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The Class of the Bar (concluded)

          My encounter with the two women in a bar who had a lower class led me to think about another young woman I met in a bar. She was tending bar, and her surname, she told me, was Dumas with the “s” pronounced, and I always addressed her by that last name. Without consciously thinking about the topic, if you had asked me after I first met her, “Was she from the lower middle class?”, I would have said definitely not. But I could not have said what it was about her that would have led me to that opinion. I was not surprised, then, to learn eventually that her father was a doctor in South Carolina, where she grew up, her older brother was a partner in a prestigious law firm, and her younger brother was attending a top-tier law school. When I found out that she was a graduate of the University of Pennsylvania, I said, “Oh, you are one of those fucking smart women.” She paused, smiled, and replied, “Yes, I am one of those fucking smart women.”

          She may have been smart, but she did tell me that she had not read much since leaving Penn. I gave her my autographed copy of The Black Count: Glory, Evolution, Betrayal, and the Real Count of Monte Cristo by Tom Reiss, the Pulitzer-Prize winning biography of Thomas-Alexandre Dumas, the father of the author Alexandre Dumas. I told her that she ought to learn more about her ancestors. (She was as white as the snow that does not fall in Charleston, and I am not sure that she got the racial joke in the gift.) She stopped working in the bar shortly after I gave her the book, and I never found out what she thought of it or whether she even read the biography.

          Dumas was different from other bartenders and servers in the biergarten not only because she was an Ivy League graduate. Almost everyone who works there has some sort of other career that they are pursuing—actor, videographer, music editor, writer, podcast comedian, lead singer in a covers band, Ph.D candidate, psychologist, saving to buy their own bar, tour guide—but she mentioned no aspirations. This also made her different from the athletic director whom I met in the offended-me bar.

          Kris had mentioned that she had a master’s degree, but I did not get in what or from where, but when Maggie mentioned the book I had put down in front of the way-too-expensive Scotch, Kris said that she would like to read more books but that she did not have the time. Most people who claim to want to read and say they don’t have the time are really saying they prefer watching TV or listening to podcasts or searching for online videos or playing videogames in their leisure time rather than reading. They make the perfectly acceptable choice to do something other than crack a book.

          Kris, however, went on to say that in addition to her two jobs as athletic director and soccer coach that she was studying for a Ph.D. I admit that I did not know the field—educational leadership—and I did not know the school–the University of New England. She was pursuing her degree online. When she got home at night, she turned to studying for that Ph.D. I asked if this was hard, and she spit out, “Oh, yes. It is a lot different and easier going to classes with lots of other people than it is sitting by yourself in front of a computer.” But she was determined to get the degree. She was determined to learn more; she was determined to become even better.

          But the deck is stacked against her in ways that it was not for me. In this land of opportunity, increasingly opportunity is available only if you are born into it. In a better country, the strivers like Kris would make it to the head of the class. I hope she does.

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The Class of the Bar (continued)

          The athletic director and the lacrosse coach who I talked to in the I-am-never-going-there-again bar told me that some of the students in their expensive private school acted entitled, but most were good kids and that no parent had unduly tried to influence them. I had asked about this both because of the recent scandals involving fake athletic credentials and college admissions and because I was told that a professional at a squash club had been berated by a parent when the pro had moved a kid to a lower place in the club’s squash hierarchy. The parent, apparently, was worried that the demotion would harm the chances of the beloved and special child going to some selective school.

          But, still, I thought to myself, even if my two new companions did not feel any overt pressures from the school’s parents, many of them most certainly are status conscious. Without consciously registering why—perhaps if I were a good psychologist, sociologist, or novelist, I would have the reasons–the two struck me with an aura of lower middle classdom that they had not completely transcended. It certainly was not their clothing because their dress fitted in well into a Brooklyn neighborhood bar where just about anything goes. I don’t think it was accents or speech patterns because nothing had stood out to me. It was partly from some of their comments. When one stressed that she was from northern Connecticut, she was indicating that she did not want to be associated with what many see as the rich part of the state. Somehow the comment that my old Harris tweed jacket made good wedding apparel said something to me. But it was something more than just a few comments. It was no doubt congeries of factors hitting me subconsciously that led me to the feeling of their social status.

          It made me feel a kinship with them because I, too, come from the lower middle class, or at least on a good day, maybe right after the father’s payday, my childhood family made it all the way up there. I don’t think, however, that I now give the immediate impression that this is my origin. I wondered why and found that I was not sure of an answer.

          I did consciously change some of my mannerisms because of experiences at my expensive college. I found that my ties were not the right width and that it was acceptable to wear a blue Oxford button-down with a frayed collar and that some of my pronunciations seemed funny to others—e.g., the-ate-er. Some of my lessons caused me a bit more discomfort than others. For example, in my first year at college, I spent the night at the home of a very rich girl. Her grandfather had invented something essential for airplanes that had made a lot of money, and the house where I was staying was the grandest I had ever been in. I had hardly ever slept overnight in anyone else’s house before, and not surprisingly I had not slept well in this one. The next morning when I wandered out bleary eyed, the mother pointed down a hall and told me to go to the breakfast nook and have something to eat. Maybe I had heard of a breakfast nook, but I had never before seen, much less eaten in one. No one else was there. I sat down on the bench seating. On the table was a box of cornflakes, one of my least favorite cereals, and a pitcher (certainly not a carton) of milk. I thought that I could get those dry, tasteless flakes palatable if I made them extra, extra sweet. The only other item on the table was a tiny, tiny bowl of a white substance with an even tinier spoon. It seemed odd that the sugar was in such miniscule container, but there it was. I scooped well into the double digits of the sugar onto my Kellogg’s. I was about to start eating when the mother returned and said, “I am so sorry. I forgot to put the sugar out.” Thinking as fast as I could, I put a spoonful of cornflakes into my mouth, chewed, swallowed, and said, “No problem. I don’t put sugar on my cereal.” It may have been the saltiest food I ever ate.

          But even if I came off as working class in a way that might have held me back when I was nineteen, I think I have shed that cloak. (My parents, however, as an adult reminded me in countless little ways of my less than upper-class origins. For example, I told my parents that I would be visiting them and that I would arrive in time for dinner. Hey, when do you eat dinner? I had forgotten that for them that that was the noon meal. I showed up five hours after they had the table set and the food prepared, which was, how shall I put it, a little dry by that point. Another example: The father was visiting us in Brooklyn. Our parlor floor has ceilings twelve feet high with plaster moldings and plaster rosettes that date to the 1870s. The father almost immediately after his arrival started explaining to me how I could lower to ceilings to a more sensible eight feet, a change that would save me much in heating costs.) On the other hand, those interesting, pleasant women in that no-name-to-me bar still had a lower-middle-class aura. I realize that that made me feel superior to them, and I did not like that feeling. I have been lucky in many ways. I was born into a time where social mobility in this country was real. Today, a child born into the bottom half of society has much less chance of moving out of that status than in almost any other developed country and much less chance than when I was born. (You can look it up.) We still have a Horatio Alger myth, but it is a myth. The rich have insulated themselves and their families by invasion from the “unworthy.”

(concluded December 9)

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The Class of the Bar

          I was in a hole-in-the-wall, neighborhood bar. I had never been there before. I don’t often walk in its direction, but on this day, I was passing it, saw empty seats at the bar, and stopped in. It almost immediately put me in a bad mood. At the biergarten where I often go, I not surprisingly get beer. This place had liquor bottles behind the bartender, and after toying with the notion of wine, I said, “Give me some sort of Scotch.” The barkeep held up a bottle and said “Oban?” I replied, “It doesn’t have to be that good.” He then rattled off the names of three more single malts. Expensive Scotch is all they had. I took the Oban, but I was annoyed. I became more annoyed when I found that it cost $20. I silently vowed that this would be my only visit to the nameless-to-me place.

          I sipped my drink and took out my book. I both wanted to be out of there and to get my money’s worth. As my carefully-measured-to-make-sure-you-will-not-get-too-much-even-though-it-cost-two-sawbucks (does anyone say “sawbuck” anymore?) drink was nearing its end, a woman, gesturing at the stool on my right, asked “Is anyone sitting here?” I replied that it was open, and she and another woman sat down. I only glanced at them. The one nearer me was perhaps late 30s and the other a few years younger.

          I returned to my Scarlett Thomas novel. The two women talked to each other. I did not hear their conversation, but after a few minutes, the one nearer me, Kris, I soon found out, said, “That’s a nice jacket,” and gingerly rolled some of my sleeve’s fabric between her fingers. I thanked her, not knowing what to make of the compliment. The jacket is an old Harris tweed. I bought it fifteen years ago in a secondhand store. She went on to say that a tweed was always good. “You can wear it everywhere. You can wear it to a wedding.”

          We three started chatting. I asked what they did. The older one was the athletic director and soccer coach at a famous private school in Brooklyn, and the other was a PE teacher and lacrosse coach there. I joked, but I am not sure they realized that I was joking, that they must make a lot of money considering how much tuition their school charged. They quickly rejoined that they did not get paid much and not nearly what public school teachers get.

          I found out the older one was from Rhode Island, and she smilingly confirmed that everyone in the state not only knew each other but that almost everybody was her uncle. She told me that she went to Assumption College, and then added, “In Massachusetts.” The other one, Margaret or Maggie, said she was from Connecticut but was quick to add, “Northern Connecticut.” She had gone to Marquette University, and she had enjoyed Milwaukee.

          One of them asked about the tee shirt I had on under the Harris tweed. It had a circle on the chest with “73” on it. I said, “It’s the best number.” Margaret wanted to know why. I said that not only was 73 a prime number, its two digits are prime numbers, reversing the digits yields another prime number, and that 73 was the 21st prime number, and 21 was the product of 7 and 3. I said that I had learned this from Sheldon Cooper on The Big Bang Theory, who went on to give other noteworthy aspects of the number 73 that I no longer remembered. (I was surprised when I learned that 73 has its own Wikipedia page. Do all numbers?) Margaret said that she did not know what a prime number was; Kris rolled her eyes and said, “A Marquette education.” (I was surprised about the professed ignorance since I thought that prime numbers were a basic part of education and a simple concept. A few days later, however, I was still reading the mystery/romantic/math book PopCo that I had in the bar, and I found the narrator’s grandfather saying, “No one knows very much about how primes behave, that’s the problem. Problems to do with primes have puzzled the greatest mathematicians.” Ok. They aren’t that basic and simple.)

          Margaret said, “You must be smart.” I repeated that my 73 knowledge came from The Big Bang Theory. Kris said, “I figured 73 could not mean your age.” I replied, “It once was my age.” I was flattered that she said, “No way. I thought that you were 60 or something.” But my ego did not stay inflated long, for Kris soon labeled me “cute.” The inflection for this cute was not one announced about a boy band member or a young man or woman spotted in a bar or even for a puppy or baby. No, this inflected “cute” was the kind used in conjunction with describing your great grandpa.

(continued December 6)

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Another Con Man

          Miranda, who helped take care of the child, was upset, close to tears, visibly shaking when I got home. She started apologizing and apologizing. I barely held off the panic mode I felt closing in. Miranda then told me that it had nothing to do with the child. Instead, that afternoon someone rang the bell. When she answered, a young man asked for the ladder. He used my first name and stated that I had said he could borrow my ladder, an extra-tall one because of our high ceilings. Miranda hesitated. I had not told her that someone was going to use the ladder. He continued that he was working at a house under renovation a few doors away. Miranda could see that its door was open. He repeated my name and said that he could get it from its storage space under the stoop where, indeed, it was kept. He said that he would bring it back in a half hour. She relented, and he dug out the ladder. She watched him carry it to the pointed-out house. The ladder was not returned in thirty minutes or even an hour. When an hour-and-a-half had elapsed, she went over to the neighbor’s house. Miranda asked about the man and the ladder. The workers there had no idea what she was talking about. They had plenty of their own ladders.

          Miranda was, of course, upset because she had lost an employer’s property, but also because of the embarrassment we all have when we are duped. I was hardly concerned, however. I was relieved that it had nothing to do with the child, and I had a certain admiration for the con man. I had no idea who he might be. Somehow, however, he had learned my first name, which he could have heard as I greeted a neighbor or workman, but he had also learned where I stored the ladder and that was more unusual and not easily acquired knowledge.

          I replaced the ladder. It may have cost $60 or $80 back then, and I thought about that con man. I actually hoped that he had some use for the ladder–that he was renovating something or that he was doing work for others because I thought that if he had tried to sell it, he maybe got ten bucks for it. Hardly worth the risk, it would seem.

But by that stage of my life, having been a public defender in New York City, I had represented many people charged with worse crimes, and seldom would I have thought that their risks were worth the rewards. I had represented those who had committed street corner robberies, muggers in other words. If they had a knife or a gun, this was an armed robbery with a maximum punishment of twenty-five years in prison with routine sentences for the crime of three, ten, fifteen years. Few people daring the streets where the muggers worked had much money and carried little of it. Seldom did the robbers get as much as $50. To even the faintest hope of making anything like real money, the mugger had to do it repeatedly with each robbery increasing the likelihood of an arrest until invariably arrest and prison resulted.

          I learned that these were not simple economic crimes. The mugger was not so much driven by the money as by the thrill of pulling a knife on a stranger on a darkened street corner with escape not entirely certain. It was about the adrenaline and the domination even more than about the dollars.  

        And for the con man who got my ladder, I am sure that it was more about the successful play and the feeling of superiority than it was about the object obtained.

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A Mexican-American Thanksgiving

          I had forgotten the German-Turkish-American server’s name at my local biergarten, DSK. She feigned being upset. I said, referring to the Mexican-American server/busboy standing next to her, “I have known him longer, and I still forget his name.” She replied, “We call him Doughnut.” I looked at him and asked, “Why is that?” He just smiled, and she explained. “He went to a house of pleasure, and instead of giving out dollar bills, he handed out doughnuts.” The Colombian-American bartender said that it was a strip club near a Costco. The Mexican-American server/busboy had bought the doughnuts at a fancy neighborhood shop, and he had given them out to the strippers. He would not tell me what kind of doughnuts they were—I thought that they should have been Boston cream–but his English is limited, and he might not have understood the question. A few minutes later, however, he looked at me with his perennially sweet smile and said, “Now I am a VIP.”

          He seemed to be working every time I went into the biergarten, and I talked with him more. I think his name was Michael. His girlfriend worked, as he put it, for “a Jewish family” in the Sunset Park region of Brooklyn. Their dream was to save money and move back to Mexico, but I never understood his English or Mexican geography well enough to know where.

On the evening before a Thanksgiving, I asked him if he celebrated the holiday. He nodded, but with slight tone of disgust said, “No turkey.” He clearly did not like that traditional bird and carefully asked me if I liked it, as if he could not imagine anyone enjoying it. He told me that instead his family of aunts and uncles who resided in Brooklyn had a barbecue and would do so on Thanksgiving even though the temperature was going to be in the 20s. Clearly it was a big gathering. He told me that there would be pork and beef and chicken and salmon. I asked if the food was going to be spicy, and he said, “Oh, yes,” but then revealed that there was, as there are at many Thanksgiving dinners, a controversy. He told me that an uncle worked in a Japanese restaurant and had access to teriyaki sauce, which he was bringing for the salmon. Apparently, this was not part of the family tradition and not everyone approved or even liked teriyaki sauce. But Michael concluded, “It is a day for the family to get together and that is good.” I asked if they would discuss our president, or immigration policies, or other politics. He said that they did at other times but not on a family holiday.

I saw him a week after Thanksgiving and asked him how the day was. It was great. I asked him how he liked the salmon. It was terrific. I said, “Oh, you liked it with the teriyaki sauce.” He paused and smiled. “No teriyaki. We had it without teriyaki.”

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Such a Trial (concluded)

          That conclusion that jurors try to reach the right decision does not mean I was not then concerned with who the jurors were. I, like other trial attorneys, was very much concerned. I had notions about who would make a good juror and a bad juror for each case, and I used peremptory challenges in the service of such notions. We operated with little information about the people being called for jury service and without jury consultants telling us who would make an ideal juror. We would learn age, race, and gender as well as any personal connection with law enforcement and crime victims. We would attempt to infer economic status from information about job, education, and residential neighborhood. We might guess ethnicity from a name. We would try to make assessments from clothing, manner of speech, and such “clues” as a carried newspaper. We would consider hesitancies in answers and eye contact. But usually all this information was only for us to categorize prospective jurors into stereotypes. And in the early days of my practice, I lived in a legal world that allowed attorneys to indulge in stereotypes. Race and gender were often the prime pigeonholes. In one trial, for example, eleven jurors had been selected, and both the prosecutor and I had remaining peremptory challenges. Whenever a black person was called for the final seat, the prosecutor challenged. I did the same whenever a white person’s name was selected. This continued until one of us exhausted the allotted peremptories. We may have believed in the power of direct and cross-examination and summations, and the importance of what the judge said, but we also believed in who the jurors were.

          I and others cared about jury selection not merely because we thought that the makeup of a jury might affect their decisions, but also because we knew that what they decided could by profoundly important. I was reminded of this fact every time I saw the face of a person behind bars who had been convicted by a jury a few minutes earlier. And I will always remember the person who leapt onto a tenth-story ledge after a jury had convicted him. He lost his footing and fell to his death.

          By the time I stopped trying cases on a regular basis, I had many views about the jury system. They were not all consistent. The side with the better evidence generally wins jury trials, yet the fact remains that the composition of a jury might be crucial. Jurors are swayed primarily by common sense and logic, but sometimes an emotional appeal is the better tactic. Jurors who are not smart or educated and can’t understand complex issues are able to bring their life experiences to the task. Juries are generally more to be trusted to get it right than are judges, but juries cannot be trusted in every case.

          Since that time, I have gained more knowledge about juries as I did research for a book on the jury system, and this modified my views. Experience and study have led me to several conclusions about the jury system. The first conclusion may seem trite: the jury system is important. It is important not only for the litigants whose disputes juries decide, but also to a larger society influenced by these resolutions. Juries are also important because of the significant role they play in the American system of government.

          The second conclusion is perhaps surprising: the present American jury system works quite well. Juries are much more rational in reaching decisions than many suppose. I have learned that too often people, including me in my early trial years, overestimate how much influence factors such as the composition of the jury and the quality of the attorneys have on the outcomes of trials. The reality is that the evidence presented to the juries is the prime determinant of a verdict, and this is the crucial reason why the system works well.

          The third conclusion is that although the jury system works well, it can be made better. Since juries follow the presented evidence, the most significant way to produce better jury decisions is to improve the information that the jury gets to consider—to improve the evidence presented to the jury.

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Such a Trial (continued)

          I went on to represent clients charged with more serious crimes and to supervise other trial attorneys. These experiences taught me a fact of life absorbed by most criminal defense attorneys: juries convict most of the time. This truth might have led to my disillusionment with the jury system, but I was repeatedly struck by how seriously jurors take their job. People are plucked from their daily routines and commanded to serve as jurors. Most resent it and have to make sacrifices to come to court. They are asked to make decisions about people they do not know and to assess situations and circumstances they hope never to encounter. It is easy to understand why ordinary citizens would not care one bit about what they are asked to do. But they do. Whether I have agreed with their decisions or not, I have observed that jurors almost always agonize over making the right decision.

          This fact has been highlighted by a few exceptions. The one that upset me the most happened in a robbery trial. A woman had been walking in a poor part of Brooklyn filled with rubble-strewn lots and ravaged shells of buildings. Two young men ran up behind her, grabbed her purse, and knocked her to the ground. She saw the two flee into one of the abandoned husks. Her screams brought calls to the police. She testified that she watched the hiding place of her attackers until the police apprehended the defendant there, and then she immediately identified him as one of the criminals.

          Cross-examination demonstrated, I thought, that she had had little opportunity to observe the purse snatchers. They had come from behind, one on each side of her. She had not looked back as they approached, and they had run off in front of her. I tried to show that at best she might have caught a glimpse of the profile of one of them, and although she maintained that she had continuously viewed their hiding place so that they could not have left without her detection, she had no explanation as to why the police had only found one of the supposed robbers, my client, in the building.

          The defendant, a teenager, testified that he had simply been hanging out in a neighborhood building when the police arrested him. He swore that he knew nothing about the robbery. The victim’s purse was not found.

          I then presented what I thought was convincing evidence that the defendant had not been found in the building where the robbers had sought refuge. The victim had firmly identified one location. The police just as firmly said that they had found the defendant elsewhere. Citing official records, I showed that the building where the defendant had been found was located at a considerable distance from the site the victim had pinpointed, with no connection between the two structures.

          I argued that the victim was clearly confused and that it was only natural that when she saw the defendant handcuffed in police custody, she identified him as one of the culprits. However, the identification was wrong or at least there was a reasonable doubt about whether she was correct. The jury, however, convicted in less than an hour. As the jurors left, I tried to talk to some of them to try to understand how I had failed. Only one paused. He told me that I had done a good job representing such a clearly guilty person. He then put his hand on my arm, laughed, and said, “We were especially proud of how you were able to make that building move.” He looked as if he expected me to chuckle at the joke. When I didn’t, he strode away. I was angry, of course, because I had lost, but I was also angry because he had apparently not taken the case or the facts seriously. This was behavior I seldom encountered in a jury.

          Instead I have found the vast majority of jurors to be diligent and earnest. One juror, for example, sought me out in my office the day after returning a guilty verdict. The police had said that while one officer had knocked on an apartment door, another stood out back and had seen the defendant toss drugs out the window. Others besides the defendant, however, had been in the apartment at the time, and the officer who had identified the defendant in the fifth-story window had seen the toss from an oblique angle. The apartment was not the defendant’s, and I argued that they had identified the wrong person. At least some jurors agreed, and they announced they were hung. The judge, however, sent them out for further deliberations. The jurors then asked for clarification as to what “possession” meant. The judge told them that possession as the law defines it is not limited to immediate, physical control. Instead, it includes “constructive possession,” meaning that anyone in a place where drugs are present constructively possesses them. I objected, arguing that the law of constructive possession requires knowledge and apparent control of an object. I constructively possess the books on my office shelf even when I am not physically possessing them, but my visitors do not. However, the judge did not waver, and fifteen minutes later a guilty verdict was returned.

          The next day that convicted juror protested. “I had no choice once the judge redefined possession. I didn’t think your client threw out the drugs, but I had no choice after what the judge said. I couldn’t sleep last night thinking about that boy.”

          Because jurors almost always try to reach the right decision, in cases where I have not agreed with their verdict, I do not ask, “What is wrong with you people?” Instead I ask, “What information did I fail to present?” “What question did I not think to ask?” “What argument did I neglect to make?” In some case, I have realized that the outcome was not the result of my failings or those of the jury. Sometimes the result is ordained by the law as given to the jury.

(Concluded November 25.)

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Such a Trial (continued)

          A few weeks later I was back on trial. Another lawyer and I were defending an English and an Irish immigrant who were charged with assaulting another Irish immigrant. The defense maintained this had been a minor skirmish outside a bar, yet the victim had taken nude pictures of himself indicating that he had received a sound thrashing. Both defendants testified that the victim, not they, had started the fight. The jury acquitted the defendant represented by the other attorney but announced they could not reach a verdict on my client. This seemed nonsensical. The evidence suggested that both or neither were guilty. The other defendant, however, had never been arrested before, and my client had committed an earlier assault. The jury was told that they could not use this prior incident to determine that my client was violent and, therefore, that he had committed the charged crime. Instead, the judge instructed, they should assess how the earlier crime affected the defendant’s credibility when he testified that he had not started the fight. Since I was not sure what that instruction meant, I doubted whether jurors could understand it. Even so, when I got over the disappointment of not winning, I realized that the jury’s refusal to acquit my client did not seem unjust.

          The notion that these trials would have been better without juries did not occur to me. What was the alternative? The only available options were no trial or a bench trial, a trial where the judge without a jury determines whether the accused is guilty. The no-trial alternative meant plea bargaining.  Few legal disputes are resolved by trials of any sort. Criminal cases are largely handled by plea bargaining, civil matters by settlement. Trials are not really seen as civilized ways of deciding disputes. Instead, they are threats. If an adversary does not accept the offered terms of resolution, the ominous response is “Let’s go to trial.” To be an effective trial attorney means not so much to do well in the occasional matter that goes to trial, but to be an effective bargainer in the many cases that do not. The ultimate bargaining chip is always a trial. Of course, if an attorney is reluctant to try cases or cannot try them well, the trial threat has little force. Nevertheless, I quickly learned that the major reason for trials is to assure that most cases will end in settlement or guilty pleas.

          One of my early bench trials taught me that the system often discourages those who truly want a jury trial. New Yorkers typically dispose of furniture by placing it on the street. Passersby can examine such leavings and take what they want before sanitation trucks haul it off. My client—call him Schwarz—had staked out some abandoned tables and chairs. Another person stated that he had already claimed the objects and that Schwarz was violating the unwritten street rules of first possession. Shouting and finger-pointing escalated to an altercation. As Schwarz stood his ground, the other person flagged down a police car, and Schwarz ended up charged with assault, theft, and disorderly conduct.

          Schwarz maintained that he had done nothing wrong. When told that he could plead guilty to disorderly conduct, which was not a criminal violation, and be sentenced to a conditional discharge—in effect, no punishment at all—he vehemently refused and insisted on a jury trial. A jury trial, however, was not easy to be had. Manhattan had only two courtrooms for misdemeanor jury trials, while it had many more to process preliminary matters on felonies and to enter misdemeanor plea bargains. A case would be sent to a jury trial room only if it was clear that both sides were truly ready. That generally meant that the witnesses for each side had to be present. If they were, however, the case would merely be marked ready for trial. If the jury trial courtrooms were already engaged with other trials, as they usually were, the case would be adjourned to another date, when the process would begin again.

          This system often defeated defendants’ desires for a jury. A young man charged with an auto theft, for example, had insisted on a jury trial. In my opinion, he had a good defense and stood a reasonable chance of being acquitted. Over a three-month period, we tried and failed five times to have his trial scheduled. On each attempt, he had to take off work in order to come to court. His perseverance had cost him a week’s wages, and he feared that further time off would cost him his job. When the prosecutor finally told us that if he pleaded guilty, he would get a $150 fine, the young man, who had already lost more pay than that, relented and pled guilty. I don’t know if he actually stole the car; there was a good chance he had not. But I understood why, even if innocent, he had said he was guilty.

          Schwarz was different. He would have come back forever to have his day in court, but he also had three witnesses—a retired man, a stay-at-home mother, and a young stockbroker. Each had seen the altercation, and each confirmed Schwarz’s version. Each had come to the courthouse two times and spent most of the day in a courtroom only to be told that the trial would not go forward that day. When the same result seemed imminent on the third day, the stockbroker told me that he was not sure he would be able to come back again. When I saw the mother nodding in agreement (she had to hire a babysitter each time she had come to court), I told my client that I thought we needed to go to trial that day. This could only happen if the defendant waived a jury trial and consented to a bench trial. If he did that, I thought, the trial would be sent to Judge Logan. I had had hearings and a bench trial in front of Logan, and he had seemed fair. Judge Logan, however, was overloaded, and he indicated that my trial would be sent elsewhere. It ended up with Judge Wolfe.

          Many attorneys, including my supervisor, told me what a mistake I had made. Wolfe was reported to be short-tempered and vindictive. Wolfe, supposedly, had never seen a defendant who was not guilty, and I was told to inspect my client’s footwear. Wolfe, so the story went, had returned home from the opera one night to find his apartment door ajar. He saw a ransacked living room when he heard a noise in his bedroom. There he noticed an open window, and the burglar fleeing up the fire escape. All the judge saw of the miscreant was a sneakered foot. Since then, the judge was hard on every defendant, but especially on those wearing sneakers.

          Schwarz, I was relieved to see, was shod in scruffy loafers when we went to trial. His witnesses testified well. I felt confident, but when I gave my summation the judge appeared not even to be listening. Immediately after the prosecutor finished, the judge harshly announced, “Guilty of two-forty-twenty.” Schwarz erupted. Court officers moved to restrain him. I grabbed him and tried to explain as he continued to shout. The judge had found him guilty only of disorderly conduct. The judge had acquitted him of the theft and assault charges, but he had not said so explicitly. My client had thought that he was convicted of all the charges against him.

          When I finally made Schwarz understand what had happened, he mumbled, “A jury never would have done it like that.” The judge then sentenced the defendant to a fine, while a guilty plea would have incurred only the conditional discharge. Perhaps the result would have been the same with a jury, but the outcome had not seemed legitimate to the defendant. Schwarz’s anger focused on the one person who had made the decision.

          The episode hammered home a lesson that every trial lawyer knows. The alternative to a jury is a bench trial, and judges are not dispassionate oracles. They are human beings, and no matter how much they try to transcend their life experiences, they consciously or unconsciously carry them when they don their robes.

(Continued November 22.)

Posted on by rjonakait

Such a Trial

          I was nervous. Extremely nervous. I had been practicing law for just two months as a public defender, and I was about to undertake my first jury trial. Although my job with the New York City Legal Aid Society had given me a month of training before I was let loose in court, I had never seen an actual jury trial.

          The two defendants had been formally charged with “jostling,” a New York crime that punished people for unnecessarily putting their hands near or in others’ pockets or purses, a crime aimed at pickpockets. The complaint, however, hardly indicated a light-fingered pair. No. They were charged with beating a person senseless on the Bowery (in those days it was not a hipster haven but a skid row) and taking money out of his pockets.

          I knew little about the case other than the single paragraph setting out the charges. New York law did not even require that I be told who the prosecution witnesses would be, much less what they would say. I could do only what I had been taught to do.

          In the courtroom before the judge entered, I tentatively called out the victim’s name listed in the complaint in hopes that he would talk to me. No response. I said it louder. Still no response. I then called out, “Officer Murphy,” who had made the arrest. A man with a gold badge dangling from a breast pocket motioned me outside.

          His first words to me were angry. “I worked hard to become a detective. I am Detective Murphy, not Officer.” He almost spat that last word. He went on to tell me that he was working a robbery detail when he saw my clients roll a drunk. When I asked where the victim was, the detective confessed that although he had repeatedly been to the dollar-a-night hotel the victim had given as an address, the Bowery resident could not be found.

          I descended into the bowels of the courthouse to talk to my clients, who were in a holding cell. The two, both much older than the average arrested person, had not made bail. Their “rap sheets” revealed lengthy criminal records, and although I was to see thousands of such criminal records over the years, one of these client’s sheets contained an entry I never saw again. Twenty years earlier, he had been arrested for vagrancy in Fort Wayne, Indiana. Although in those days, the records seldom reported the disposition of an arrest, this one did. It simply said, “Put on the bus to Chicago.”

          One of the defendants moved to the front of the cell and spoke to me through the bars, nervously insisting that he knew nothing about the charges but that he wanted a plea bargain. The assistant district attorney, however, had said that any deal would require both defendants to plead guilty. The other client sat placidly in the far corner of the cell reading the Bible. From there he said firmly, “I am not pleading guilty. If this is a crime, where is the victim?” When I explained that the charges were not going to be dismissed because of the victim’s absence, he just repeated, “If this is a crime, where is the victim? Let’s go to trial.” So, we went to trial.

          I may have thought that a certain majesty or dignity surrounded a jury trial, but the TV and movie courtrooms did not look like this one. Manhattan misdemeanor jury trials were in small, airless, dingy rooms with humming, dim lights. The smell could never have been captured on television. Part of it came from generations of unwashed bodes; another part from infrequently applied disinfectant floor cleaners. There were other components, too, but even after years of entering such rooms, I dare not speculate on them all.

          The jury selection for that trial is a blur, as are the prosecutor’s and my opening statements. The detective testified about how he saw the defendants beat the other man and take his money. In my cross-examination, I suggested that the cop’s vantage point did not allow him to see all that he claimed, but mostly I harped on the fact that the supposed victim showed no interest in the case and could not be found. The detective was the only witness.

          My summation must have pleased one of my clients because most of it was variations of “If this was a crime, where is the victim?” The prosecutor responded that justice had seldom seen a more open-and-shut case. The judge then told the jurors the law they were to apply in reaching a verdict, and the jury began to deliberate. Two hours at most had elapsed from the trial’s inception.

          Perhaps forty-five minutes later, the jury had a verdict. The clerk told my clients to stand and face them. My heart pounded, and I asked myself, “Am I to stand, too?” No one had told me. As I worried whether I was embarrassing myself, the foreman announced the first verdict. I did not hear it. But when the jury was asked about the second defendant, I clearly heard, “Not guilty.”

          Relief followed. A few days later, the arresting detective saw me in a courthouse corridor. He extended his hand. “Counselor,” he said, “you beat me fair and square.” Is that what a jury trial was about? Was it a contest between the cop and me, with the jury as arbiter?

          The jury system was starting to seem more complicated and mysterious than I had realized. On the one hand, I thought it possible that my clients had done something like what the cop had recounted, even though I doubted he had witnessed all he claimed. On the other hand, the state could not prove robbery, and I thought that the prosecution was misusing the jostling law against the defendants. According to the words of the statute, they were guilty, but the acquittal did not seem unjust. Perhaps it was even right.

(Continued November 20)