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.)

Arrested and Brought to Court (concluded)

After the rights were waived and counsel appointed at arraignment, there might be something that was not legally a part of the arraignment. This was known as plea bargaining. It would not take place if the charges were serious. The New York Criminal Court, where these arraignments took place, only had jurisdiction over misdemeanors and preliminary matters on felonies. A plea of guilty could not be entered to a felony and so plea bargaining on serious cases was down the road. It was different for misdemeanors where the maximum penalty was no more than a year in jail.

Court administrators pressure judges to “dispose” of cases quickly. In practice this meant to get pleas of guilty or a dismissal that would clear cases from the docket. If the charges were of a kind that might be plea bargained, the judge would call the assistant district attorney and me to the bench where we would have a conversation that was private and not on the record.

The prosecutor’s consent was necessary for any guilty plea to less than all the charges. Thus, the assistant district attorney would indicate to what charge(s) he would allow a guilty plea with the understanding that he would dismiss the remaining one. He might also indicate what he thought the punishment should be. I would indicate whether this was sensible to me and often make a counter offer, not generally on the charges but to the sentence. If I had learned plausible reasons from my interviews why the matter might not be as serious as depicted in the charging papers, the judge would ask the arresting officer or the complaining witness something to weigh in.

Finally, the judge would indicate what sentence he would impose if the defendant did plead guilty to the charges the prosecutor offered. I would then go back to my client standing at a table a few feet away from the bench. I would tell the client in a confidential tone what had happened at the bench. The defendant then had a few moments, and only a few moments, to decide whether he wanted to take that offered plea. If he did want to take what had been offered, I indicated that to the court, and his plea was taken. This required an “allocution.” The defendant had to be asked on the record whether he wanted to plead guilty. He had to answer “Yes.” He was then asked whether he understood that he was giving up various constitutional rights, including the right to a trial, by pleading guilty. He had to answer “Yes.” He would then be asked whether he had been forced or coerced to plead guilty or whether he had been offered any inducement to plead guilty other than the offered plea bargain. He would have to answer “No.” Such an allocution took about a minute, and the defendant would then be led back behind the courtroom. If the plea included immediate release, some paperwork had to be filled out and then he could go. If he had people in court for him, I would go to them and tell them what had happened and where they could go to meet the defendant.

There was an advantage if I had worked with the assistant district attorney and the judge before. If so, I often had a good idea of what a plea offer would be before it was made, and I would have discussed that possibility with the client back in the holding cell before the arraignment so that he could think about an offer before having to make a snap decision in court.

The limited time that an accused had for the important decision of whether to plead guilty bothered me. I was also often disturbed when I was representing multiple defendants and a plea was offered. The prosecutor and judge were dealing partly to get the case over with, and that would require a disposition from all the defendants. If three out of four were willing to plead guilty but not the fourth, the case continued and would take basically the same amount of time in the future as if none had pleaded guilty. Thus, the deal was for all or for none. This presented an ethical dilemma. If the case went on, each defendant would have a separate attorney, but at the arraignment I was representing them all, and this presented a conflict. I was simultaneously the attorney for someone who wanted to plead guilty but could only do so if all pleaded guilty and a person who did not want to plead guilty. A way out of this ethical conflict was to have the case continue so that separate attorneys could be appointed, but that conflicted with the court’s desire to get dispositions at arraignments and the desire of those defendants who wanted the case over immediately. The court never cared about the ethical conflict, and I never found a good way to handle it.

While many cases were plea bargained, defendants often rejected the offered deal. Many other cases were not plea bargained because the charges were too serious to be resolved by a misdemeanor plea. Such cases would live beyond that initial court appearance. Then the proceedings returned to another formal part of the arraignment—the setting of bail, but I will leave that for another day.