Posted on by rjonakait · 2 Comments

Confessions From a Beginning Public Defender

Over the last fifteen years, I have volunteered at several public defender offices. I started my legal career as a public defender, and going back to that work after decades made me remember how hard that job is. It certainly was difficult for me at the beginning of my career.

          Because of plea bargaining and dismissals, many defenders and prosecutors try few cases. The overwhelming majority of cases end without a trial, and new attorneys might go a year or more without doing a trial. I, however, tried a lot of cases shortly after being sworn in as an attorney.

          After getting a graduate law degree, I joined the Legal Aid Society, then New York City’s public defender. I was a favorite of the chief attorney of the organization because he and I were both graduates of the University of Chicago Law School. He advanced me quickly, and I was in a major trial position three months after I started, having already done a few misdemeanor trials.

          Federal money had come into New York City for special drug courts, and I and five others were assigned as public defenders in these newly-opened courts. Cases were transferred there from all around the city. Because of the backlogs in the other courts, many of these cases were old, no acceptable plea bargains had been negotiated, and a mountain of cases was awaiting trial. The new courts were designed to try such cases. As a result, for about a year and a half, I started a new trial about every two weeks.

          The pressure was intense. I never was not thinking about my cases. I carried a notebook—at movies, parties, dinners, the subway, wherever—to jot down notes about the cases because I could not shut them out of my mind. I put the notebook by the bed because almost every night I would wake up thinking about my clients.

          Mostly I lost the trials. I knew that this was normal. Defendants are convicted 75% of the time or more, and the conviction rate for the kinds of drug cases I was trying was even higher. A legendary attorney who mentored me said that it would be a miracle if a defender won half the cases. Even though I knew these facts, I had not yet mastered the essential requirement for a public defender: coping with losing. I consider myself sane and balanced, but this was the one time in my life that I felt close to a nervous breakdown. Of course, it may not have been my fault that a person was convicted—the evidence against him was simply too strong—but even so, each time I questioned whether I was competent to do the work.

          Especially hard was a loss when the defendant had been free on bail. When convicted, he was immediately handcuffed and shoved into a cell behind the courtroom. I dreaded seeing that person at that moment, but I felt that I had to. The bars that separated us always gave me a chill. They haunted me. This feeling always comes back to me when I see the final scene of the movie “The Maltese Falcon.” Although I have enjoyed this film many times, I often turn away at that closing shot, which gives me the creeps. Mary Astor is being led away by the police, and she is hoping that Humphrey Bogart will save her. In a great monolog, he makes it clear that he won’t. The cops take her to an old-fashioned elevator with a gate, and the gate is closed with her on one side and Bogart on the other. The gate’s shadow falls like bars across her face. The horror of what awaits her has now sunk in. She panics. The scene brings back the memory of the queasiness I felt when I went to see Abraham S. in the cells after he was convicted. His was the real-life face of Mary Astor’s character. Worse yet, it was not clear to me that he was guilty. Sleep was only a velleity that night.

          I did win a few trials, but these did not prove to me that I had the right disposition to be a public defender. After a not-guilty verdict I did not feel elation or gratification. I did not even feel satisfaction about my trial attorney skills. I was only relieved that I had not lost. The win did not make me feel good; it only staved off the depression of a loss. After one acquittal, I talked with the friendly presiding judge, and I explained these feelings to him. He responded that with such emotions, I should not be a public defender. I knew that he was right, but I had no idea what to do to survive in the work.

          After trying cases at what seemed like a non-stop pace for a couple years, I left the trial bureau and went into a test case unit of the Legal Aid Society. Doing legal research and drafting memoranda and briefs without having to pick a jury gave me time to reflect on my experiences, something I could not do when I was involved with trial after trial. I thought hard about what I had done well and what I had not done well. I thought that I was being objective when I concluded that I had performed much better than I had given myself credit for. Yes, I was a good trial attorney, and my clients, even the ones who had been convicted, were lucky to have had me.

          Six months into the test case unit, I went back to try a big drug case involving a defendant arrested by an elite, but corrupt, unit of the police. Conviction meant an automatic life sentence, but now I had the confidence that I knew what I was doing. The client, however, was scared and tried to get me replaced, but his mother—a sweet, sweet woman, who, in spite of everything, loved her son–said that she had a vision from God that I was Mikey’s savior. So, he began to cooperate with me. I did do a terrific job, and to his surprise he was acquitted of the most serious charges. He went to jail, but did not get a life sentence.

          From that time on, I felt I was able to assess my trial performances more dispassionately. Even when there was a conviction, I could examine without prejudice whether I had done a good job. I looked back on a trial not to flagellate myself, but to see if there was something to learn for the future. I learned that I and only I had to try each case. In other words, I could not let other people tell me how to try it because I was the one who had to live with the result. I learned that sometimes risks had to be taken and the safe path was not always the better one. The safe path, the one that others can’t criticize, often leads to a conviction because that is the usual result in a criminal case. Risks would leave me open to criticism, but I owed my client my best effort, risky or not. If I thought that the risks increased the likelihood of an acquittal, even though an acquittal was still unlikely and even though I would be criticized if a conviction resulted, the risk was worth it. I learned to have confidence in my judgment, or at least I learned that I knew the case better than any observer and my judgment about my own case was better than anyone else’s. I eventually went back to regularly trying cases and trusted that I really knew how to do it. I would like to think—do think—that I served my clients well. I still felt bad after a loss, but now I found satisfaction in winning.

          But there was another side to being a public defender. Mikey’s big drug case, while giving me new-found confidence, also led me to an ethical breach…not a particularly serious one, but… Defender ethics prohibited me from taking anything from the client or his friends or family. But after the case, Mikey’s mother kept insisting that she had to do something for me. She settled on a Saturday lunch that she would prepare. I said no again and again, but she persisted. She could not understand the reason for the refusal, and I could see that I was hurting her feelings by continually declining her invitation. I decided to bend my ethics and relented. She then insisted that I bring the spouse. I’m glad we went.

          She lived in a cramped apartment somewhere in what was then the shadow of Shea Stadium, the home of the Mets. We quickly learned, however, that after coming from Cuba (well before Castro), she had lived in the Bronx and was a Yankees fan. Her accent was thick, and she kept talking about her love of the New York “Jankees.” I tried not to smile every time she said it. There were religious artifacts around her living/dining room, but then I noticed pictures of a handsome man in the kind of fancy dress that I associated with Cuban performers. When I asked about the person in the picture, she lit up. That was her husband who had died but still lived in her memory. I did not know how to react when I found out that he was a Cuban band leader who primarily led orchestras playing on cruise ships plying the waters to Havana. I did not ask her what she thought of “I Love Lucy,” but here was a woman who had been married to a real-life Ricky Ricardo. She was fascinating talking about that life.

          She had us sit at a small Formica table, and she brought the spouse and me food. After we ate it, she brought more food. After a few minutes, she brought even more, and after that was sampled, another dish, and another. She had prepared a banquet for ten!  I hoped each time she served us it was the last time, but I also felt that I would look ungrateful if I did not continue to eat. She had worked on this meal not just for hours, but for days. The spouse and I kept urging her to sit and eat with us, but she refused. She was only there to serve us.

          If we talked about her son (who was serving a nine-year sentence), it was only for a moment. She tried to give me money, but I was insistent on giving it back to her. I didn’t see her again after I waddled down the steps, but for years, until she died, I got a Christmas card from her sent by her son. I don’t think that she could read or write English.

Posted on by rjonakait

For Sanity, We Made Jokes

          When I started work as a public defender, I felt myself an outsider. I was viewed with suspicion by many of my colleagues. They were almost always local people who had attended local colleges and law schools. My Ivy League background and my recent relocation to New York City were not considered pluses. Out of the hundreds of attorneys, only a handful had attended an elite law school as I had. Many assumed that I was a dilettante who could not do the work. But the duties suited me.

We did not operate in teams as was done in other public defender offices where I later worked. In New York, an individual attorney, with little oversight, represented clients, and I operated best in this kind of environment. While I learned to discuss difficult cases with others, no authority told me what to do, which, given my anti-authoritarian nature, suited me just fine.

The job required being able to take individual responsibility. I am not a fighter by nature. I seldom initiate a confrontation, but when I am cornered, I am a battler. Basically, a public defender spends a career being cornered, and I was surprisingly good in those situations. I soon had the respect of my colleagues. I truly liked and respected most of the people I worked with. They were good attorneys.

          I also learned a lot and not just about how to be a lawyer. I gained knowledge about lives I would not have otherwise encountered. Much of it was ugly stuff, and I had to find ways to cope with that. Sometimes, for example, I would meet clients hours after they were arrested, and they were going through drug withdrawal, which was awful to see. Even now, many years later, I can’t watch a depiction of that in a movie or on TV. When I left the work, I wanted to leave behind the encounters with violence, dysfunctional families, and hopeless alcoholics. I did not want to bring those memories into the rest of my life, but that has not always been an easy task.

          The difficulty in separating out the public defender work from the rest of my life was there even while doing the work. I cultivated the mental habit of being a careful listener, cataloging and putting into the memory bank what I had been told. The instinct was to be suspicious of every assertion, and I remembered when a client, a cop, a prosecutor, or a judge told me something that was different from what the person had said two weeks or two months previously. Such an inconsistency was hoarded because it might be valuable down the road in defending the indigent. But this habit could become second nature and be carried over into “normal” life, and being immediately suspicious of what friends, family, and other loved ones said is not a particularly good way to operate in regular life.

          We defenders also easily fell into stereotyping victims and defendants. For example, we would say that blacks used guns, Italians knives, and Irish fists. Orthodox Jews committed crimes with pens—various kinds of fraud—or unorthodox sex crimes, such as inserting a key into a young girl’s vagina to “unlock” her. Gypsies (no Roma for us) and Russians were incapable of telling the truth. And many more.

I would like to think that such stereotyping did not affect me when representing the individual client, but I know that I operated on ethnic and other stereotypes in jury selection. Common wisdom was gleaned from other attorneys. For example, try to exclude a black juror born in the West Indies if a black born in the South was on trial. These stereotypes went beyond the racial and ethnic. I had assumptions about the kind of person who would live in certain neighborhoods or hold particular jobs that affected the use of my peremptory challenges. Once again, I did not want all this typing of groups to invade the rest of my life.

          Manipulation also became second nature. Can I maneuver the prosecutor or judge into a better deal for my client? But also, can I manipulate, or more neutrally, convince my client into seeing that a particular plea bargain is not only a good one, but the best he is going to get? Of course, there is manipulation in everyday life, but it is not the constant that it was in criminal defense work.

          Indeed, the contrast between my work life and my other experiences was often jarring. The spouse was studying and training to become a neurobiologist at Cornell and Columbia medical schools. Her mentors were M.D.’s who lived in fancy apartments and townhouses, and many of her colleagues were also medical doctors pulling down nice salaries, while she and I could barely make ends meet. Sometimes I would go straight from work to a Park Avenue party, and the disparity between the two was almost incomprehensible. I was no more than five or ten miles from the courts and my clients’ neighborhoods, but it was worlds apart. I did not talk much about my work at these gatherings because I did not feel it could be grasped by the partygoers just as those I represented could not have comprehended the lives of these doctors and scientists.

          We defenders shared two mechanisms for coping with the work. The first was the more frequent and more creative use of “motherfucker” than even David Mamet could envision. The second was laughter. We all learned to tell jokes about the stuff we saw and did, jokes we knew could not be shared with others outside of our work. Jokes were made about almost anything and was the first reaction to nearly everything.

I remember only one time when we all felt that a joke could not cover the pain of what we experienced, and no one uttered a quip. Other attorneys and I were listening to a tape from a recorder worn by an undercover officer who was in a housing project corridor to make a drug buy. We knew what had happened, but it was still startling to hear the cop’s voice as he recognized a high school classmate as the seller from whom he was to make the buy. We then heard the officer yell, “Don’t shoot! Don’t shoot!” The classmate had realized that his once-friend was now with the police and had pulled out a .357 magnum. We heard the shot which reverberated in the narrow hallway. We knew that the officer was hit. We could then barely hear his pleading voice get the words out again, “Don’t shoot.” Then we heard another shot which hit the cop in the chest right next to the recorder. We could hear the chilling sound of blood and air being sucked in and out of the gaping wound. And then the tape fell quiet. We public defenders looked at each other in silence. Even we couldn’t joke about what we had just heard.

That incident aside, however, I don’t think I ever laughed as much as when I was a public defender.