Fund the Police . . . And Others, Too (continued)

By the time of the shooting on my Brooklyn block, I had had many more encounters—nearly daily ones–with the police; I had become a public defender. I learned that police officers were not all the same. Some cops were smart and some dumb; some were defensive and some forthright; some were engaged and some apathetic; some had empathy and some did not; some were nice and some were assholes  They weren’t all the same, but still “the police” as an entity applied.

Although they were individuals, it was always clear that they belonged to a particular tribe—the police—that separated them from everyone else. That was most apparent in their dealings with prosecutors. We might have said that prosecutors and defense attorneys were on opposite sides of the fence, but we also knew that police saw us as just variations on a theme. The barrier between prosecutor and defender was a temporary, professional thing. We might be drinking together in the evening, and we might switch sides in the future. To the outsider, the police and the prosecutors appeared to be on the same side, but both police and prosecutors knew better. Both had the job of enforcing the law, but the police held themselves apart. Police officers are individuals, but they share a life that is different from the lives of lawyers—and doctors, teachers, plumbers, construction workers, and computer programmers. The police are a tribe distinct from the rest of us.

My early work as a lawyer was defending drug cases. The prosecution’s primary witnesses were invariably police officers, and often the only chance of winning an acquittal was to convince the jury that the arresting officers were not telling the truth. Jurors seldom wanted to believe that, and it was easier for them to think that a cop was mistaken rather than that he was lying. Sometimes, however, the only possible way to an acquittal (which did not happen regularly) was to argue that the cops were liars. Did they lie? Probably not as often as I suggested, but without a doubt they did.

For example, when a defendant was first brought to court, I would go into the holding cells and inform him of the charges. I might say, “The officers said that you had in your jacket seventy-two glassine envelopes containing what looked like heroin, but we will have to wait for the lab report about the envelopes’ contents.” This was sometimes met with the shout, “That’s a lie. I had over 150 bags!” I would look him in the eyes and say, “So let me understand. You want me to tell the judge that you had even more drugs than what you are charged with?” First a look of bewilderment, then one of understanding, and then one that recognized the uncomfortable reality of his predicament. And then a look of even greater hatred for the police.

Maybe on rare occasions unvouchered drugs were for the cop’s use or for sale, but often they would go for the maintenance and development of informants who often had a drug habit. Enforcement of drug laws has always been a messy, dirty business. On the other hand, there have been famous instances of police corruption in which cops did profit from seized drugs.  One of my first big cases involved a special narcotics unit best known for the French Connection case that ended up in a movie in which vouchered drugs went missing. In my own case, pounds of heroin had been seized, analyzed, weighed, and sent to the police office where evidence was kept. Before the trial, which was several years after the seizure, the white powder, which was in several packages, was analyzed and weighed again. Package A weighed more than it had twenty-eight months before. I questioned the police lab guy about this discrepancy, and he said that a powdery substance, even though sealed in layers of police plastic, could draw water out of the air and, thus, weigh more now than it did years ago. He loved saying “deliquescent.” I asked about Package B which, we (and the jury) were told, was secured and stored precisely the same as Package A. I then went back to the lab reports. Package B, treated the same as Package A, now weighed less than it had when it came into police custody. So I asked how it could that the powder in one package had drawn water from the air but the other had apparently lost water to the air. The lab tech had no explanation. He didn’t use the words, but in essence he said, “It is what it is.”

Underlying this was a basic fact about the drug laws. We might have said informally that the police had seized “two pounds of heroin,” but in fact, the true legal terminology was “two pounds of powder containing heroin.” Whether the two pounds contained one percent heroin or fifty percent heroin, it was the same crime. The level of the crime was set by the total weight of the powder, not the proportion of drugs in the powder. Cutting the powder was not unknown. Take two pounds of the powder, remove one pound, and fill the package back up with Gold Medal flour. (For reasons I never knew, the flour cutting agent was always said to be Gold Medal, not Robin Hood or Hecker’s or some other flour.) There would still be two pounds of a powder containing heroin. I don’t know if this had happened in my case, but something odd was going on and I said so. The jury was skeptical of the police and acquitted my client of the heroin charges. (He was convicted of possessing a sizeable amount of marijuana—I think it was nine pounds—and went to jail for nine years, which was a lot less than the life sentence he would have received for possessing kilograms of heroin.)

Money was also undercounted. I might tell the defendant at that first court appearance, “The criminal complaint says that you had 28 bags of heroin and $742 in small bills.” Sometimes the defendant would reply, “That’s a lie. I had over $1,500!” And I would say, “You say you don’t have a job. You can’t explain how you had $742 much less twice as much.” The defendant would absorb this, and it was not mentioned in court. I never believed that the pilfered money was going to informants. I only hoped that it made the cops’ kids’ lives better.

So, yes, cops lied. Whenever there is enforcement of what might be called lifestyle crimes—drugs, prohibition, prostitution—lying and corruption too often follows, but the lack of the truth is not confined to these areas. What were called “turnover arrests” also caused lying. In New York City, an arrest required paperwork and custody. This was the job of the arresting officer, but if the arrest happened late in the shift, the duties might carry on past the scheduled quitting time. Often the officer was happy for this (and this could affect the timing of arrests) because overtime pay was involved. But the officer might have been tired and needed sleep or had family obligations or whatever, and the officer wanted to leave on time. The officer might then turn this arrest over to a colleague coming on duty or who wanted overtime. The arresting officer would explain why the person had been arrested, and the second officer would do the paperwork as if he had wielded the handcuffs. Of course, this was not the truth, but most often there was little risk that the lie would come out. Almost always the defendant took a plea bargain. However, once in a while, such a case went to trial, and interesting situations could arise.

One sticks in my mind.  A man with many previous convictions was charged with possessing a loaded handgun in Times Square. On the evening before jury selection was to begin, I got a call from my prosecutorial counterpart who told me that the “arresting” cop was lying. It had been a turnover arrest. I was almost amused. I had not had a viable defense before the call. The defendant, because of his prior convictions, would not be offered a meaningful plea bargain. His sentence was going to be the same as if he went to trial and lost, and thus a miracle verdict, unlikely as it was, was the only possible hope. “Great,” I thought. “For the first time, I can actually prove the police are lying, but if the real arresting officer comes into court and explains everything, I am still facing seemingly irrefutable proof that my client possessed the gun. I can prove the cops were lying, and we are still going to lose.” My lawyerly ass was saved, however, because the District Attorney decided to dismiss the case. (I was told later that the prosecutors went through a good deal of soul searching as to whether the cops should be charged with crimes. They were not.)

In these turnover cases, and even when a lesser amount of drugs was vouchered than seized, the police were not trying to frame an innocent person. They felt that they had a guilty person and that that guilty person would still be prosecuted and punished. Even if officers were not telling the full truth, I could understand why and was not sure how I would have reacted had I been in their shoes.

However, it is not this level of police misconduct that has drawn the recent ire, protests, and calls for reform. It is unnecessary or wrongful police violence.

(Continued October 5)

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.

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)

Confessions of a Sometime Public Defender

Over the last eight years, I have volunteered at a couple of public defender offices. I started my legal career as a defender and going back to that work after decades made me remember how hard it is to be a public defender. It certainly was difficult for me at the beginning of my career when I tried many cases.

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 and 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, as I, was a graduate 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, with five others, was assigned as a public defender in these newly opened courts. Cases were transferred there from all around the city. Because of the backlogs in the other courts, many of the cases were old, no acceptable plea bargains had been negotiated for them, and a stack of cases was waiting to be tried. Our new courts were for the purpose of trying 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. In some sense, 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 down my mind about them. I put the notebook by the bed because almost every night I would wake up several times thinking about my clients.

Mostly I lost the trials. I knew that this was normal. Defendants are convicted 75% of the time, 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 was a miracle if a defender won half the cases. Even though I knew these facts, I had not learned a necessity for a public defender: how to cope with losing. I consider myself sane and balanced, but this was the one time that I felt that I could be 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, then convicted, and immediately handcuffed and shoved into a cell behind the courtroom. I never wanted to see 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 had to fight when I went to see Abraham S., who had been out on bail, 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 something to be desired 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. I realized that after a not-guilty verdict I did not feel elation or gratification. I did not even feel a 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.

(continued May 31)