INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (6 page)

      
I spent a lot of time at Callahan’s.

      
Among the experienced attorneys who occasionally bought the younger lawyers drinks, Paula Deutsch was my favorite. A hard-drinking, brilliant true believer, Paula was the kind of elegant woman who, despite her graying hair and mild lisp, had the sultry sexiness of a librarian in a skin flick. She tried some of the toughest cases in the office while seeming to love both the work and her clients. One night, after a particularly rough day, an hour or two after the turkey, Paula told me something I’d never forget.

      
“Thing is, Feige,” she said, leaning forward, shaking her head, and fixing me with an urgent glare, “you gotta lawyer
for you
.”

      
The sentiment seemed strange coming from her, and I must have looked at her blankly, because she smiled bemusedly and continued.

      
“If you’re doing this work because you think people are gonna love you, or appreciate you, or admire you, you’re fucked. Your clients, they got no reason to appreciate you, and if you think they’re gonna just sit up one day and realize you’re the best lawyer they’ve ever had, you better just hang it up right now. And prosecutors --they think you’re shit on a good day, and that ain’t never gonna change. And judges . . .” Paula made a whistling sound as she exhaled. “You can be as smart and persuasive as you want. You can bring all that beautiful passion and that big brain of yours to bear every single day. They ain’t gonna care --they’re still gonna fuck your client anyhow. So if you’re working this job looking for appreciation, you’re never gonna last.” She paused for a second to parse my distraught look. “Feige,” she said, leaning closer, trying to convey that there was a point to this lesson in tough love, “it’s gotta come from here” --she clapped my shoulder and gave it an almost maternal squeeze --“you gotta know deep down that this is the most righteous work there is, that even though we lose and lose and we get creamed every day, even though we watch them take our clients and haul them off to jail, you have to wake up the next morning and fight your heart out, looking for those few times we can stop it. Not because you’re looking for appreciation, not because you want someone to say, ‘Thanks, Feige, you saved me,’ but because, at the end of the day, no matter what anyone says, you know that what you’re doing is right.”

- - - -

      
I actually got felony certified several months after I started sneaking felonies. By that time I’d already tried and won a few bench trials --an innocent kid swept up in the mayhem of the Crown Heights riots (I called his priest as a character witness) and the front man in a turnstile double-up (“He just slid in behind me --I don’t even know him” was his legitimate defense). I’d also dabbled in the terrifying world of the misdemeanor jury trial. In a DWI case, I began my opening statement by saying, “It was a dark and stormy night. . . . I’ve always wanted to start an opening statement with those words, and now I have. But you know --it’s actually true.” It was the road conditions, I argued, not the alcohol that caused the car to slide. The jury acquitted in fifteen minutes.

      
My first big loss was a young kid named William Valentine. William was short and squat and handsome. A light-skinned Hispanic with Schwarzenegger’s square jaw, William possessed the toned physique of an aerobics instructor --which, in fact, he was. A huge hit at a local Brooklyn health club, William was doing well in the world until he was charged with rape.

      
Under New York law, there are two statutes that cover the acts most of us imagine as rape. One, called “rape in the first degree,” is a class B violent felony. It is defined as “sexual intercourse by forcible compulsion” and is punishable by up to twenty-five years in prison. Almost any defendant convicted after trial of what the system calls “rape one” is likely to spend a few decades behind bars. There is another sex crime that also covers rape, though. It’s called “sexual misconduct.” Technically defined as “sexual intercourse without consent,” the crime, at first blush, seems different from rape in the first degree. It’s not. As it turns out, lack of consent is actually defined as resulting from “forcible compulsion.” Nevertheless, sexual misconduct is a class A misdemeanor, punishable by a fine, community service, or up to one year in jail. Rape in the first degree and sexual misconduct are the same crime --the distinction exists solely to give prosecutors discretion in charging. In a cruel twist, however, defense lawyers cannot argue to a jury that they should convict a client on the misdemeanor rather than the felony. The charging decision begins and ends with the prosecution.

      
Linda Liotta was the kind of Italian Catholic girl most Jewish boys dream about. Long and lithe, with pale skin and dark eyes, she came from the kind of tight-knit, restrictive family that still thrives in Brooklyn neighborhoods like Dyker Heights, Bay Ridge, and Bensonhurst. Linda could be fiery and independent, and seemed to yearn for a life away from her family. She moved out just after her nineteenth birthday. And for her first weekend alone, she called her aerobics instructor and asked him out on a date.

      
They had a good dinner by all accounts, chatting amiably, going for a short walk, and driving around near the boardwalk in William’s car. They never went out again, though Linda continued to take William’s classes --sometimes twice a day.

      
The phone calls started about six months later --Linda asking to talk to William, leaving messages two and three times a day. She still took his classes --as many as eight or ten a week, standing right in the front of the room, often dead-center. Club management got concerned about the situation when the calls and messages started to interfere with William’s class schedule, and eventually, they asked her not to phone so much. William had another girlfriend by then, someone he was serious about, and she thought Linda’s calling was distracting and unhealthy. Club management agreed, but the calls continued. There was a meeting, and eventually Linda quit the club.

      
It was nearly two years after their only date that Linda Liotta told the police, for the very first time, that William had raped her. Despite the two-year-old complaint, the total lack of physical evidence, and Linda’s odd behavior at the health club, the police went ahead and did what police do --they arrested William.

      
This wasn’t surprising. With the advent of Special Victims Units and domestic violence prosecutors, most anyone able to enunciate the word
rape
can almost always get someone else arrested. Sometimes, of course, there is a real basis for the arrest, but there are also plenty of people manipulating the system. Worse is that oftentimes there is minimal investigation beyond the allegation itself. Delayed outcry is explained away, lack of physical evidence is taken as a nonissue, and problems with memory or an inability to recall details are excused under the theory that rape is such a traumatic experience that the usual rules don’t apply. Whether all of this is a good thing or a bad thing depends on which side of the accusation you’re on. For a belated accuser with vague memories and no physical corroboration, it’s great. For someone surprisingly accused of a two-yearold crime, faced with losing his livelihood, job, girlfriend, and freedom, it’s pretty far from great. And for prosecutors unsure of what or whom to believe but required to take a rape allegation seriously, the complicated cocktail of facts can lead to baby splitting --a misdemeanor rape prosecution, which is precisely what happened to William.

      
William’s account differed substantially from Linda’s. They had driven around for a while, parked near the boardwalk, and started making out in the car. The making out led to more significant making out and then, eventually, to consensual sex. But in Linda’s version, after a little making out, William had climbed over from the driver’s seat, tilted her seat back, and raped her.

      
William was a wonderful client: he was sweet, prompt, thoughtful, and kind. Though he was not particularly bright (he did, after all, make his living jumping around in a tight-fitting outfit in front of a room full of sweating women), he was astonishingly considerate and willing to listen. “You never know what can happen at a trial,” I told him. But William was utterly resolute. He wasn’t going to plead guilty (he was offered three years of probation) to something he didn’t do --particularly not a rape. He wasn’t a sex offender, and he wasn’t going to say he was just because he was scared of jail. He’d take his chances.

      
After cross-examining the prosecution’s expert in rape trauma syndrome --the DA’s attempt to explain why someone wouldn’t report a rape for nearly two years --and after delivering a powerful summation, I felt good. The jury may have been out for three days, but I had gotten precisely the jury I wanted --six men, no women. And so, as I rose to face the judge, to take the verdict that had left me sleepless for nearly fifty hours, I believed that William would be acquitted. I believed, after all, that he was completely innocent.

“How do you find as to the first count of the information, charging the defendant with sexual misconduct?” asked the clerk of the court.

      
There was hardly a pause: “Guilty,” said the jury foreman simply. My shoulders slumped, William’s girlfriend gasped, and Linda’s parents, who had come to comfort her, harrumphed with satisfaction as Judge Michael Gary ordered that William be hauled off to Rikers Island.

“Defendant is remanded,” he said before I could even open my mouth.

      
And as the words tumbled out, the burly court officer behind William seamlessly slipped the cuffs over his wrists, grinding them home --the ratcheting sound of the metal etching itself into my mind like an acid-tipped brush searing a copper plate.

      
I’d made one of the worst rookie mistakes there was. No one had bothered to tell me that no one in his right mind picks an all-male jury in a rape case. The reality is (or at least I believe) that when it comes to rape most men spend their time in the jury room trying to validate themselves by demonstrating how sensitive they are to the victim. Consequently, men are uncomfortable acquitting someone on a sex charge, and this is acutely true with an all-male jury. It takes a woman in the room to corroborate their skepticism, to make their disbelief okay.

      
They took William away, and outside in the wide hallway with the ugly brown linoleum and clanking half-painted radiators, I sobbed. I knew abstractly that as a public defender, at the end of the day, depending on whether I did my job well or not, my clients would either go home or be carted off to jail. And I knew that no matter what happened to my clients that I would go home to my little apartment on the Upper West Side, safe and sound in a life full of good choices.

      
But what I didn’t know until that day was how devastating William’s loss would feel to me, or how, as I watched those court officers take him down the hall, my throat would constrict and I would feel as if someone had just dropped an elephant on my chest, and that I would think of William Valentine every single day he was incarcerated. I had had a chance to speak on William’s behalf, and what I had said and done in that capacity had actually meant the difference between life and whatever it is that you call a year behind bars --and I had blown it.

- - - -

      
And along with the specter of Angelo Tona, it is the horror of blowing it, of making a mistake and then having to watch someone led off into the deafening brutality of prison life, that finally gets me out of bed and into the shower this cold winter morning.

      
It is now nearly 9:00 a.m. No matter how hot I make the shower, it cannot wash away the ghosts. But there is no more time to think about William. It is time to get dressed and head north yet again, to the battlefield, to the apocalypse, to the end of the world.

      
To the Bronx.

T w o

9:22 A.M.

      
Someone pissed on my doorstep. Because my apartment building is slightly recessed, it provides excellent cover for the inebriated Yuppies who stagger home from the bars down the block late at night. The result: several mornings a week I’m greeted with a little olfactory premonition of the day to come. I step over the little puddle and into the flow of businessmen in expensive English bench-built shoes flooding toward the subway station and the cute new moms carrying yoga mats, ducking into the Bikram yoga studio a few doors down.

      
My neighborhood is affluent by any standards, with even small apartments commanding prices suburbanites might pay for a freestanding structure and a lawn. There are four nice bakeries within a block or two --offering decaf cappuccino and a selection of baguettes and croissants that would make a Frenchman envious. At the Tasty Bakery on the corner, the friendly Slavic woman is already pouring my decaf by the time I order. Once I cross the river, the only places that have decaf are the Dunkin’ Donuts and the gas station. The Bronx is not a decaf kind of town.

      
Weaving my way up Broadway, I pass the fresh fruit display in front of the Fairway grocery store --plums and grapes and nectarines and strawberries shimmering red and purple, a world of fancy produce just a block away. My car is wedged into a spot on Seventy-fifth Street --a “must be out by 11:00 a.m.” spot. Those of us who can’t afford the several hundred dollars a month it costs to garage a car in Manhattan study the intricacies of New York City street-parking regulations like the Talmud. During my career I’ve been late for court, late to dinner, late to the movies, and late to parties, but I’ve never risked missing a parking spot deadline.

      
Heading toward the car, coffee in hand, I think hard about Cassandra. There are people you meet in my job who are so helpless, so hopeless, and so sad that it slices your heart up, people whose stories are so dire and desperate that they stay with you --a wound that never heals. Cassandra is one of them.

      
Cassandra is big and round and overweight, with a puffy, moon-pie face. Her eyes are set deep, and they betray no expression at all --ever. She speaks in a halting, childish monotone with the kind of bluntness that suggests she has long since given up trying to hide anything. Cassandra has just about all the problems a person can have --she’s drug dependent, deeply depressed, homeless, suicidal, and mentally ill. To look at her is to see someone utterly lost.

      
I first met Cassandra in 1997, when she was arrested for an attempted arson that was as much a suicide attempt as anything else. It took all of two minutes to figure out that like many people, Cassandra had needs well beyond what the criminal justice system could handle. So while she sat in jail, I started the long and complicated process of trying to get her into a residential mental health program.

      
Things went well at first. With the help of a social worker in the office, I found a suitable program. Cassandra pled guilty to reckless endangerment (arson convictions usually disqualify someone from residential mental health programs) and was released. More than six months went by without a hitch. But then, as they so often do with Cassandra, things began to unravel.

      
Cassandra got herself thrown out of the program. We got them to give her another chance. She got ejected again. We tried a different program. She didn’t last there either. This cycle continued for more than a year as we went through program after program, finally finding a place that she liked and that could deal with her. For a few years, everything was stable.

      
Until I got the call.

      
“Hello . . . , David?”

      
I knew her voice immediately.

      
“Cassandra. Hi,” I said. “How are you?”

      
“I’m fine.”

      
“Where are ya, darling?”

      
“Uh . . . I’m at the precinct.” She delivered this news with her usual lack of inflection.

      
“Sweetie, why are you at the precinct?”

      
“I robbed a taxi,” she said plainly.

      
“Okay, okay, Cassandra, I want you to listen really carefully.

      
You know the police are going to arrest you, right?”

      
“Yes, David. I know.”

      
“Okay, I understand what you did, but I don’t want you talking about it right now. Do you understand?”

      
“Yes, David.”

      
“Okay, now I’m gonna come right down there, and then I’ll be there again for you when you get to court, okay?”

      
“Yes, David.”

      
“I want to talk to the policeman now. Can you put him on the phone?”

      
“Okay.”

      
I learned from the detective that Cassandra was charged with using her index finger to try to rob a livery cab driver. I told the detective that I’d be her lawyer and that he should not question her, and to call me if there was going to be a lineup.

      
When I saw her later, after her arraignment, I asked her why she’d done such a silly thing.

      
“Well, I did it once before and it worked,” she answered simply.

      
“But, sweetie, why try it in the first place?”

      
“Oh,” she said. “I wanted money --I was feeling depressed and sad and I wanted to go buy a little alcohol or maybe some crack or something, to make me feel better.” She nodded and raised her eyebrows, and shrugged as if apologizing for her depression.

      
In junior high school civics classes we’re taught that all Americans have a fundamental right to a speedy trial. In fact, big-city justice often means epic delays and months in purgatory --which in Cassandra’s case was more like hell. She was kept locked up in jail for almost a year. It was a year punctuated by court dates designed only to momentarily release her so that we could drive her to interviews with psychiatric programs around the state. This time, no one would take her, and so at the end of the day we’d surrender her back to the judge, who would put her back in jail.

      
As his final official act at the Bronx district attorney’s office, an assistant district attorney agreed to let Cassandra withdraw her guilty plea to a felony and plead guilty to a misdemeanor. He knew how hard we’d been trying to find her a program, and he felt bad that she was sitting in jail because there were no programs willing to accept her. There was no weapon, and no one was hurt, so he figured the year she had already been in jail should suffice as a sentence. The plea deal meant that Cassandra went free again. Over the ensuing years, I saw Cassandra regularly: acting as her post office box when she was homeless; storing her eighty-nine-dollar check (her share of an uncle’s estate) until she could collect it; trying, as often as possible, to provide a stable, reliable place where she could feel welcome.

      
And then, just three weeks ago, Denise, one of our social workers, caught me at the door. I was coming back from a harrowing day in court --I’d just had a client handed the maximum sentence after he’d been acquitted of all the most serious charges in his case. The judge could have given him probation --instead he gave him up to fifteen years.

      
“Guess who’s here?” Denise asked.

      
“Let me guess.” There was something in her voice that gave away the answer --a schoolmarm’s disapproval of a disappointing pupil. “Cassandra?”

      
“Lorraine let her sleep in the interview room,” Denise said with a frown.

      
“Okay, good,” I murmured, lugging my trial bag up the stairs. “Let her sleep for a while and keep me posted.”

      
“Only because she’s yours, David,” Denise declared in a chiding tone. “She’s homicidal and suicidal, with attempts as recent as yesterday, and she’s intoxicated. If she were anyone else’s, I’d have already called the crisis team. But she said she wanted to talk to you, only to you, and she doesn’t want to go to the hospital --at least not one where there are any men.”

      
“Yeah. That’s a thing of hers --not really a big fan of men.”

      
Three hours later Cassandra was awake. The smell in the interview room was almost unbearable. Coming down the stairs, I could see her through the glass of the door before I ventured inside. Her hair was matted and nappy, and she was bundled in three mismatched coats.

      
“Sweetie,” I said, “I thought we sent you to detox?”

      
“Yes, David.” Her big brown eyes were glassy, and it looked as if she’d lost some weight. Her face, usually soft and round, had hardened into something more akin to an oblong.

      
“Well, what happened?”

      
“I didn’t stay.”

      
“Well, why not?”

      
“They kicked me out,” Cassandra explained, her voice dropping --a descending piano scale, every word one note below the last.

      
“I understand that, darling, but why did they kick you out?”

      
“I didn’t like them,” she said, nodding. “There were men in there.”

      
“And you don’t like the men.”

      
“Riiiiight.” Cassandra nodded softly. “They look at me . . . you know.”

      
“I know, darling. I know.” Since she watched her father murder her mother when she was a little girl, men had been a complicated issue.

      
“I’ve been sad.” Cassandra nodded again, as if it was news to her too.

      
“And what have you been doing about that?”

      
“I tried to kill myself --get AIDS, lie in the street. It didn’t work.” She said all this matter-of-factly, as if describing last Sunday’s weather.

      
“Honey,” I asked, “why were you trying to get AIDS?”

      
“I thought they would take care of me then,” she said blandly. “I had sex with a man --he had AIDS. I told him not to use a condom. Didn’t work. I layed down in the street too --thought maybe a car would run over me. It didn’t --they were nice. The police. Took me to the hospital.”

      
“Sweetie, I think we need to get you back into a program --I think you need someone to look after you a little more than I can.”

      
Cassandra’s face should have betrayed some emotion. Instead it was blank.

      
“I know, David,” she said flatly. “Not today though.”

      
“Honey,” I said, trying to sound firm, “you know you can’t just show up and crash here.”

      
“I know, David, I know.” She nodded gravely. “But I been on the streets for a while, and I was real tired, you know?”

      
“I know, sweetie, but we’re going to have to do something about this.”

      
The odor was nearly intolerable --opening the door, I could see some of the kids from the youth program in the next office wrinkle their noses, look up in alarm, and retreat down the hall.