INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (26 page)

      
“Your Honor,” says Legal Aid, using a term clearly inapplicable to the situation at hand, “we have a disposition.”

      
Kiesel barely reacts, and Legal Aid continues: “After consultation with my client he’s authorized me to enter a plea of guilty on his behalf to attempted criminal contempt in the second degree. He does that with the understanding that he’ll be sentenced to thirty days in jail.”

      
Kiesel is still staring out over everyone, her eyes focused on an imaginary spot somewhere on the back wall. “And abide by a full, permanent order of protection,” she adds distractedly.

      
Blue winces, and I’m briefly glad that the wife is outside --she came to court to try to explain that she wanted her husband home and that she didn’t want or need an order of protection. Now, not only is her husband going to jail, the judge is reissuing an order barring him from his home, his wife, and his children for another year.

      
“J-Judge,” Legal Aid stammers, “the
complainant
doesn’t want the full order of protection. She’s come to court to explain that --she’s made it clear to me and to the DA’s office and tried to make it clear to you that she wants him home. Please, just limit it so that he can live at home.”

      
“Do the people want a
limited
order of protection?” Kiesel says, glancing over at the young ADA who has remained impassive throughout the proceedings.

      
“No, Judge,” says the ADA, “my file says full.”

      
“Well, then,” says Kiesel, looking back at Legal Aid with a contemptuous look, “would your client like to withdraw his plea?”

      
Blue looks as if he’s going to cry. From the side I can see his shoulders start to heave, jerking his hands, cuffed behind his back, up and down. His head is bowed, and it’s clear he’s breathing deeply just trying to keep control of himself.

      
“Just get me out of here,” he mutters audibly to Legal Aid, though whether that means he wants the plea or just wants to go back to his cell is unclear. Legal Aid leans in close, and I can see Blue shaking his head. “Just do it,” he says. “Get it over with.”

      
“No, Judge,” Legal Aid says flatly, “my client wants to plead.”

      
“Sir,” Kiesel says to Blue --she’s doing that amazing trick of talking to a defendant without really looking at him --“your lawyer tells me that you want to plead guilty to this criminal offense; is that what you wish to do?”

      
Blue just shakes his head in disbelief.

      
“You have to say yes,” Legal Aid instructs.

      
“Yes,” says Blue, his shoulders shaking, his breathing quick and shallow.

      
“Has anybody forced you or threatened you to plead guilty?” Kiesel asks in the same flat tone.

      
“No,” mutters Legal Aid under his breath.

      
“No,” murmurs Blue, though everyone in the courtroom knows it’s not true, and I know that only 750 bucks would have made the difference --the essential divide not race but cash. Had Blue made bail this whole thing would have gone away, or at worst he would have been offered a plea to a noncriminal offense with no jail time and a limited order of protection.

      
“Fine,” says Kiesel, “I accept your guilty plea and sentence you to thirty days in jail and a conditional discharge, the special condition of which is that you abide by a full, permanent order of protection --that means you can have no contact with your wife, none whatsoever. It doesn’t matter whether she wants to see you or not. I’m ordering you to stay away from her. Is that clear?” I could swear there is a sadistic sparkle in Kiesel’s eyes.

      
Blue just nods, but Kiesel wants an answer.

      
“Clear?” she asks again.

      
“Yes!” hisses Legal Aid.

      
“Yes,” says Blue.

      
“Good,” says Kiesel. “Next case, please.”

- - - -
 

      
I’m getting nervous. Cassandra and Najid are waiting downstairs, and I still have Jaron on the main floor. The clock is edging past 3:00, and that leaves less than an hour to get everything done since most judges like to be off the bench by 3:45 or so. Unfortunately, there’s still one more case before mine.

      
I decide to hang tight.

      
Glancing back at Hector, still sitting in the second row, I give him the “just be patient” sign --palms down, fingers spread, gesturing gently toward the floor as if to say,
Don’t worry, be calm, it won’t be long now
. Hector rolls his eyes just a little and shakes his head incredulously --every time he comes to court, he can’t believe what he sees.

      
Neither can I sometimes.

      
I swivel my head back toward Kiesel just as a thick dark-skinned man with long, twisted dreadlocks comes shuffling out.

      
“Add-on to the calendar,” announces the bridge officer calling the case.

      
Being an add-on almost certainly means that Dreads has been in jail for a short time. Adding a case onto the calendar means that it wasn’t normally adjourned last time, so he’s either coming straight from a different courtroom or his adjournment was so short that the case didn’t make it onto the daily lists compiled by the central clerk’s office. As it turns out, this is Dreads’s third courtroom for the day. Dreads had been out on bail the last time he came to court a few weeks ago. Like many others, he’d spent much of the day in AP-10 waiting for his case to be called. When the time finally came, Dreads had explained that he needed to run to pick up his kids from school.

      
“Can you just send me the order of protection?” he’d asked his lawyer. His wife had already called the DA and the lawyer explaining that she didn’t want the order anyway.

      
“Actually, I can’t,” the lawyer had told him. “You’ll have to wait.”

      
So Dreads waited.

      
And he waited, and after waiting for forty minutes, he couldn’t wait any longer --it was 3:10, and he had to pick up the kids at 3:30.

      
“I can’t wait anymore, mon --I gotta be gettin’ the kids,” Dreads explained to the court officer. “I can come back tomorrow and pick it up.” The court officer just shrugged.

      
As any prosecutor will happily tell you, orders of protection are enforceable even when someone hasn’t signed them --so long as they are duly served so that the recipient has notice of the order. Technically, since Dreads was notified during the court proceeding that he was still subject to an order of protection, his signature was just a formality.

      
But Judge Salvatore Modica thought that Dreads’s leaving was disrespectful. Dreads’s lawyer had long since decamped for another courtroom when they finally called his name. The court officer Dreads had spoken with had never mentioned the situation to Modica, so Modica, on his own, had Dreads’s case recalled --without the lawyer or the client or anyone except the ADA present --and because Dreads didn’t sign the order of protection, Modica issued a bench warrant. “Set bail,” he scribbled on the court papers --which is exactly what Judy Lieb, the duty day judge, did on the day that Dreads showed up again for court.

      
Having set bail as instructed, Judge Lieb then sent the case back to Judge Modica, who increased the bail from the $500 that Judge Lieb set to $2,500. Then he sent the case back to AP-10.

      
By the time I see Dreads come into AP-10, he’s been tossed into jail, had his bail raised, and is completely freaked out. “
Please
,” he begs his lawyer, “you gotta call someone --I got to pick up dem kids again. I’m tillin’ you, my girl been down here to drop dem charges --been down to tem office tree times. She sign dere papers!
Please
, call her! She’ll tell you, mon.”

      
“I know,” says Dreads’s lawyer --as it turns out, Dreads’s girl has called him several times too, conveying the same message.

      
Kiesel is drumming away, the ADAs are shuffling their files, and Dreds’s lawyer is whispering to one of the ADAs in a plaintive tone that’s barely audible when I make out one of the few magic words in AP-10: “Andy.”

      
Andy Liu is one of the few really decent ADAs in the DV unit. Born in Michigan of Chinese immigrants, Andy was raised in Santa Barbara and got a philosophy degree from UCLA before coming east for law school. If you are lucky enough to get him on the phone or corner him in court, Andy, unlike most of the rest, will listen carefully and respond reasonably. He has a stellar reputation with the defense bar and (perhaps surprisingly) within his own office, which has promoted him steadily into the supervisory ranks. Andy is unfailingly personable and so principled that even when he refuses to do what I think of as the right thing --either because it’s beyond his jurisdiction or because we have a disagreement about what the right thing is --he’s almost impossible to resent. What sets him apart is that he’s never punitive. So far as I can tell, Andy has never kept someone in jail on an untenable case just because he can --and that alone, in the world of ADAs, is enough to make him almost saintly.

      
“Can I have a second to make a phone call?” the ADA asks Kiesel.

      
“Sure,” says Kiesel, standing up and striding off the bench.

      
“Court will take a five-minute recess!” the court officer declares as Kiesel walks stiff-legged toward her chambers. As soon as she gets up, Dreads is marched away. I glance back at Hector again and shrug. Nothing to do but ride this one out.

      
Five minutes later, Kiesel returns, Dreads is brought back out before the court, and the ADA asks that the case be dismissed. Kiesel seems momentarily perturbed, but there is nothing she can do. The court officers remove the handcuffs, Dreads stretches his shoulders, and after a day of useless incarceration, he walks out of the courtroom.

      
If Andy hadn’t picked up the phone, Dreads would have stayed in jail and his kids would have been left stranded in front of their school. If Dreads hadn’t been in front of Judge Modica, there never would have been a bench warrant issued. And if Ron, the innocent kid Ululy tried so hard to save, had gone to trial in front of almost any other judge, his life wouldn’t have been ruined.

      
The capriciousness of the system is often overwhelming.

      
It’s not just the prosecutor and the judge, of course. The defense lawyer makes some difference. Certainly, a client unlucky enough to get a lawyer who just churns cases by taking pleas is going to have a hard time finding justice. But even with a good lawyer, a client who draws a nightmare prosecutor has basically been handed a one-way ticket to jail or prison. This is especially true when litigating against an awful prosecutor who has an ally like Kiesel on the bench. Then the frustration and powerlessness can become almost too much to bear. It’s those times that we do everything right on behalf of a deserving client and still wind up getting crushed that can drive defense lawyers completely over the edge. That’s certainly what happened to a lawyer I once knew.

      
Standing in front of a gallery of waiting clients and enervated witnesses, she did what I’ve wanted to do many, many times after a horrible, unconscionable ruling: she looked up at the judge and reportedly said, plain and simple, “Fuck you, you nasty bitch.” It wasn’t under her breath, and it wasn’t the whisper that a lawyer can often get away with. It was loud and proud and impossible to ignore.