INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (28 page)

      
It was a cold night outside, and the lobby of the brick building in the McKinley housing projects smelled like the big blunt two teenagers were smoking in the corner. One --a big kid with wide, dark eyes and a menacing smile --looked up as I walked in. I nodded to him as I crossed the graffiti-covered lobby toward the elevators.

      
“Yo,” I heard behind me. And as I turned, “You know me.”

      
There was a quizzical tone to the statement, and as I tried to decide whether it was a threat or a question, I realized it was Sharief, one of my former clients.

      
“Wassup, Feige?” he said, nodding, remarkably nonchalant given the fat blunt smoking lazily between his fingers.

      
Gold Tooth Gloria was on the second floor, playing some strange hybrid of blackjack and five-card stud with three other women. Miller Lite was doled out into Dixie cups, most of which were almost empty. The game was nearly over, or not very interesting, because everyone seemed perfectly happy to stop playing when I explained why I was there and why I wanted Gloria to talk about the stabbing. Gloria was forthcoming and clear. The other women quickly departed, and I sat on the plasticwrapped sofa in her tiny living room while she talked, slurring her words just a little.

      
Most criminal defense investigators are former cops or guys who would be in law enforcement if they could. Most believe investigatory work depends on being a tough guy, relying on heavy footfalls and vague intimidation. Most are not great listeners.

      
This is not to suggest that cops don’t often get what they want --they do. But because they so often hear what they want to hear, what they get is a processed and stilted form of the truth. Often, especially when they’re talking to a younger generation reared on the aggressive policing of the last twenty years, it’s not the truth at all, but nonsense designed to avoid any further discussion.

      
At the Bronx Defenders we never hire former lawmen for just this reason; college kids, though, set out in the wilds of the Bronx without guns or badges or anything else, quickly learn to master a totally different set of investigative techniques than those that the police depend on --persistence, patience, and kindness. These are, in fact, the qualities on which a good investigation depends. It’s something I learned way back, during that formative summer on the streets of Washington, DC, when I was sent out to talk to a woman named Lavonda.

      
It was 1985, and Lavonda was an eyewitness to a shooting in northeast DC, just off East Capitol, where a little series of tumbledown houses used to sit in the shadow of the city’s majestic marble monuments.

      
Lavonda, a critical witness, wouldn’t speak to the previous investigator who swung by her house looking to talk about the case. “I ain’t talkin’ to nobody about nothin’,” she had reputedly declared (repeating the well-worn chorus of investigative work) before slamming the door in the investigator’s face.

      
It was 1:03 in the afternoon when I arrived. Trial was looming, and knowing what Lavonda was going to say could make the difference between taking a plea and picking a jury. The screen door to her building was little more than a hollow frame, and the door behind it swung listlessly open to reveal a dirty, barely carpeted hallway. Lavonda’s place was the first one on the left. I checked my watch (I still wore one in those days) to make sure I had my timing just right. Behind the door I could hear the noises of apartment life --the hum of a fan, the all-important murmur of the television.

      
“What?” Lavonda’s voice was deep, and the door was open just a crack. Inside, true to form, was a small, cluttered living room, with a TV in the corner and two fans parked on the floor, aiming the dead air at a pair of fraying chairs and a sofa arrayed around the TV.

      
Lavonda was as big as advertised, and she didn’t seem happy to see a long-haired white kid with darting eyes staring back at her from the hallway.

      
“Hi, uh, Lavonda?” I said, glancing over at the TV set. My timing was perfect --an ad for soap or some other household product winked back at me.

      
“Whatchuwant?” Lavonda demanded.

      
“Oh,” I said, smiling, “I’m an investigator for the Public Defender Service, and I wanted to talk to you about . . . OH MY GOD, is that
All My Children
?”

      
“Yeah,” she said suspiciously. I was already halfway home. “Okay, oh, I’m so sorry to bother you, then,” I said, just starting to lean back from the door, my eyes fixed on the TV inside. “But I missed it yesterday. Did Adam figure it out yet? I’m totally sorry to interrupt --I didn’t realize you watched.”

      
“She STILL ain’t told him,” she said, shaking her head in full-on disapproval of Adam’s serial deception.

      
“Oh my god . . . when he does . . . that is going to be soooo ugly!”

      
“Ummm-hmmm,” Lavonda said as she opened the door a little wider so I could see the TV.

      
“And Erica, she didn’t actually sleep with that guy, did she?” I had wasted an entire semester of college hours watching this dreck, and I’d found a way to make it pay.

      
“Nope,” Lavonda said. “He just thought she did.”

      
“Ooooooh, man.” I shook my head at the brilliance of the soap-opera plotters.

      
“Why’nt’cho come on in?” Lavonda said. “I ain’t got no one home; we can watch it together.”

      
“I’d be delighted,” I said, stepping gingerly into her living room and settling into one of the chairs, “if you’re sure you don’t mind.”

      
“Lemonade?” she asked.

      
“Next commercial break,” I replied, smiling as we settled in together.

      
Investing an hour of TV time in order to get a statement isn’t something that comes naturally to cops --they tend to do things on their schedule, expecting people to do what they say and what they want. Instead, I found some common ground with Lavonda --and as a result, I genuinely enjoyed my time with her. She was hilarious, and she had an encyclopedic knowledge of
All My Children
. And so we laughed and gossiped and sipped our lemonade through the whole show. And when it was over, as we sat back while the credits rolled, Lavonda turned and looked at me. “Now, what choo want me fo’ again?” she asked.

      
Once again I explained who I was, what I wanted, who I was working for, and why. And this time, Lavonda sat in her chair and told me everything --not because I had a gun or a badge or any legal authority, but because once she was convinced that I would listen to her and respect her, she was actually happy to talk.

      
Everyone will talk: you just have to know how to listen.

- - - -
 

I spent nearly three hours with Gloria. As it turned out, she saw the whole fight, and she wanted to help. Ninety minutes later, shifting uncomfortably on the sofa, my hand cramping from all of the writing, I had a twenty-page statement.

      
“It was self-defense,” Gloria declared. “Jaron only cut his cousin because he was getting beat senseless. He had no choice. That cousin was a troublemaker and a bully, and Jaron did the only thing he could do.”

      
Halfway down the last page, I scribbled down the final paragraph. “I have made this statement freely and voluntarily to David Feige, a lawyer from the Bronx Defenders. I know that Mr. Feige is Jaron’s lawyer, and I have had the opportunity to make any changes, additions, and corrections I desire. This statement is true, accurate, and complete, and signed freely by me.” After we read the statement over together, I had Gloria initial every page and sign and date the last page just under the certification.

      
Statements are valuable for one reason only: they lock a witness in. After a statement is taken, any deviation from it allows a lawyer to confront the witness with his or her prior statement. As a result, they function pretty much like testimony --convincing judges and DAs that a defense lawyer’s claims are substantive. After all, if you can produce a written statement made by the witness, the DAs and the judge know that a skilled defense lawyer will be able to keep the witness pretty much on that script.

      
Witnesses, of course, rarely believe themselves bound by prior statements, and being confronted with one at trial often produces hilarious (and occasionally convincing) explanations ranging from “I didn’t know he was an investigator” to “he made me sign it” to “that’s not my signature --I’ve never seen that piece of paper before in my life.” (It’s why in that last paragraph every investigator is trained to include his or her name, the client’s name, and the fact that we are representing the client. It helps later when people claim that they thought they were talking to the prosecutors.)

      
“I hope you can get that boy out of there,” she said, shaking her head. “He only did what he hadta do.”

      
“I sure will try,” I told her.

- - - -
 

      
I’ve had Gloria’s statement in my file for almost a week. I doubt it will be enough to get the DA to drop the charges, but I’m hoping it’ll be enough to get Jaron out of jail while we fight the case.

      
I’ve done my homework. Now it’s up to fate --to the luck of judicial assignment and mood. And so, as I walk through the doors to part F, I’m praying that I’ll see a friendly face looking down from the dais at the front of the courtroom.

      
It’s Adler. And that means anything can happen.

      
Judge Harold Adler is one of the completely unpredictable judges. With almost anyone else, I’d know exactly whether or not Jaron was walking out. With Adler it is a complete crapshoot. Gnomish and wild-eyed, with a scraggly salt-and-pepper beard and crazy, unkempt hair, Adler has moments of intense decency that are regularly followed by bouts of ferocious irrationality and utter implacability that can make him one of the least-pleasant judges to appear before. With some erratic judges, a patient student of judicial temperament can predict problem spots --Judge Birnbaum after supper is a good example --but with Adler, even though I’ve watched him for years, I still don’t have a clue as to what sets him off. Adler has done egregious things: denying motions without reading them, sending unprepared lawyers out to trial on other lawyers’ cases, or relieving lawyers from cases completely. But he’s also done things that are so thoughtful and decent that I sometimes wonder whether he has a split personality. Walking up toward the well of the courtroom, I watch him, carefully looking for some sign of which Adler is up there.

      
The first case tells me nothing. Adler barely looks up as he adjourns the case. Fishing in my dirty Eddie Bauer soft briefcase for Jaron’s file, I pull out Gloria’s statement and hand a copy to the ADA, fingering it nervously, hoping it will be the key to Jaron’s freedom.

      
A few minutes later, as the ADA assigned to prosecute Jaron takes his place at the table, Jaron is led out from the pens in the back. I make my application for release as calmly and quickly as possible, and holding my breath, I hand up the statement to Adler, searching his face for some signal about where he is.

      
As Adler reviews Gloria’s statement, I reiterate that the only other person in the room at the time of the stabbing says that Jaron acted in self-defense. Adler’s eyes dart around the room. This, I think, is a bad sign. I’m afraid he’s getting agitated.

      
“People?” he barks.

      
“Your Honor,” the assistant DA says, “the people are not dismissing this case.”

      
“Of course you’re not!” Adler snaps. “But have you seen the statement and do you have a position on bail?”