanors, and I grab a felony or two as well.

      
“You ready?” I ask Robin as I pick up a pen and a stack of my business cards.

      
“Let’s do it,” she says with a smile as we head through the heavy blue doors, into the well, and then back into the cell block beyond.

      
“Yo! Feige.”

      
I’ve barely rounded the corner toward the cells, and already I’ve been made. It’s Jermaine, a client I once represented in an assault case. Where I grew up, the “assault” Jermaine was charged with was what we’d call a playground fight. (In the highly policed inner-city school yards of New York City, even a recess dustup can make its way into the criminal justice system.) But now here he is in the cells behind the courtroom, calling my name as if we’re out on the streets.

      
Spotting him, I have that strange mix of feelings --it’s always nice to see an old client, but at the same time, seeing Jermaine back here is troubling. Jermaine had been doing well in school and had the kind of positive attitude I really warmed to. I had hoped that his previous escapade might have been his last.

      
“Feige!” he says, seeming genuinely happy to see me, which I suppose, on some level, he is.

      
“Jermaine, what the fuck are you doing here?”

      
“Oh, Dave, man, it’s nothin’. Bullshit. For real.”

      
“So what you been up to, my friend? You been staying out of trouble?”

      
“Yeah, man, I been pretty good --I’m working and everything.”

      
“You been arrested since I saw you last?”

      
“Nah, not really.”

      
“What do you mean . . . not really?” I ask.

      
“Well, you know, not like nothin’ real or nothin’.”

      
“Jermaine,” I say, glowering, “how many times you feel the steel? How many times have the cops actually cuffed you?”

      
“Oh, like that.”

      
“Yeah, brother, like that.”

      
“Oh, like about six.”

      
“
Six
?”

      
“Yeah, but not for nothin’ serious.”

      
I could smack him.

      
As it turns out, Jermaine is basically right. As I will find out later in the evening, his current case is for smoking marijuana in public, and the past few were indeed all crap --mostly hangingout offenses such as having an open container of alcohol or trespassing, which, along with disorderly conduct and resisting arrest, is one of the most abused criminal statutes. When cops do what they call “vertical sweeps” --clearing out a project building from the lobby to the roof --they rarely stop to ascertain who has legitimate friends where. The result is a constant flood of absurd trespass cases, as kids who live in and around the projects are constantly being arrested on their way to visit friends in adjacent buildings.

      
Of course, the rub is that even without doing much of anything particularly serious, Jermaine is already working up a criminal record significant enough to really damage him in life. Part of it is youthful stupidity, but much more is the omnipresence of policing in his community and the resulting blasé attitude that he and his buddies have toward tickets and arrests.

      
“You gonna take me, right?” he asks.

      
“Yeah, brother, I’ll do it --soon as it comes in. Until then, sit tight. You’re lucky you’re in the cell ’cause I’d kick your ass for being so stupid.”

      
“You right, Dave,” he says, and smiles his altar-boy smile.

      
I make a mental note to grab his case when it comes in.

      
Heading to the second cell, I pause at the bars. The cell is packed, the steel bench that runs around the perimeter crammed with people. A few of the homeless or drug addicted are passed out underneath the bench, behind the feet of the guys sitting shoulder to shoulder. At least a dozen people are standing too, filling up most of the space in the cage. The stale air stinks of urine and sweat, and the thick sticks of incense that the cops burn don’t seem to make much of a difference.