Indefensible - Chapter 1: Introduction


I TOOK MY FIRST HOMICIDE on a Saturday night. It was 1994, at the tail end of a year of almost incomprehensible criminality. In the preceding year, 1,927 people had been gunned down, stabbed up, or beaten to death in the streets, slums, and parks of New York City. More than 430,000 - a number exceeding the population of Atlanta, Georgia - were victims of a serious crime.


Of the five boroughs of the city of New York, Brooklyn contributed nearly 40 percent of the murders: 724 in one year - an average of two every single day. People were being shot at in Brownsville, bludgeoned in Bed-Stuy, flattened in Flatlands. There were certain stoplights in East New York that were reputed to be so likely to produce a gunpoint robbery or carjacking that the common practice was to blow right through them. Crook-fear racked the city, and judges, prosecutors, and the New York Post made careers out of tough-on-crime posturing.


The day I reached for that case, I had been a public defender for fewer than three years. Legal aid lawyers weren't actually supposed to touch homicides; murder cases were generally reserved for fancier appointed lawyers from what was known as the "homicide panel." But with the glut of bodies, no one was paying too much attention. Besides, there were always several murder cases kicking around the office, handled by grizzled veterans, confirmed in their seniority by the fact that they had homicides.


I still remember seeing the thin sheaf of white paper in the wire basket. Gillian Sands. First arrest. Murder in the second degree.


Glancing around, besotted by my own ambition, I picked it up. Typed on the onionskin page in the blotted script of the computer printer was the single sentence that implied a potential life sentence: "The deponent is informed by the defendant's own statements that, at the above time and place, the defendant did stab Rodney Sands repeatedly about the body with a knife, causing Rodney Sands's death."


That was it. One sentence. Knowing then what I know now, I'd never have touched it.


Gillian couldn't stop crying. She was guilty. She told me so right off the bat, insisted on it really.


"I could just plead guilty now," she told me. "It's okay. Whatever happens, I deserve it." Gillian had a big bruise on her cheek, her eyes were red and swollen, and she had a look of utter defeat on her face. "I killed him. . . . I loved him, and I killed him. It was all my fault," she said, sobbing. "I couldn't help it - I'm so sorry. He was beating me - it's all my fault."


"Umm, Ms. Sands." I'd hardly uttered a word before her confession. "You can't actually plead guilty now anyway. This proceeding is just to determine whether you stay in jail or get to go home. And besides, no matter how bad you feel right now, I'm not clear that pleading guilty is the right decision - especially if you were being beaten up."


"It doesn't matter," she told me flatly. "I already told the police I did it. It's all there on the videotape."


Things had been good at first, Gillian told me, at least until she got married. Then the hitting started. She'd go to work each day, washing and braiding hair, doing nails in the painstaking French style favored by women in the Marcy projects where she and Rodney lived, and come home, happy to see her man, happy to hand him the clump of cash she'd made that day in tips.


"Hmm," Rodney would say, looking at the money. They'd have dinner, and then, as predictable as rain, his fist would slam down on the table or his booted foot would smash into her shin or he would smack her face, her ear, the side of her head - hard. It got worse fast; within months of her wedding, Gillian, who still didn't understand how the fights and violence escalated so quickly, began to arrive at work with bruises, welts, and, at least once, a fracture or two.


On the night Gillian stabbed him, Rodney had chased her into the kitchen. He was drunk and swinging; Gillian saw a knife on the counter, picked it up, and poked him with it. Then she stabbed him again, nicking an artery and killing him.


As guilty as Gillian thought she was, and as much as she was ready to be punished for what she'd done, the more I listened to her, the more convinced I became that under the law of selfdefense she might actually be innocent.


By the time I emerged from the interview booth over an hour later, excitedly flipping through a sheaf of notes, I was convinced. It was by far the most comprehensive interview I'd ever done with a client. And as I wandered back into the garishly lit courtroom, tiptoeing around the crowded bench, sitting down to compose my thoughts, in those moments of distilling the complicated narrative of Gillian's life into a persuasive argument for her release, I'd never felt as alive, as terrified, or as righteous.


"Is it true you took a murder?" one of my colleagues asked suspiciously. Short and pretty, with a wide, expressive face, Lisa was a great lawyer but a huge rule follower. I just nodded quietly, concentrating on doing the best bail argument I'd ever done. "Eddie is gonna fucking kill you," she said.


"It's just for arraignments - and Liz was busy anyhow," I explained rather unconvincingly.


"I'm just saying. You're fucked. Eddie already thinks you sneak cases."


"Eddie knows I sneak cases, Lisa. Eddie respects me because I sneak cases. Eddie doesn't want pussies - he wants people who yearn, people who long to fight. He'll get over it." "Whatever. I just don't wanna be you come Monday," Lisa said, shrugging. She was trying to protect me. Lisa did that a lot.


Like several other people in the office, Lisa always wanted to save me from myself - often with good reason.


"People versus Gillian Sands," chimed a court officer, handing a small stack of paper to Judge Marty Karopkin. "Charged with murder in the second degree."


"David Feige, F-E-I-G-E, of the Legal Aid Society appearing on behalf of Ms. Sands," I declared boldly.


The prosecutor twisted his head around to glance at me. His face was quizzical: Feige's doing a murder?


"Dino Lombardi on behalf of the people," the prosecutor said, proceeding to serve the formal notices required at every arraignment.


Lombardi was a good man. Big and round and oozing a kind of Brooklyn smooth, Dino was the kind of thoughtful, laid-back prosecutor it was a joy to have a case with. Unlike most of the people in his office, Dino seemed to viscerally understand that the line between victim and perpetrator was always fine and not always clear. Dino didn't get exercised about much and was respected as a guy who'd do what he thought was right, not just what his boss told him to do.


"Your Honor," Dino said slowly, "the defendant admitted stabbing the victim, causing his death. This being a homicide, I'm required by my office to ask for remand." To remand a defendant means to hold him or her without bail - no amount of money will get them out.


Bail applications are usually short and sometimes nonexistent in murder cases. No judge in his right mind is ever going to let someone charged with murder out, and it is not uncommon for lawyers facing a particularly nasty judge to reserve a bail application all together, preferring to make the argument once additional investigation is done and there is a different, more reasonable judge. That's why I figured there'd be little harm in my doing the arraignment in the first place - everyone gets held without bail, so even if I screwed up, the results would be indistinguishable from having done everything right. And who knew? Maybe I'd get lucky.


"Anything else, Mr. Lombardi?" Judge Karopkin asked. "No, Judge," Dino said firmly. "Mr. Feige?"


This was my moment, and glancing down at the outline I'd prepared, I launched into one of the most exhaustive and extensive bail arguments I've ever made. I described Gillian's work history and her ties to the community, laying out in detail her family, her friends, and her connection to the city. There was no way that Gillian Sands was going to jump bail. And then I turned to Rodney - to their relationship, their love, and the crushing tragedy of an intimate life turned violent. I talked about the witnesses to prior instances of violence, of her fear of Rodney, of his criminal record and his history of violence, and I talked about Gillian, about her remorse, her pain, and her guilt; about how Rodney said he'd kill her this time, how she'd fled before his rage; about how desperate she was to make him stop hitting her; and about how she had no choice but to stab him. As I did, Gillian wept silently next to me - tears of pain and remorse and self-loathing.


I ended with a simple plea: "I beg you, Your Honor," I said, my voice quavering from the potent mixture of stress and passion, "I beg you to please just release this woman."


I had spoken for nearly fifteen minutes. The judge turned back to Dino Lombardi.


"Mr. Lombardi," he said, "Mr. Feige has raised some significant issues concerning the strength of this case and the claim of self-defense. Would you like to respond?"


And there and then, Dino Lombardi did the most decent thing I've ever seen a prosecutor do: looking straight at Karopkin, his voice low and steady, he said, "I have seen the videotape, Your Honor." And then, shaking his head slowly and emphatically back and forth, his chin nearly touching each shoulder in sequence, he said, "And I am required by my office to ask for remand."


There was silence in the courtroom. Karopkin looked hard at Dino, as if to reassure himself of what he was seeing, and Dino Lombardi held his gaze, his jaw set in a look of determination. And then he did it again: slowly and deliberately, he gave Karopkin the head shake. I don't believe in what I'm saying, he telegraphed silently so that the court reporter (who only notes words) couldn't take it down. If a supervisor ever reviewed the transcript of the proceeding, Dino would be totally clean - a bored ADA who was just following procedure late on a Saturday night. But there in the courtroom, before the silent gaze of Marty Karopkin and the astonished looks of the assembled legal aid lawyers waiting for me to go down in flames in my first murder case, Dino was silently saying something else entirely.


"Though unusual given the charges," Karopkin declared a moment later, "given the history of abuse Mr. Feige has brought to my attention and the defendant's ties to the community, as well as the fact that this is her first arrest and that the entire case seems to rest on a confession that may itself make out a defense, I am going to release Ms. Sands on her own recognizance."


There was an audible gasp in the courtroom. Dino nodded slightly, pursing his lips in an approving look. Gillian stood stock-still.


"Step out!" declared the court officer behind us as the courtroom breathed a collective sigh of relief.


"C'mon," I said to Gillian, gently guiding her out of the well of the courtroom, "let's get out of here."


Thanks to Dino Lombardi, I'd gotten my first murder client released without bail. It would be more than a decade before I was able to do it again.


As I would spend that decade discovering, most of the 300,000 people criminally prosecuted in New York City every year don't get a thoughtful judge or a compassionate prosecutor. Most are hounded by assistant district attorneys who lack either the heart or the courage needed to defy the institutional imperative to convict no matter what. Many are just plain shuffled through the system so damn fast that no one has time to think about much beyond the docket number stamped on the case files at arraignment. They are paraded before judges who have seen it all a thousand times and couldn't care less about the factors that make each case unique and each defendant human. But they did that night.


Arriving home at 2:30 a.m., I barely slept. My small Manhattan apartment was almost completely bare. Besides a small table and a used mattress lying in a corner on the floor, I had a lamp, a computer, a TV, and a stack of books perpetually waiting for shelves. All night long I thought about Gillian, about Dino, about how not only was I going to keep the case, I was going to win it.


And seven hours later, at 9:30 on Sunday morning, I had a plan. Jumping up to pull on a pair of jeans, I decided to do what every good homicide cop or investigator learns to do early - go to the scene of the crime.


The G train is the only one of New York's two dozen or so subway lines that never kisses Manhattan. I'd never even ridden it before, and as the train rumbled to a stop, and as I emerged, blinking into the summer sunlight, picking my way down the trash-strewn streets past vacant lots toward the house where Gillian had spent the night, I thought a lot about how different Gillian's day would have been without Dino Lombardi and Marty Karopkin.


Gillian was still shaken, and her darting eyes and skittishness made talking to her difficult. I tried to be soothing, but the trauma of what she'd been through was just too fresh. Traces of Rodney's blood were still visible on the sidewalk in front of her building. I got pictures of her injuries and at least part of the crime scene. I interviewed neighbors, talked to Gillian's friends, and compiled a list of the names and addresses of everyone who'd witnessed or heard that she was being beaten. I began to put together a timeline of who saw what and where everyone was, and just as important, I tried as best I could to get Gillian to understand that what she'd done wasn't necessarily a crime. And toward the end of day, as the sun cast shadows across the weedy lots and shimmered off the broken bottles and shards of auto glass that littered the streets, for a brief, memorable moment, I felt like a real lawyer.


I'd done everything I could think of to do. I was ready to face Eddie.


I couldn't beat Eddie Mayr into the office. No one could. By 6:45 a.m., the supervisor of our group of lawyers had already clipped and digested the New York Law Journal, Xeroxed summaries of the day's most important cases, placed those copies in his famous legal files, distributed them to the mailboxes of every lawyer in his complex, and done whatever other crazy stuff he did during those ungodly hours. As far as I knew, no one had ever seen Eddie walk through the door in the morning, and the actual time of his arrival was a matter of whispered reverential speculation.


Because I couldn't beat him in, I spent the entire ride to Brooklyn figuring the sight lines of the office and wondering whether I could slip past Eddie's door unnoticed. Maybe, I thought, he'd be psyched, and he'd do the case with me. He'd done homicides in the past, I reminded myself. Or maybe he hadn't looked too carefully at what each lawyer had done in arraignments Saturday night.


Wrong. "What the fuck?" It was him.


I'd been dashing around the corner where Eddie's office was, hoping to have a moment to compose myself before he took my head off. No chance.


"Get in here!" Eddie's voice was so menacing my whole body twitched. I was busted.


"You took a homicide?" Eddie was shaking his head at me. "You took a fucking homicide?" I couldn't tell if he was furious or disbelieving; he had this smirk on his face that I just couldn't read. Taking a big breath, I fixed Eddie with a determined look. "Don't even fucking talk to me," he barked. "Just go see Marvin."


Marvin Schechter was the head of the Criminal Defense Division for all of Brooklyn. Marvin was Eddie's boss.


"But . . ." "Just go see Marvin." "Now?" "Now. Go!" "He knows?"


Eddie just stared at me as if I'd disappointed him with the stupidity of my question, as if I should've figured he couldn't protect me from a fuck-up of this magnitude. I opened my mouth to say something, but Eddie's eyes were wide and volcanic. He shook his head slowly and pointed his index finger diagonally upward toward Marvin's office. Go take this like a man I could almost hear him say to me.


Being called up to Marvin's office was bad. It's not that Schechter was scary or mean, it was just that if Marvin was involved, you'd already gone beyond the bounds of anticipated misbehavior - like a principal's office, just being sent there was reproof enough. But Marvin Schechter was actually far less terrifying than Eddie. Eddie was a different species from me, and his tyrannical blend of manly disapproval, maniacal intensity, and aloofness was a potent combination I never quite knew how to deal with. Marvin, by contrast, was easy. Marvin was a little, smart, wisecracking Jewish guy who, unlike Eddie, liked to be liked. Eddie just liked to be feared.


"Hi, David - he's expecting you," Dianne, Marvin's almost inhumanly lithe secretary, chirped as I appeared at the door to his office. "Go right in."


Marvin was sitting behind his long desk. There was a carpet on the floor - it was perhaps the only place in the whole building where the linoleum wasn't bare.


"So I heard you took a homicide," Marvin said, looking up and casually motioning me toward a tall chair facing the desk. His voice was noncommittal, the same tone he used for both commendation and condemnation.


"I did, Marvin. And I want to keep it," I said, giving him my most serious stare. "So before you say anything, please just hear me out. I believe I can do this, and I'd really like it if you gave me a chance."


I saw him take a breath, and in that millisecond, I knew he was going to interrupt me and shut me down. So I charged ahead: "I got her out, Marvin!" I said. "I spent all day yesterday at the crime scene. I have photos, got them developed last night." I held out the packet of photos I'd taken. "I got witnesses - names, addresses, everything - I've already talked to them. I've done tons of investigation - I've met my client's family and talked to the neighbors. I've got a great self-defense claim, and I want her to testify before the grand jury. I know I shouldn't have taken the case. I know it, and you can yell at me all you want, but, Marvin" - I scrunched up my face to be sure he understood just how serious I was - "I want to keep this case. I can do it. I'll abide by whatever conditions you put on me - I'll work with Eddie on it if you want, or anyone else, but I believe in the case, I've done the work, and I'm ready. Really. I'm ready."


Marvin's eyes had narrowed slightly. "You said you got her out?" "Karopkin cut her loose - ROR." I nodded for emphasis. "I met with her yesterday."


"And you understand why this is an issue?" "Yes, Marvin. It was in the basket - I know I probably shouldn't have done it. I understand."


"And you'll work with Eddie on it? It'll be his officially." "That's fine."


"If that's okay with Eddie, it's okay with me," Marvin said. "You'll keep me posted on what's happening with it?" "I promise. I will."


"Okay. Go talk to Eddie about it." Marvin was smiling slightly. "And good work. I know you really want this." I was stunned; I never really thought he'd give it to me.


"I'll do good, Marvin, really I will." "Don't fuck up." "I won't. I promise."


"You better not," Marvin said, his gaze shifting down to whatever he was doing before I walked in. The tips of his fingers made the slightest brushing motion, as if I was an errant fly who'd landed on the wrong slice of pie.


"Thanks, Marvin," I said. "Thanks a lot. I really appreciate it."


He didn't look up. Sometimes a little rule breaking goes a long way.


Downstairs, Eddie was waiting. "He said what?" Eddie was disbelieving. "If you're breaking my balls about this," Eddie said in his special way, "I'll rip your fucking lungs out - you understand me?"


"Yes, Eddie. I swear, Marvin said I could do it as long as you worked on it with me."


"Don't make me regret this," Eddie said, glowering. "I won't, Eddie. I promise."


Eddie nodded with his chin toward the brown Naugahyde swivel chair next to his desk and composed his face. "Okay," he said soberly. "What'ya got?"


I told him, and for the next few exhilarating hours, I got my first tutorial on how to think about a homicide.


Controlled completely by prosecutors, a grand jury is a venue unusually hostile to defendants and defense lawyers. Unlike a trial, grand jury proceedings are secret - in most cases defense lawyers don't even know what happened inside until the eve of a trial, and even then they're only partially informed. Only the prosecutors know who was called to testify, or what they had to say, and though a defendant has the right to testify before a grand jury, it is a right that is exercised sparingly: testifying subjects a client to an almost unlimited cross-examination, with no opportunity for rebuttal. Prosecutors make the rules in the grand jury, and they do so with minimal judicial oversight.


Still, if the grand jury believes that someone has not committed a crime, they can refuse to hand up an indictment by voting what is known as a "no true bill." In effect, a no true bill ends the prosecution.


Thus, testifying before the grand jury is a high-risk, highreward strategy. But with Gillian having explained everything on videotape, it wasn't as if our defense was going to be a surprise. Besides, now was a good time to have her tell her side of the story - it was still fresh in her mind and emotionally resonant, and who knew how she'd come off if we waited two years for a trial?


The criminal justice system is grounded in the idea that truth is a slippery thing. In the vast majority of cases there is no highangle, omniscient camera recording the events precisely as they unfold. As a result, the attorneys, juries, and judges are left to cobble together, from questionable perceptions, shifting recollections, and forensic evidence, some vague facsimile of truth. Because our system is based on the procedural mechanism of proof rather than on some ontological notion of truth, knowing what the prosecutors have is often as critical as knowing what they don't have. Since most (certainly more than half) of my clients are actually guilty, figuring out how easily the prosecution can prove the case is often invaluable in deciding what a good plea deal is. Paradoxically, sometimes even the most damning evidence winds up being the best for a client - because it allows him to see that fighting the case is fruitless and persuades him to take a deal early, before the price goes up.


I worked with Gillian twice a week for more than two months to prepare her testimony. First we agreed on a structure - who she was, the story of meeting and courting her husband, and finally, what happened the night she stabbed him. And when she was finally ready, after the prosecutor called to let us know that they were actually proceeding against her (I'd hoped against hope that they might just dismiss the case), on the day that she walked nervously into the grand jury room and took her seat before the risers containing the twenty-three citizens that would decide whether or not to indict her, that afternoon, when she put it all together for the first time, explaining her hardscrabble life, her deep love for Rodney, and how their marriage had disintegrated when he started to beat her, I knew we had a shot.


"He was so good to me," Gillian choked out before dissolving into tears, "so gentle and funny, strong and handsome. I loved Rodney so much. And I killed him." She took a deep breath, steadying herself. "It was getting worse and worse. He kept hitting me harder, longer. I knew I should have just covered up and taken it." There was a hiccup as Gillian struggled for air, for control over her voice. "I should have let him do it . . . I know. I know."


"Take your time, Gillian," said the prosecutor. "He was hitting me so hard," Gillian continued in a whisper. "We were in the kitchen, and the knife was there." She was almost hyperventilating now.


"And I just did it. I grabbed the knife and I poked him and he was still hitting me and yelling and beating me and I just . . . I just . . . killed him. I loved him, and I killed him."


Gillian broke down completely, racked with the kind of heartwrenching, remorseful sobbing that takes your breath away with its piercing intensity. And as I tried to contain myself, looking down at the floor so that the jurors wouldn't see my own tears, I noticed the assistant DA in the back of the room looking as though she was going to cry too.


There wasn't much cross-examination. The ADA had said she intended to vote the case right away. Apparently, after Gillian's emotional testimony, she changed her mind. She may have been on the verge of tears, but she still wanted that indictment. Two days went by, and I began calling the ADA. "When are you going to vote the case?" I'd ask. "Oh, I'm not done with my presentation yet," she'd reply unconvincingly. It was clear to me what was going on - she was icing us, waiting so as to diminish the impact of Gillian's testimony, hoping that as time wore on, the grand jurors would forget everything except that she admitted to stabbing Rodney, and would therefore charge her with murder. The longer the ADA waited, the more Gillian's testimony would recede in their minds - and the more likely it was that they'd indict. There was nothing to do but wait.


For three weeks I called the ADA daily, with no results. As bad as I was about waiting, Eddie was a lot worse. As another week edged into past tense, we met in his office. Eddie's blue eyes were blazing. He'd been drinking for about an hour, and on his desk, lined up neatly like obedient soldiers, were five empty cans of Budweiser.


"Listen to me, you little fuck." Eddie's speech was slow and menacing. "You think you're good." Eddie was staring. The other people in the room looked on nervously as he leaned in, his cold eyes locked on mine. "You think you're so fucking good." "No," I said slowly. "I don't think that at all."


"Yes, you do . . . , you fuck." Eddie was wagging his finger now, his Vietnam-vet eyes furious and brutal. "You know what? Somebody's gotta put you in your fucking place." I wasn't sure where he was heading with this. The other lawyers watched me the way rubberneckers watch a car accident. Eddie staggered to his feet.


"Let me tell you something," he declared, his words slurring together just a little. "If they indict that woman for murder, I'm putting you on a fucking bus back to Wisconsin. You hear me?" Eddie leaned forward, his powerful square chin thrust toward me.


"They're not gonna indict her, Eddie," I said slowly, looking him straight in the face. "And if they do" - I paused for just a second before deciding to give Eddie exactly what he wanted - "you don't have to worry about it. I'll take myself back to Wisconsin."


It was 5:45 p.m. when I finally got the call: no true bill. I'd won my first murder case.


In the dozen years since I took that case, I've represented murderers, rapists, prostitutes, and drug dealers. I've seen cops lie and maim and subvert the rules of orderly society, watched as heartless, exhausted judges herded people through their courtrooms and into jail, barely glancing up to see who they were sentencing. And yet, after all these years, I can still see what was so plain about the woman who grabbed the kitchen knife and stuck it to her husband: it's often not as obvious as it was in her sad case - battered mad at the hands of a violent husband - but always, if you look hard enough, there is a story, a human drama that casts in a different light the horrific specter of criminality.


This book is about those stories. It is about justice for the haves and the have-nots, about what it is like to be a lawyer in the big city - not a lawyer at a firm in a tall building, defending clients in expensive suits. No, this is about law without the cuff links, about law as it's really practiced - in the drab and common precincts, where man's inhumanity to man is writ large in every tragic detail of otherwise invisible cases. It is about a single day in my life as a public defender in the South Bronx. And it is, in the end, about everyday life in a thousand city courtrooms across America, in the grimy brick buildings and corroding concrete warehouses where American injustice is dispensed bathed in flickering, fluorescent light.


Copyright 2006 by David Feige

 


INDEFENSIBLE

 

                 

 


"Indefensible", my book about the criminal justice system, was published by Little, Brown & Co. in June of 2006.


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