INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (20 page)

      
With no plea bargain in the offing and Edward newly determined to get out of the case, he was forced to plead guilty to the entire indictment. After a sentencing hearing, Moge gave him eight and a half years, five more than I could have gotten him at the beginning --the price of my own vanity.

      
I learned a painful lesson from Edward about trying to hear clients clearly without the distortive clamor of my own ego. Unlike TV shows in which criminal defendants are constantly looking to get over by using a difficult childhood as an excuse for barbaric behavior, most clients just won’t talk about their lives much. The reality is that clients don’t really want you to know that they were in sixteen group homes in seven years, or left in a freezer to die at age two, or that they were hiding in a closet when their older brother got murdered. How, they wonder, could such information ever help? Why would anyone care --especially since no one seems to have cared before? Sadly, in almost every case, they’re right --in the criminal justice system, almost no one really does.

- - - -
 

      
I try to buzz Robin through the intercom, but she’s on the phone. I wander back around the corner, and gesturing at my wrist (I don’t wear a watch; there are enough clocks within view at court that I am always acutely aware of how late I’m running), I indicate that I need to head back to court soon. Catching my eye, Robin nods and flashes me five fingers.

      
Back to my office: the phone is ringing again as I walk in. Max is calling from a jail in Manhattan on a TDD --a telecommunications device for the deaf. He types his part of the conversation, and the phone operator reads it to me.

“Please, please, you are the only hope,” the operator reads with no affect whatsoever.

      
Though born in the Dominican Republic, Deaf Max has lived in the United States nearly his entire life. Just over a year ago, Max pled guilty in Manhattan to a misdemeanor assault. He was sentenced to a year in jail. The problem is that Max’s lawyer didn’t realize that while the assault conviction is classified as a misdemeanor in New York, because the sentence was a year or more, federal authorities considered it an aggravated felony requiring deportation. Perversely, even though Max has already completed his sentence, the DA won’t agree to retrospectively resentence him to 364 days --even though doing so would avoid having him deported to a country he’s never known. It would be a simple change in the paperwork, with no practical effect other than to give him a chance to stay here with his family and young son. In the DA’s mind, though, “a deal is a deal.” The fact that Max’s lawyer screwed up seems of no consequence, and unless I figure something out soon, Max will be deported.

      
“I’ll try, Max, I’ll try.”

      
I can hear the operator’s fingers typing my reassurance.

      
“Thanks,” she reads blankly, and then, in the same monotone: “The caller has disconnected.”

      
I look through my new messages. One is from a Supreme Court judge. He’s called to ask if I’ll represent a defendant in a domestic rape case. “I didn’t rape her, I just finger-fucked her” is the statement and presumably the very bad defense.

      
Jason sticks his head into my office.

      
“Got a second?” he asks as he perches his avian frame on the arm of my black faux-leather couch. Today he’s in a memorable getup --a thick, elegant shirt with thin blue and gold stripes that make the material warm and luminous. I’m frightened to think that it also has French cuffs --but a quick glance confirms that it does. To go with the shirt, he is sporting a peachcolored tie that, if I was a bit more fashion forward, I would appreciate more than I do.

      
“C’mon in,” I tell him.

      
Jason hasn’t been with the office that long. Then again, it doesn’t take long to be exposed to the absurdities of criminal court. Judge Raymond Bruce, who once furiously declared, “When someone gives you a horse as a present, you don’t look at its teeth!” (his way of chastising Jason and one of his clients for not taking a plea), presided over one of Jason’s first trials --a blind man accused of assault. The prosecution’s theory: “he’s not blind.” Indeed, that’s what Assistant District Attorney Dan Kraft claimed throughout the trial as the man’s seeing-eye dog lay lazily by the defense table. “He’s faking,” Kraft insisted as the defense introduced medical records indicating the client had been blind since birth. “I will prove that this man is a liar and can see!” Kraft swore, hinting that he had some secret evidence with which he’d prove this increasingly bizarre contention. An official certificate of legal blindness issued by New York State didn’t dissuade him, nor did the testimony of the client’s girlfriend (who was also legally blind).

      
And so, when Kraft’s moment finally came, when he rose to cross-examine the client (who had been guided to the witness chair by the seeing-eye dog), everyone was rather interested to see what this secret proof might actually be.

      
“You say you’re blind, sir!” Kraft said, sarcasm dripping from his voice.

      
“Yes, I am blind,” said the blind man calmly.

      
“But you check out girls on the street, don’t you?”

      
“Excuse me?”

      
“Sir, I’mmmmm told that you check women out. Isn’t that a fact?”

      
“Um, I can’t see anything --also, I have a girlfriend.”

      
This line of questioning didn’t seem to be getting Kraft where he wanted to go, so he deftly changed tacks.

      
“Well, you read, don’t you?”

      
“Braille.”

      
“Oh, nooooo sir, you read
magazines!
Normally printed magazines!
”

      
“Um, no.”

      
“Well, what’s this then?” Kraft demanded, holding up a glossy magazine addressed to the client. This was his gotcha! moment.

      
“I don’t know,” said the client. “I can’t see.” The seeing-eye dog let out a tiny, almost inaudible sigh and licked the court reporter’s leg. The court reporter burst out laughing. Kraft was deadly serious.

      
“It’s a magazine addressed to YOU!” he nearly shouted.

      
“Well, I get magazines,” Jason’s client said simply. “I have them read to me.”

      
This apparently was something ADA Kraft had never considered. For nearly a year Kraft had insisted that the blind man could in fact see, and it seemed that, all of a sudden, he was the one left in the dark.

      
Quickly ending his cross-examination, Kraft rose to deliver his summation: “He may be blind,” Kraft conceded, “but I still think he can see more than he’s letting on.”

      
Jason won that one.

      
Today being a normal day, Jason is probably carrying about eighty cases (though the load can occasionally reach one hundred). Partially because my cases tend to be the most serious in the office, and partially thanks to the privilege of rank, I have fewer --usually between forty-five and sixty. Of course, part of my job as the trial chief is helping the other lawyers figure out their cases, so when I’m not working on my own cases, or on the phone or in court, there is almost always someone in my office with a question, sometimes legal, sometimes tactical. Even walking in and out of the office, I’m regularly stopped with a “what is this case worth?” kind of question, a request for my sense of the numbers --representing years of someone’s life --answered while barely breaking stride.

      
Sitting at the lunchroom table his first week, Jason had overheard another lawyer telling me she’d picked up a bad case --assault in the first degree.

      
“What’s the weapon?” I asked.

      
“Machete,” she said.

      
“What’s the injury?”

      
“Hand.”

      
“How’s the hand?”

      
“Off.”

      
“All the way off?”

      
“Yeah, straight through.”

      
“That’s a bad fact.”

      
“They surgically reattached it.”

      
“Well,” I said, nodding, “that’s something. Guy gotta record?”

      
“Nothin’.”

      
“Both drunk?”

      
“Looks like it --fight between two Salvadoran guys.”

      
“Just one whack?”

      
“Yeah, one swing, and then the hand’s on the ground from the wrist down.”

      
“I’ll bet you can get two, maybe even less.”

      
“They’re offering three and a half preindictment.”

      
“Hold out --you’ll do better.”

      
“Okay. Thanks, Feige.”

      
Today, Jason has his own sentencing question.

      
Over the years, New York, like almost every other state, has reformed and rereformed its criminal sentencing laws. The adjustments, announced during every election cycle or after any particularly horrific crime, are always bad for my clients. In the time I’ve been practicing, the minimum sentence for a first-time offender convicted of a class B violent felony like armed robbery has gone from an indeterminate sentence of two to six years, to an indeterminate sentence of three to six years, and finally to a determinate --that is, fixed --sentence of five years. Learning the sentencing rules --and learning them thoroughly --is one of the best ways to gain power in the system. Because change is so common and ignorance so widespread, actually knowing the correct answer to every sentencing question leads everyone else in the courtroom to trust and then rely on your assertions --a fact that can become quite useful when trying to work out a plea deal.

      
Jason’s question had to do with merger: what happens when someone is sentenced to two different terms of incarceration, one for a misdemeanor and one for a felony? The answer hinges on how the New York City Department of Corrections calculates jail time and, oddly, whether the client is locked up in a jail at Rikers that inmates call the “six building” and DOC describes as a “sentence facility.”

      
As I’m explaining this to Jason, Emma Ketteringham pokes her head in. Emma is the office über-WASP. Tall and slender, with long blond hair and sparkling blue eyes, she is one of the only lawyers we ever hired directly out of a fancy law firm. Bigfirm lawyers usually can’t handle the transition to state-level public defender work --they’re too used to focusing on just a few cases, too used to cozy offices and large paychecks, too used to the reverence with which others react to the invocation of the law firm name. Fancy résumés from Paul, Weiss; Shearman & Sterling; and Fried, Frank had come in many times over the years, and though the associates looking to make the switch were sometimes bright and always unusually confident, we’d never been convinced that any of them would last. The firm folks normally exhibited an intellectual attachment to the
idea
of the work, rather than a passionate commitment to the clients themselves. You can usually see it in their eyes during an interview --a vague fear of the comparatively shabby offices or the underresourced and overworked conditions.