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 www.almreprints.com. #076-09-06-0003
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