ARTICLE

Bumble in the Bronx
 
Banned from the courtroom and hounded by a difficult judge, I couldn't keep an honest client out of jail. The tale of a New York City public defender.
By David Feige

Fredrick Lynch is a little slow. He answers questions without fully comprehending their import, and he nods in agreement even as his brain sorts out the meaning of things. It can make a conversation with him feel strange and disjointed. But Fred is a good man, and kind. If you ask him questions slowly, and if he trusts that you're not trying to trick him, he can be thoughtful and occasionally even articulate.

A few years ago, Fred received a jury summons in the mail. "You are commanded," it read, "to appear for Jury Service at the Supreme Court of Bronx County." Few people like jury duty, and Fred was no exception. But the summons warned that failure to comply could result in a fine or incarceration, and Fred wanted none of that.

In November 1999, Fred was chosen for a jury. The charge was ugly. Two men were accused of raping a young woman. The trial lasted about a month, and after the closing arguments Fred and 11 other citizens of Bronx County retired to a cramped jury room to deliberate.

It soon became clear that the jurors were seriously divided. By the end of the day, no progress had been made, and the jury was sequestered. When the jurors returned the next day, they tried again. Still they couldn't reach a consensus, and again they were sequestered. Day three yielded little more than day two, and by then tempers were flaring. The jurors sent a "hang note" to the presiding judge, Justice Phylis Skloot Bamberger. "We are unable to reach a verdict," they wrote.

Rather than declare a hung jury, Bamberger tightened the screws: Try again, she told them. Another day of futile debate, another night of sequestration, and still no unanimity. Haggard from days of arguing, they trooped back into the courtroom. They were hopelessly deadlocked and begged to be discharged. But Bamberger wanted a verdict, and she had no intention of letting them go. Keep deliberating, she insisted.

Bamberger is not known for her temperance. She is professional, and very smart, but she can be overcome by her own surroundings. She seizes hold of issues that bother her and is quick to conduct inquisitions to get to the heart of them. She's industrious, too, but as with much else about her, what might otherwise be considered a strength is often transformed into a liability because of her relentlessness. Once she gets started, she's difficult to stop.

Back in the jury room, things started to get crazy. Bamberger's refusal to grant a mistrial was taking its toll. One juror refused to deliberate further. A group of jurors who wanted to convict deposed the forewoman. Scribbling a note to Bamberger—the tenth overall but the first from the "acting foreperson"—the mutinous jurors claimed that all the acquitting jurors, including Fred, were biased. Fred was accused of being partial because he had been incarcerated and because he allegedly believed that no one "should be incarcerated no matter what the charge."

Clearly, the deliberations had completely broken down. A verdict was now virtually impossible, and Bamberger spied a scapegoat: Fred. But rather than investigate his supposed bias, she latched on to the fact that he had served time. If Fred had been convicted of a felony, he would be ineligible by law to serve as a juror. If that were the case, it would seem that Fred's decision to show up for jury duty, not Bamberger's intransigence, was responsible for the impending mistrial. So instead of disbanding the jury, Bamberger began an investigation into Fred's background. Then she called my office.

Until recently, the old Empire Ice Company Building stood on 161st Street in the Bronx, just past the criminal courthouse. Downstairs, several pit bulls guarded a room full of ice freezers; upstairs, at the time of Bamberger's call, were the offices of The Bronx Defenders. A nonprofit organization with about 30 lawyers, The Bronx Defenders represent 12,500 people a year in criminal cases in Bronx County.

In 1997, at the age of 31, after graduating from the University of Wisconsin Law School and being a public defender in New York City for the better part of seven years, I helped start The Bronx Defenders. As the trial chief, I'm used to judges lodging complaints or asking for favors. The criminal justice system is overburdened, and, almost daily, someone is left without a lawyer. Overworked to begin with, few public defenders are eager to volunteer for additional cases. But getting along with judges, or at least being respected by them, is important for a defender's office. So when my boss, Robin Steinberg, got a call from Bamberger asking her to assign someone to represent a juror, she agreed, and came to talk to me. (With her, as with others I quote in this article, I wasn't taking notes, and am relying on my memory of the conversations.)

"Hi, babe," she said. "I know you're on trial and I hate to do this to you, but you gotta go over and see Bamberger."

"How come?" I asked.

"Some problem with a juror," she said. "I think she wants to hold him in contempt."

"What?" I said, my head snapping up. "What the hell is that?"

"Just put on a suit and go, okay?" she said.

Entering the courtroom ten minutes later, I was struck by an eerie absence of movement. Up at the bench Bamberger sat perfectly still. "Ah, Mr. Feige. Come up here," she instructed. "That," she said, pointing to Fred, "is your client." Fred was sitting alone on a bench in the first row of the courtroom. He looked confused and forlorn.

Bamberger gave me the short version. Her investigation had revealed that Fred had a felony record. He was thus ineligible to sit as a juror. For Fred to be on this jury, she reasoned, he must have lied either to her or to the commissioner of jurors. She had called my office because she intended to hold him in contempt. She would serve him with charges and order us back for a hearing.

I was stunned. I'd never heard of such a thing. In ten years of dealing with judges, I'd never been in a situation in which a judge planned to hold a juror in contempt. I didn't know what I was supposed to do, or whether Bamberger had the right to do what she said she was going to do. I looked over at Fred, trying to muster a reassuring smile. "Why don't you take a few minutes to explain the situation to your new client?" Bamberger said.

The rest of the jury returned. Bamberger declared a mistrial and sent them home. The defendants returned to their cells, and their lawyers wandered out of the building. Fred and I stayed behind. Bamberger's clerk handed me a piece of paper outlining a number of charges against Fred. Glancing at it, I felt a pang of fear. The charges ranged from lying on his jury summons to willfully misleading the court during jury selection. After speaking to Fred for just a few minutes, it was clear that he didn't have a clue about what was going on. In truth, neither did I. "The contempt matter is returnable December 20," Bamberger declared. December 20 was only two weeks away. I had little time to figure things out.

Walking back to my office with Fred, I wrestled with the basic premise of the charges—that Fred had knowingly lied his way onto a jury in order to subvert the judicial process.

"Look," I asked, "were you ever convicted of a felony?"

"I don't think so," he said. "I mean, I got some time, but it was for possession, not sale." This seemed like a perfectly reasonable explanation to me. Most of the people I represent have some mistaken but understandable notions about the meanings of legal terms.

"Did you want to be on a jury?" I asked.

"Not at all," Fred said. "I got that thing in the mail and I didn't want them to put a warrant out on me, so I went down. I figured that since they sent it to me, I had to go."

"Did the fact that you were in jail make it hard for you to send someone else to jail?"

"Nah. On my last trial, I found the guy guilty."

"Your last trial?" I asked, gulping.

"Yeah, right there in that same building, a few years ago."

Oh boy, I thought. Here we go.

December 20 came quickly, and when it did, I wasn't entirely prepared. The murder case I had been trying for the previous nine weeks was wrapping up, and I was devoting most of my waking hours to it. I wasn't particularly worried, though. Most judges understand the demands of another trial and make accommodations. Since Fred was not being held in jail, I didn't think asking Bamberger to postpone Fred's hearing until January would be anything other than routine. I was wrong.

Bamberger had left word at my office that there were more documents for me to inspect. In addition, the district attorney's office was considering whether to prosecute Fred for perjury. Frankly, given a choice between facing the D.A.'s office or Bamberger, I was hoping that the D.A. would take over and that Bamberger would agree to let them deal with the prosecution. The D.A. wanted some time to look into the matter—it was Christmas week, after all. Bamberger gave them two days.

The two-day deadline undid me. I became convinced that Bamberger not only intended to send Fred to jail but that she wanted it to hurt—she wanted to put him behind bars between Christmas and New Year's. By the usual conventions of court business, there was no good reason why the proceeding couldn't be postponed until January. I wanted to postpone it. Fred wanted to postpone it. The D.A.'s office wanted to postpone it. But Bamberger would hear none of that. December 22 would be judgment day.

Back at the office, I met with Fred and explained the situation. He was scared and confused. He still didn't understand what he had done wrong. "I just did what they told me to do, Dave," he said. "I didn't even want to be on no jury anyway. And now they're gonna put me in jail for it. That don't make any sense." There was nothing I could say to him. It didn't make sense. The case felt out of control. Bamberger was in inquisition mode, and it seemed likely that Fred would go to jail. I wracked my brain for ways to stop her.

Challenging a judge is a frightening and difficult prospect. There is not much you can do to judges and not much they fear. There are a few things, though, that they don't seem to like. One is being reversed by a higher court. The other is getting bad press. I decided to make provisions for both.

Getting a case reversed by a higher court isn't easy under any circumstances. And only in rare instances is it possible to seek redress from a higher court quickly. Nonetheless, working on the assumption that Bamberger would force us to proceed with the hearing, and that Fred would be found guilty and sent to jail, a colleague and I prepared an 18-page petition, In the Matter of David Feige ex rel Fredrick Lynch vs. Justice Phylis Skloot Bamberger. I made sure that someone would be standing by with our petition in the appellate court, ready to file, if necessary.

I also called a reporter I knew at The New York Post. I pitched him a story about a trial that ended with a juror spending Christmas in jail on Rikers Island because he didn't know a misdemeanor from a felony. The only thing that can save Fred, I thought, is a little publicity.

It's not easy being a judge. Every day, you are required to make decisions that have an enormous impact on the lives of the people who come before you. In case after case, canny advocates dodge and weave, spinning stories crafted to influence your decision. It's hard to get a straight answer from anyone. To make matters worse, no one pays much attention to you until something goes wrong, and then the media attack. Because most crime reporting focuses on judges who are "soft on crime" rather than those who are overly harsh, it's tempting to play things safe. As a judge I know once said, "Like they tell you in judge school, no one ever wound up on the front page of The New York Post for setting high bail." Despite long judicial terms—or, in the federal system, life tenure—many judges go out of their way to avoid the bad press that often comes from tilting toward the lenient side of the law.

By calling the Post, I hoped to trade on the flip side of this phenomenon. In the eyes of the public, not all defendants deserve to be keelhauled. I thought Fred's case could evoke some compassion—maybe even outrage. Besides, I hoped, the prospect of bad press might scare Bamberger off. So I showed the Post reporter the documents on Fred's case. I explained to him that I was convinced that Bamberger wanted to put Fred behind bars for the holidays, and he bit.

Three days before Christmas, Fred and I returned to Bamberger's courtroom. We brought with us the reporter and a stack of copies of the appeal we were prepared to file. I made sure that the reporter displayed his press credentials and sat in the middle of the front row. Before the proceedings began, a court officer asked the reporter to identify himself. His answer sent the officer scurrying up to whisper in Bamberger's ear. She just glared.

"Are you prepared to proceed?" she asked the D.A. Then she turned to look at me. After a moment, her gaze shifted to the reporter. I felt my jaw tighten. The assistant D.A. spoke up: "Your Honor, if I may, the district attorney's office has opened up a grand jury investigation into this matter." I felt my jaw relax. Though a grand jury investigation is normally bad news in a situation like this, the D.A.'s decision to take over the case made it likely that Bamberger would back off, or at least wait to see what happened with the D.A.'s case. Sure enough, as soon as the D.A.'s office asked to postpone the case until January, Bamberger agreed.

Wrung out but relieved, we returned to my office. Now that the case was before a grand jury, I was back on familiar ground. I arranged to surrender Fred to the D.A.'s detective investigators outside Bamberger's courtroom on January 6. I figured that at the arraignment the next day, Fred would plead not guilty, I'd get him out of custody, and we'd start the process of fighting a regular criminal case. One night in jail, and then he'd get an eventual dismissal or acquittal.

I was wrong again.

On January 5, the day before he was supposed to surrender, Fred was arrested for possession of marijuana. He left me a voice mail message from central booking, but by the time I checked my messages the next morning he had already faced a judge. Normally, a marijuana charge is disposed of with a fine or community service, but Fred had gone before a notoriously harsh judge, Megan Tallmer. Instead of releasing Fred or offering him a plea that would allow him to avoid imprisonment, Tallmer set bail at $2,500. This was very bad news. A few hours before Fred was supposed to surrender on the D.A.'s perjury charges, he was already on his way to jail. Meanwhile, the Post reporter called to tell me there was a photographer on the way to the Bronx to get a picture of Fred. The story was now likely to make things worse for Fred, not better, and I wished that the reporter would forget the whole thing.

I scrambled to Tallmer's courtroom to try to get Fred released, so that he could surrender as promised. I explained to Tallmer that Fred was scheduled to turn himself in on another charge, and I asked her to lower his bail on the marijuana case so that he could afford to do that. After some urging, she agreed. Within the hour, Fred's family had posted $750 to secure his release, and he was back in my office preparing to surrender. Soon after, he and I walked back to court. Fred was nervous. On the fourth floor, outside the courtroom, the photographer snapped pictures. The first few shots were of Fred walking into the courtroom, still a free man. By the end of the roll, Fred was in custody.

Inside the courtroom, Bamberger kept the proceedings brief. Since the D.A.'s office was going to prosecute, she decided to hold off on her own prosecution for a few months to see what came of the D.A.'s effort. Bamberger seemed calmer than usual. To my surprise, she told me that she wouldn't oppose my request that Fred be released on his own recognizance. He had always come to court, she said, and she couldn't see a reason for locking him up. I said nothing about the recent marijuana case.

The next morning all hell broke loose. The Post ran its story about Fred. It quoted me as saying that Bamberger blamed Fred for causing a mistrial (which was true), that the judge and prosecutors were making an example of him (also true), and that they were doing so to frighten anyone who might disagree with the prosecution. I had been misquoted on this last point, though I had suggested that the practice of jailing jurors who were lobbying to acquit a defendant might have a chilling effect in the jury room.

The timing of the story was terrible. Just when it seemed that I had a chance to get Fred out of jail so we could fight his case, the story ran, the Bronx judiciary closed ranks, and the usually collegial courthouse turned on me.

The next step for Fred was night court, and by the time Judge Harold Adler assumed the bench there, Fred's fate was sealed. Adler had the Post clipping right up on the bench with him. The D.A.'s office was no longer interested in working out a bail package that Fred's family could afford. The assistant D.A. excoriated me for failing to disclose to Bamberger that her office was also prosecuting Fred on the marijuana case, and she asked Adler to set bail at $1,500. Adler set $3,500 instead. He also increased the bail on the marijuana charge from $750 to Tallmer's original $2,500. Tallmer had evidently told Adler that she wanted her original bail reinstated. She was upset, I gathered, that I hadn't told her what kind of case Fred was surrendering on—a case that could end up in the newspaper. All told, Fred would have to post $6,000 to see freedom. It was far more than he and his family could afford.

One of the most unpleasant realities of the criminal justice system is that poor people often plead guilty to crimes they haven't committed just to get out of jail. If you are poor or can't afford bail, you have to fight your case from behind bars; if you plead guilty, you often serve a sentence that keeps you incarcerated for less time than you would spend if you were fighting your case. This odd predicament occurs all the time. Since Fred couldn't raise $6,000 in cash, he would sit in jail until his case was resolved. On the misdemeanor marijuana charge, that could be three or four months. On the perjury charge, it could take more than a year. So when Fred returned to court several days after his arraignment, I had to have a difficult talk with him.

I went back into the pens, a series of barred cells behind the courtrooms where Fred was being held. "Fred, my friend," I began, barely able to control my anger, frustration, and guilt. It was my overaggressive strategy that had backfired, my fault that he was sitting in a jail cell. "I am so, so sorry..."

"That's okay, Dave," he said. "I know you're fighting real hard for me. It just seems like those judges are pretty mad."

"Yes, they are," I said. "Look, Fred," I continued, "I know you didn't lie your way onto a jury. And I know you misunderstood the jury questionnaire. And I believe in my heart that if we fought this case, we'd eventually win. But the grand jury is ready to vote a felony charge against you that carries a minimum of two to four years in state prison, and the judge is going to hold you on this stupid weed case anyway, so I'm not exactly sure what to do here. It's almost like you do more time by fighting it. The D.A.'s office will offer you 90 days in jail to cover the felony perjury charges and the weed case, and I think if you plead on those we can work it so that Judge Bamberger has no chance to give you any more time."

Fred was shaking his head back and forth. I felt like I was going to cry. "On 90 days, you do 60, so we're talking two months for everything," I said.

"And then it's over?" he asked.

"All over."

Fred looked at me through the bars. "Take it," he said.

As his sentence neared its end, Fred and I appeared again in Bamberger's courtroom. Her contempt order was still outstanding. Fred was led handcuffed into the courtroom, past the box where he had previously sat as a juror. Bamberger withdrew her contempt order, finally ending the matter. "I asked that you be here," she explained to Fred, "because I wanted to present to you the enormity of the calamity that your failure to disclose the information presented here." She berated him for a few moments longer, and then she turned her attention to me.

"Now, Mr. Feige," she began, and our eyes locked. In the previous proceedings, she had tended to look away, as if my existence in her courtroom was too much for her to bear. But now she was standing behind the bench, looking down at me in a pose that was part schoolmarm and part Southern hanging judge. She lectured me on the duty of an institutional defender. She reminded me of my obligations to the courts as well as my clients, and she told me that she didn't think she could be fair to my clients in the future because of what had transpired between me and her. She advised me that I should never practice before her again.

When Bamberger started her lecture, I thought she was looking for some way to goad me into being contemptuous so that she could send me to join Fred in jail. But as she continued to talk, it dawned on me that I was about to be banned from her courtroom. I held her gaze while she talked, and weighed my options. It is both a mark of shame and a badge of honor to be banned. Some of the most aggressive trial lawyers I know have been barred from one courtroom or another. At the same time, being banned signals an inability to play well with others—an important skill for an institutional defender.

As I listened to the proclamation of my banishment, part of me wanted to defend myself and my honor. Another part of me counseled quiet. When my chance to respond came, I decided to speak gently and with reserve. Even a vigorous and convincing defense, I figured, would fall on deaf ears. And the truth was that never again appearing before Bamberger would not be a loss to me or my clients. I chose to offer no defense or explanation for my actions. I told her that her capacity to recognize her inability to be fair to me confirmed my belief in her judicial integrity. I accepted her ruling that I be banned from her courtroom. When I finished talking, Fred just looked at me, nodded once, and was led, still cuffed, from the room.

Not long after being banned, I appeared on unrelated business in the courtroom of Judge Max Engels (not his real name). Engels's court functions as a funnel, sending trial-ready cases to available trial courts. When an incarcerated client has spent 14 or 15 months killing time in jail waiting for a trial, his case is likely to pass through here.

That morning, when I arrived, I was doing what public defenders so often do: praying to the gods of judicial assignment. "Please," I thought, "send me to a decent judge. I've got a tryable case here, just give me someone fair."

"Mr. Feige!" I heard Engels call. "You ready?" It was almost a taunt. "That's not a question," he clarified, smiling. "You are ready." He wagged his index finger, beckoning in a vaguely menacing way. "C'mon up here."

"One of you lovely people want to join me?" I asked the crowd of assistant district attorneys chatting with one another at the prosecution table.

"No," Engels said, looking at me. "Just you." He was still doing that crazy thing with his finger.

"Yes, Your Honor?" I said in the supplicant's tone that tends to take over when I'm having a tête-à-tête with a judge.

Engels leaned in, his voice hushed but urgent. "What the fuck were you thinking?" He accentuated the word "fuck" like it was a punch. I just raised my eyebrows. "Didn't anyone ever tell you that you don't shit where you eat?"

"I've heard that, Your Honor," I said evenly. "And I'll try to keep it in mind."

"Look," he said. "I'm just trying to help you. You're a good lawyer. You want to stay here, right?"

"Yes, Judge."

"Then watch yourself, and for God's sake think before you do something stupid, okay?"

"I'll try," I said, and departed. As I left the courtroom, I looked over my shoulder. Engels was shaking his head.

Several months later, the two men that Fred had voted to acquit in Bamberger's courtroom were retried. This time, they were found not guilty. Twelve new jurors seemed to have entertained the same doubts that Fred had. The jury was out for fewer than four hours.

As for the man whom Fred voted to convict the first time he improperly sat as a juror, he remains incarcerated, despite Fred's felony conviction. A Bronx judge ruled that the presence of an unqualified member on a jury does not itself necessitate a new trial. Bamberger's alarm about Fred's felony status appears to have been unwarranted.

Less than a year after he was released from jail, Fred received another jury summons.

David Feige is the trial chief of The Bronx Defenders. He has written for The New York Times Magazine and Slate, and is a commentator for Court TV.

Intermittent musings of a pedantic public defender.