INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (13 page)

      
I’m nonplussed.

      
“Clarence, let me guess,” I interrupt him, furrowing my eyebrows just a bit, conscious that my tone is a bit too harsh and powerless to tone it down. “You’re about to tell me that gunshot pattern proves it was an execution --right? You’ve been reading the autopsy report, and you saw the head shot.”

      
Clarence looks stunned. “You know about that?” he asks me suspiciously.

      
“Yes, Clarence,” I say with exaggerated patience. “I know about that, and I understand why you think it’s consistent with innocence, but I’m telling you --it’s not the silver bullet you think it is.”

      
“David” --Clarence is insistent --“it was a hit --the first shot was like point blank in the head --it was a drug hit just like we always thought it was.”

      
The first time I read the autopsy report I had the same feeling. And within weeks of the shooting, my investigator, Ben, had turned up several spades full of dirt on Shamar Hardy. He was a drug dealer who ran with a notorious crew in Soundview, and a widely circulating rumor suggested he had been involved in a murder just a few weeks before he himself was shot. Shamar, it was whispered on the street, had been the setup guy in the Baby Angel murder --a drug-related homicide that went down at the base of the Soundview Oval.

      
Street gangs are as much a part of the life of the Soundview projects as crack and poverty --and undoubtedly related to both. Much of the gang activity in Soundview surrounded a gang called the Bloods and a particular “set” of Bloods known as Sex Money Murder (SMM) Bloods. Partially founded by “Pistol Pete” Rollack in the 1980s, Sex Money Murder was responsible for much of the drug trade and some of the violence in Soundview. Prosecuted aggressively by the federal government, most of the old SMM leaders were eventually murdered or incarcerated (among them Bemo’s son, known on the streets as “Baby B”). And while that kind of turnover might have put an end to a lesser organization, gangs, especially those with the mythic status of SMM, are remarkably resilient. Factions quickly sprang up, all claiming a part of the SMM legacy, and from what I could tell, if he wasn’t an official member, at the very least Shamar Hardy ran with a group of drug dealers affiliated with an SMM faction.

      
Of course, no one from Soundview would ever say such a thing in court. The culture of silence that surrounds the drug game runs way too deep. Still, if it was true that Shamar had lured Baby Angel to his death (and I had every reason to believe that it was), that fact was very important for Clarence --it was an obvious motive for a rival gang to retaliate. And given that everyone agreed that Clarence was not a gang member, it squarely suggested that someone else was likely to have been the shooter. Add that to the three witnesses Ben turned up who saw two young men sprinting from the scene, mix in the brazen nature of the shooting, and it certainly had the drug rub-out vibe. Throw in the autopsy and I guess I could understand Clarence’s excitement.

      
Reading autopsy reports can actually be quite fun --sick, but fun. Unlike gruesome crime scene photos, which are almost always gut-wrenching, autopsy reports are slick and concise and clinical. Dense with pallid descriptions of organ weights and wound tracks, as well as dry commentary on the composition of bile or vitreous humor (the fluid inside the eyeball), autopsy reports almost always yield magical secrets for the inquisitive criminal defense attorney. Unfortunately, many criminal defense lawyers --even those able to do homicide cases --fail to spend much time on the autopsy report. That is a terrible mistake. In nearly every case there is something lurking in the autopsy. It’s rarely obvious; it’s not something like whether the decedent was high or drunk. It’s usually something else, something not always having to do with the cause of death: the angle of the knife wound in a stabbing, the disparate number of entry and exit wounds in a shooting case, or, as in a child murder case I once did, an abnormally high concentration of salt in the bloodstream. It’s these details that can crack a case.

      
In New York the medical examiners are designed to be neutral finders of fact. They don’t technically work for the police, and they don’t technically work for the prosecutors. What that means, in practice, is that unlike all the other witnesses in a criminal case in New York City, the medical examiners (MEs) will actually meet with a defense attorney and go over the autopsy report (just as they do with prosecutors). Sadly, though, their vaunted neutrality and willingness to meet --which initially seems like a boon to a defense lawyer struggling to understand a complicated medical issue or explore a theory --masks a more pernicious reality: that meeting will almost always get quickly reported to the prosecutor’s office, along with a description of what the defense lawyer was interested in. Defense lawyers never get such calls after a medical examiner’s meeting with a prosecutor.

      
The snitch factor is one of the reasons I never meet with the medical examiners, relying instead on friends or the help of a forensic expert. I’ll meet the ME on the stand.

      
That’s a long way off, though. Right now what’s important is talking Clarence out of insisting that I march into court and make a stink about how the autopsy report proves his innocence. I’ve also got to make sure he doesn’t go back to one of his other crazy ideas --that what he really wants is a quick trial.

      
“Listen to me, Clarence,” I say very slowly, looking him straight in the face, “I know this was a drug hit. I even think I know who might have done it. I know that the autopsy report shows stippling, and I know, therefore, that the shot to the side of the head was a contact shot --fired at point-blank range. I understand that it looks like an execution-style murder. . . .”

      
I trail off to make sure he’s with me.

      
Clarence is nodding emphatically as if he’s in complete agreement --so far.

      
“BUT,” I say, “what that autopsy doesn’t show is whether the shot to the head was the first shot or the last. Moreover, given the way the body was facing and the placement of the head shot, it could be that someone was lying in wait for Shamar and stepped out of the stairway that leads to the vestibule. Isn’t that right?” Clarence looks at me skeptically. “Clarence,” I insist, “doesn’t it make sense that Shamar could have been shot by someone coming out of that stairwell? It’s narrow in there, he fell with his head facing the elevator, the bullet entered on the left side of his head --so it looks like he’s leaving the building when he’s shot.” I can see Clarence’s mind turning.

      
“Yeah,” he says tentatively.

      
“Clarence,” I say, giving him a hard look, “that’s the stairway that leads to your apartment.”

      
I try hard not to let the kicker sound as if I doubt his innocence, which of course I don’t --though as usual, that’s right where Clarence goes.

      
“David” --Clarence’s eyes are wide --“you know I’m innocent, right?” I just stare at him, and he continues. “I know you say it doesn’t matter to you, but it does to me.” Clarence is still searching my face, and using the ambiguity of my own beliefs to leverage him into choosing to do what I want him to do, I lean toward him and put my hand on his arm, drawing him toward me.

      
“Listen to me now,” I say. “I already got you out of jail; I’m gonna find a way to beat this case. But you gotta calm down, you gotta shut up, and you gotta give me the time to find a way to do what we both want --prove your innocence. Now we’re gonna walk into that court, we’re gonna shut up about the autopsy report, and we’re gonna adjourn this case for another month while you continue to stay out of trouble and continue to do all the good things you’ve been doing since you got out . . . understood?”

      
I see him nodding, his eyelids drooping slightly in partial defeat. “Yes, David,” he says quietly as I turn to head back into the courtroom.

F o u r

10:51 A.M.

      
Four murders lurk among the fifty-six cases on Moge’s calendar today. Three of the four are mine. Each case is different, bound together only by the fact that someone died in every one. One is a twenty-three-year-old homicide that the Cold Case Squad just closed by arresting my client Alberto Collado, an older Hispanic guy who walks with a cane and is already serving a seventeen-year sentence for an unrelated rape. The second is a crack-house stabbing. The third is Clarence.

      
After a few years of being a public defender, you begin to see the world as being made up of two states of being --in and out, incarcerated or free. Somehow, against this essential dichotomy, every other distinction pales. Black and white, rich and poor, vicious and passive all fade next to the basic question of selfdetermination. Of my first three cases of the morning, Clarence is out, and Reginald McFadden and Alberto are in.

      
Two court officers are lounging by the defense table, just a few feet from the podium. One of them, a heavyset sergeant with a distractedly disapproving look, has a pile of tattered blue cards arrayed before him. The Department of Corrections uses the cards to keep track of inmates. Every time an inmate --known in the argot of the courthouse as a “body” --is “signed out” (that is, transferred from the custody of the Department of Corrections to the court officers or vice versa), a blue card gets handed over. No card, no body. The result is that cards become synonymous with clients. So instead of asking the corpulent sergeant whether Mr. Collado and Mr. McFadden have arrived from Rikers Island yet, I lean over the rail of the courtroom and say, “Yo, Sarge, you got cards on Collado or McFadden?”

      
“I got everybody,” he murmurs derisively, looking up from his magazine --
Guns & Ammo
.

      
A beat to ogle the money shot of a 9mm Ruger.

      
“You want ’em down?”

      
“Yes, please. Both of them,” I say, taking a seat in the front row to wait.

      
I’ve been sitting less than five minutes when my cell phone starts vibrating madly. It’s the office, calling to tell me that I have two clients waiting for me over in criminal court. The problem is, I’m in a different building, and having ordered the cards I’ve pretty much committed to doing my cases in Moge’s part first. I step outside, waving to the clerk to indicate that I’m just making a phone call, and call Lorraine. “Just tell them to be patient,” I say. “I’ll try to get there before the lunch break.” Even as I say it, though, I have the nagging feeling that I’m almost certain to disappoint one if not both of them.

      
Calendar management is one of the most important skills a public defender can master. When you have a caseload of between 75 and 120 cases pending at any given time, the simple matter of where to be when becomes one of the most complicated and taxing puzzles we face. It’s not unusual to have six, eight, or even ten different courtrooms to go to in a single day. Once you start picking up felony cases, those courtrooms are spread out on different floors of different buildings, occasionally requiring a full-on Edwin Moses–like sprint, dodge, and hurdle just to get from place to place on time. The challenge of getting everything done becomes both a mental and physical chore, and so, in my spare moments, when I’m not plotting revenge against Angelo Tona or one of his evil brethren, I’m plotting my path through the courthouses.

      
Whatever the floor, whatever the judge, nearly every court appearance a defendant or public defender makes will end the same way --in an adjournment that postpones resolution to a future date. Quite simply, the system is not designed to mete out the kind of speedy justice that any normal person would expect. Pleas are adjourned for sentencing; trials are adjourned because the police don’t show up, or the defense isn’t ready, or motions that should have been filed weren’t. Cases are adjourned for plea discussions and then, more often than not, for more plea discussions. It’s a vicious cycle, chronically resistant to change, born of consistently overtaxed resources.

      
Because of this crush, zipping a case through the system is virtually impossible. It is also, generally, not a good strategy for an out defendant. Leaving aside the terrible waste that goes hand in hand with delay, from a purely strategic point of view cases usually get better for the defense with age: witnesses move away or forget details, ADAs get sidetracked by other trials or leave the office, bad judges get transferred or eventually happen to have such a good day that they have a miraculous, if fleeting, moment of compassion. The downside for an in defendant, though, can be a terrible stretch in jail waiting for a trial. The relentless volume of cases ensures a brutal schedule of court appearances --so many that they are nearly impossible to manage. Becoming a good client juggler is something that every public defender has to learn in order to last.

      
Adding to the challenge, unlike many federal courts, in which all parties are instructed to show up to court at a certain time, Bronx courtrooms work like a casting cattle call --first come, first served. This policy is enforced through the use of sign-in sheets, on which a lawyer with a ready case will sign the case in by calendar number and defendant’s name, usually indicating whether or not an interpreter is required and whether the defendant is in or out.

      
Once a case is signed in, a court officer responsible for calling the cases (the “bridge man” or “bridge officer”) lines up the case files in a long row, scratches them off the list, and starts calling them. The rule is that once a case is signed in, the lawyer is not supposed to leave the courtroom, but the reality is that once a case is signed in, it can be an hour or two, sometimes even more, before it gets called. This is especially true with slow judges. If I see Judge Seth Marvin briskly dispensing with cases, it’s likely I’ll be in and out of the courtroom in fifteen minutes. On the other hand, if I walk through the courtroom door to find sweet Eddie Padro, who, partially because he grew up in the neighborhood, used to come down off the bench to give little personalized lectures to the kids appearing in front of him; or George Villegas, whose hilarious back-and-forth with defendants could add two or three hours to a 120-case day; or Judge Judy Lieb, once a fancy private lawyer turned federal prosecutor, whose precision and formality ensure lengthy discussions with unprepared assistant DAs and defense lawyers, I’ll know it is going to be a
long
time before my case is called. Faced with a slow judge, there is only one rational thing to do --break the rules: sign up the case, talk to the client, slip out the back, and go do something else.

      
I tried to explain the importance of this sort of rule breaking to Jason Miller one fall afternoon. A young lawyer with a thin frame, a mop of brown hair, and oversized glasses perched on a prominent nose, Jason was not a natural candidate for the role of office dandy, but along with his cutting sense of humor he brought to the Bronx a wardrobe of thick, well-tailored shirts and bright, daring ties. From early on it was clear that he would be a good lawyer. It had nothing to do with the Ivy League pedigree --that hurts as often as it helps, since much of the day-today public defender work is intellectually simple but emotionally complex. But Jason had an astonishing ability to use his awkward delivery and his deadpan sense of humor to reach clients utterly unlike him, quickly absorbing the culture of the courthouse and acclimating to the pace of the work.

      
We were standing in the capacious hallway between four of the largest courtrooms in the criminal court building in the crush of a crowded day when he astutely popped the question: “How do you keep up?” He seemed a little nervous that whatever the answer was, it wasn’t going to be good. “I mean, how do you play by the rules and still get to every case?”

      
“Just be like a shark,” I told him.

      
“I gotta be like a shark?” His glasses hid a look that could have been bemusement, admiration, or contempt.

      
“Like a shark,” I persisted, “you gotta be in constant motion. You see, the problem you’re gonna have is that you’re gonna want to listen to the judges and court officers: to respect them and not piss them off.”

      
There was a pause as Jason digested this critique.

      
“Ah . . . yeah,” he said, his face suggesting that he thought there might indeed be good reasons to not piss off judges.

      
“Can’t do it,” I told him. “Not if you want to be effective. You gotta do exactly what they forbid you from doing. Gauge the line, sign in the case, and then leave.”

      
“I thought we weren’t supposed to do that?” Jason said warily, as though he was trying to decide whether I was just setting him up to get hurt.

      
“You’re not,” I told him, “but it’s the only way you’re gonna thrive.” You swim, you live. You stop, you die.

- - - -
 

      
Everyone assumes that as citizens we should respect the criminal justice system. What is often overlooked is that the system should respect the citizens as well. Behind every case there is an anxious client who has taken a day off work, or who needs to pick up her child from day care, or who is nervous about an appointment with the welfare office or a meeting with her parole officer. All of them have a life that has been put on hold until they get to see the judge --and all are counting on us to be there, to help them, and, perhaps most important, just to get them out of there and back to the lives they’ve briefly, tensely checked at the courthouse door. I wanted Jason to understand that following the rules would waste not only his time but, even more critical, theirs, that the only moral and logical thing to do in a system whose rules make your job impossible is to reinvent the rules.

      
Sadly, not every public defender does this well, and much of the burnout young public defenders experience is the simple result of too much rule following. I’m always skeptical of lawyers who are sitting on their asses in a shabby criminal courtroom waiting while fifteen other cases are called before theirs gets heard. Almost to a person, they’re the ones who won’t last. I can see it in how they talk to clients, the glazed look that comes from seeing the tedium of patterns instead of the specifics of people --the sense of futility that comes from knowing that to every client the criminal case pending against them is one of the most stressful things in their lives, that they want, more than anything, to have it over, but that you’ll be essentially powerless to end it. You play by the rules, but what does it get you? Hours in limbo while the rest of your clients wait, their lives eroding away. Play by the rules and the only way to survive is to turn off entirely. Rule breaking is a way of eking out some tiny sense of power in a system that leaves defenders utterly disempowered.

      
Burnout has a dangerous but predictable progression --first you draw lines between lawyer and client; then you start blaming the clients; then you just stop caring. Most people make it less than three years before they fry. Some get over the hump and live to six. A few, and only a few, stay sharp, focused, and committed for more than a decade, fighting the unwinnable fights, defending the impossible cases.

      
Assistant district attorneys rarely have this problem. Unlike us, they have cases rather than clients. Sure, there are victims and a system of laws that ADAs claim to uphold, but they’re on the winning side, the popular side, the side glamorized in a thousand
Law & Order
episodes. And while they may know their complainants, they spend the bulk of their time with cops, not citizens --and certainly not citizens facing incarceration, dissolution of their families, or the orphaning of their children.

      
Even more significant is the fact that in the Bronx few of the relevant ADAs are even around when most of the mundane nonsense and interminable adjournments are taking place. Because their system is about cases rather than clients, it relies on having certain ADAs assigned to specific courtrooms, playing zone as opposed to man-to-man: rather than run around, ADAs just distribute their cases to whichever colleague is, in courthouse speak, “covering the part.” Unfortunately, since most ADAs are shockingly bad at the simple chore of annotating their files or ensuring that the necessary information is available to the colleague who actually stands on the case, more often than not the prosecutor in the courtroom knows almost nothing about the cases he or she is ostensibly prosecuting, making it even harder to ever get anything done.