Indefensible - Review by New York Law Journal Magazine



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

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New York Law Journal Magazine

Attorney memoirs are largely designed to further burnish the reputations of their authors, highlighting their “genius” both in and out of the courtroom. Nizer, Belli, Bailey, Boies, Cochran—even Marcia Clark.

David Feige’s “Indefensible: One Lawyer’s Journey Into the Inferno of American Justice” is different. It’s a “day in the life” of a Bronx public defender who must defend the indefensible, whether guilty or innocent. In its pages, the author avoids self-congratulation—surprising for a criminal lawyer—and instead focuses on the struggle to defend in an often “indefensible” and dehumanizing justice system. It’s a 13-year public defender career editorially compressed into one frenetic day.

This is an age of mega law firms. Legal recruiters boast strong pro bono commitment and wide opportunities for the graduating law student who “demands” it (in a buyer’s market). Death penalty litigation, usually without getting the associate’s manicured hands dirty, is the glamour work most sought after. Pro bono publico, whose hallmark is sacrifice, just doesn’t mean what it once did—not at $145,000 starting salaries.

We also are a society glutted on “Law & Order” episodes—stories that idealize a prosecutor-on-the edge, purportedly “doing God’s work,” always pitted against a sleazy, unctuous or despicable defense lawyer-on-retainer. Watching TV, we almost long to be that prosecuting Justice Crusader.

But no one wants to be the lawyer (or even play him on TV) who practices in the trenches, defending society’s outcasts. We don’t care to be excoriated or humiliated on a daily basis by random judges who are unconcerned with the burgeoning caseloads of overworked and underpaid defenders. Defenders who often must be in five different court parts for simultaneous appearances on behalf of clients—some nice, some not—who “must” be defended, whether the lawyers like it or not.

No screenwriters, or authors other than Feige, bother to describe for us the lawyer who must often, strategically, counsel his client to waive precious rights that could have resulted in the dismissal of the case against him. Meaning, for the defendant who can’t afford a puny $750 bail, setting a schedule for motion practice will keep the client in jail for another 30 hideous days, while simply pleading guilty, however personally onerous that might be (particularly for the truly innocent client), “will send you home today.” Feige tells us, too, of judges who use that reality to effectively extort guilty pleas from society’s underclass when they get arrested and can’t afford the $750.

And Feige doesn’t shy away from telling us that defendants (primarily white ones) who can afford bail—and, of course, private counsel— don’t face the painful decision of whether to waive rights or gain vindication, or at least justice. Those defendants can instead submit their motions and enjoy a beer nightly at a local pub until the judge decides for or against.

In describing the battles that the true pro bono enthusiast encounters in defending the underclass defendant, Feige reveals certain gratuitously irritable and, yes, seemingly sadistic judges. Because he actually “names names,” you almost want to take a minute to call Feige and ask him where he purchased his brass set.

But there’s no time. You’re too involved in learning how Feige deals with his down-and-out homeless repeat client, Cassandra. Desperate to get off the chilled winter streets, Cassandra plans to commit a petty offense in order to get arrested and receive “seven nights sleep and three square” daily behind bars. Feige describes his role in counseling her before she commits her offense, to ensure the offense is truly “petty”—so she’s “out in seven.”

He describes “burning” favors to get cases called so that he may run to another court part where that judge is already fuming. He literally lends clients the suit off his back to make them appear better in court (and avoid, as he calls it, “the appearance of impropriety.”) He writes of a nearly inhuman judge who raises bail for a defendant simply because his zealous Bronx defender has persisted too long (five minutes?) in arguing for the client’s release. And he describes burnt-out defenders for whom “innocence” has become a dubious concept with complications that make coping with their job (and the possibility of being the cause of a true miscarriage of justice) too Herculean: “The smell of innocence is rare and unwelcome.”

Though Feige deals with all of this in a cheerful and non-self-aggrandizing way—he refuses to depict himself as hero, though he often should—he nonetheless recognizes that these lawyers in the trenches are simply “pawns” in an ugly system in which they become “complicit” (his word).

The book describes a “Sisyphean” system where guilt or innocence becomes inconsequential. These underfinanced and overworked lawyers are always rolling the rock uphill in a venue where counseling guilty pleas—even for innocent clients—may be the “complicit” public defender’s lot in life. Camus, I might add, saw Sisyphus as happy! Feige, too, I suspect, is also happy.

He’s happy even while suggesting the irony in society celebrating, on the one hand, the fundamentalist’s view of the possibility of redemption in everyone, while when he presents the same basic belief in the secular context of the brutal world of the criminal justice system it somehow “loses coherence.”

It may be high time that we stop throwing cocktail parties for the establishment to laud itself for its commitment to pro bono service, and instead get down in the trenches and “truly” lend a needed hand. Society (and maybe Hollywood, too), rather than simply canonize the zealous prosecutor, needs to make a more urgent commitment to recognize and encourage those who truly do God’s work. Feige’s “Indefensible” may be just the book needed to help shine a light on the currently dilapidated system and make it, once and for all, defensible.

This article is reprinted with permission from the Semptember 2006 edition of the NEW YORK LAW JOURNAL MAGAZINE. © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact ALM, Reprint Department at 800-888-8300 x6111 or visit #076-09-06-0003

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