In the public's defense
"The system grinds people up - it's design to grind them, and see if they crawl away."
Picture this: You’re in college, visiting New York City. It’s spring. You go to a concert with some friends, you have a few drinks. You take one with you for the subway ride back to the couch you’re sleeping on. Somewhere along the L train line, you get a ticket for an open container. It happens, right?
Now, fast forward 6 years: You’ve forgotten about the open container ticket. You’re having another beer with different friends on a stoop somewhere else in the city. It’s summer. Cops pulls up: You’re busted. They say they’re not going anywhere unless someone lets them run an ID, so, thinking nothing of it, you hand them your driver’s license. Notwithstanding the outrageous, unspoken white privilege assumed in such an act - “what do I have to worry about? I’m just a young man enjoying some drinks with friends,” it’s a naive, stupid thing to do. Let them run somebody else’s ID.
Of course, the old open container ticket has metastasized into a warrant for your arrest (more white privilege - “why do I need to pay a stupid open container ticket?”), and the cuffs are on your wrists faster than you can say ‘art school’. That’s the end of your night: It’s off to the clink with you.
Annnd, scene. But keep it in mind moving forward. We’ll come back to it.
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A few years ago, I sat in arraignment court in downtown Brooklyn. A filmmaker friend had told me that the court was open to the public, and having recently finished a documentary, I thought that watching the proceedings unfold might help me find a new project to work on. And also, that story above? It happened to me, of course. So I had been through the arraignment process in the past. But more on that later.
Trying to follow the logic of the proceedings as defendant after defendant appeared before the court to hear the charges being brought against them, one thing became very clear. For the vast majority of the people I watched appear, the only thing separating them from their families, their situations, their freedom, and pre-trial jail time was their court-appointed public defender.
Which brings me to the subject of this interview. Part two of our criminal justice system series features a veteran public defender. Meaning, he has for many years been appointed to represent people who otherwise can’t afford to hire a lawyer. Statistically speaking, this means that his clients “are more likely to get longer sentences and tougher probation criteria than if they were represented by private defenders”. However, I didn’t get the sense from his vibe or performance in the courtroom that that was more likely to happen at all.
I was struck by the way he conducted himself and the results he got. Sure, his suit was the color of stale coffee and sported a subtly 1970’s silhouette. But more often than not, he was able to help his clients avoid pre-trial jail time. He acted crisply and confidently, summoning family members or co-workers or counselors to add helpful shading to the picture of a client’s situation. He proposed supervision, counseling, innovative programs. The prosecutor and judge took him seriously, but also bantered with him. As if, despite being adversaries, they all knew each other well. This was strange, but weirdly natural. By the end of the afternoon, I really wanted to speak with him. What was his unique perspective on his role in the legal system? How did he think it could work better?
When I finally tracked him down, on the phone, he was streetwise but warm. Fitting for a guy who is busy helping people at the bottom of the system, so to speak. Who don’t have access to family with connections and money to get out of jail the easy way. With that in mind, who better to show what the system’s inner workings do to people than someone who is its last line of defense?
Our interview has been edited and condensed for clarity and flow.
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What’s it like to take on a new case as a public defender? Not to be presumptuous, but you must get jaded after all these years.
When I greet a new client, I ask them how they are. I want my clients to know, I’m not here to judge you. I’m here to help you. Attitude towards clients is everything.
Do you need to know if a client is guilty or not?
Guilt or innocence doesn’t matter. We focus on what we can win. Still, whatever happens, happens. I don’t expect them to like me, believe me or trust me.
Why not?
Where I work, people call me to talk to their clients when they’re not doing the right thing. I persuade them if the evidence doesn’t show you’re innocent, you’re gonna lose.
There must be an urge to try and win for your clients every time, no?
Experience teaches you not every case is going to win. As you get older you realize which ones. I’m a patient person, less so these days, but more than most. Some clients are needier than others.
Do you remember one client’s case in particular?
(thinks) I had a client, 25 years ago. He bit someone’s finger off. We won at trial. But while he was in jail awaiting trial, he lost his house for non-payment, I believe. Couldn’t do anything about it. It was a derelict house, but it was still his. 25 years ago, and he still calls me about 3 times a week to help him try and get it back. He has dementia. I could say “I’m done with you.” But I talk to him.
Is it difficult telling a defendant the plain truth about their case?
There are lawyers that say “I’m not talking to you about that.” To me, that’s not right. So I talk to everybody, and I try to direct conversations - that’s just experience. You should treat your clients as if they were paying you directly.
Note: In 2019, New York state got rid of cash bail for most offenses save for violent felonies. There was an immediate backlash after news reports highlighted cases in which people were re-arrested after being released without bail, and the NYPD put out statistics showing crime was going up. In April 2020, legislators expanded the number of charges that will allow judges to hold people on bail. Now, the system is in mid-reform, while the pandemic continues on.
Can you give me your long view, in-a-few-words sense of the legal system?
The system grinds people up - it’s designed to grind them, and see if they crawl away.
How so?
In Brooklyn, judges use the idea of defendants going to trial as a punishment. The system only works by getting 90% of people to plead guilty. In effect, the way they do that is by saying, “if you don’t plead guilty we’re going to kill you” I.e. send you to jail.
Note: In the Southern District of New York, over 95% of all criminal cases result in a guilty plea, as of 2016. Meaning, if you go to trial, you are overwhelmingly likely to face the stiffest possible consequences.
Why would that approach make the system work better?
Because you can’t have everyone going to trial. It wouldn’t work - you can’t try twenty thousand cases a year.
Do you take that into account when you’re building a case for a defendant?
The number of cases piling up does become a kind of weapon against the state. The overwhelmed DA starts to offer better plea deals as the number of cases pile up, Christmas is around the corner…
Holidays play into that calculus?
You get what I’m saying.
What’s the difference, mindset-wise, between a defense attorney and a prosecuting attorney?
Defense - we’d rather air on the side of innocent people not being in jail. Prosecutors would be at most 50/50 on that - they’d rather not risk not having guilty people in jail.
Note: As New York City continues to try and reform its bail laws, it’s worth keeping in mind other ways that the system is set up to reward the wealthy and disadvantage the poor. According to GlassDoor, the average salary for a government-funded New York City public defender is $50-$82k/year. Whereas a private defense attorney pulls in $85k-$170k, and, for those tonier prices, bestows better legal outcomes for their clients. It pays to pay.
You have spent a long time defending people accused of committing crimes. Why do people commit crimes?
95% of people commit crimes because they’re poor and they need money. 5% of people do so because they’re awful people.
You see poverty as crime’s main driver.
It’s driven by race, driven by money, driven by power.
Rich people break the law all the time.
Is it because we have freedoms? People are free to break the law.
Do people break the law because they are free, or because they aren’t?
Daryl Strawberry broke the law and he never went to jail. But I have tons of clients who used coke like he did and spend time in jail.
Note: In 1999, Darryl Strawberry, then a power-hitting star right fielder with the New York Mets, was arrested for soliciting sex from an undercover cop. He was in possession of a small amount of cocaine.
How can we take the legal system seriously when even relatively small double standards like that are allowed to exist?
Anybody who is a little honest sees the criminal justice system and its obvious disparities, whether you’re talking stop and frisk, the fact that there are good cops and bad cops, and knows the system isn’t fair.
Is it unfair in how it’s implemented, or unfair by design?
I had a client who sat in jail 6 months before going to trial for cutting his sister in law. We said it was an accident, and we lost awfully. At sentencing, the prosecuting DA came in with my client’s sister and asked for the minimum sentence. The terrible judge gave my client 15 years. We appealed, tried to get him out. He ended up doing 12 years and now he’s got psychiatric problems.
The point is, incarceration and rehabilitation are not the same thing.
Is the system broken beyond repair? Or salvageable?
You can walk into any courtroom. You’re going to see a sea of colored faces. You won’t see as many white faces.
So it’s broken?
The more difficult question is: Which system is better?
Which system is better?
There’s a nationwide change - we’re moving towards de-carceration.
How does that work?
In 1985, when I’d come into arraignments, clients would have been sitting in jail for 5 days, for a robbery or even if it was just a traffic violation. Everyone would be sitting together and we’d be sitting there with them, and they’re covered in sweat and poop and everything else. About 15 years ago that changed.
Even 2 yrs ago, for pot or a warrant - they’d keep you in for days, weeks, months awaiting trial. Now you can have warrants, a record, even for some non violent felonies, they’ll let you out before trial.
How do you feel about that, as a public defender?
I’m fully on board with it. It’s ridiculous the way it was done before. If they set bail at 30 days, you’d take it because it meant you’re gonna get out at some point, at least. You know, generally speaking, for a serious case people wait a year in jail to go on trial. There are many moral arguments against that.
Note: A 2018 report from the Hamilton Project found that on average, a person unable to post bail can spend anywhere between 5 and 200 days in jail waiting for their court appearance.
Do you see political pushback to the de-carceration trend?
Nationwide, even really conservative people understand that all these pot and drug cases are not worth jail. Even the DA’s are on board with de-carceration. We need to think about legalizing drugs and maximizing drug treatment. Minimizing gun play between drug dealers. Delegitimize gangs as moneymaking enterprises. These are not just liberal viewpoints anymore.
Addiction is a sickness. Now they’re offering more programs, supervised release, mental health court, although there are still too many mentally ill people going to jail.
Is the system becoming more fair?
Well, then there’s the financial case for de-carceration- the powers that be want people out of jail to save money. Recidivist train hoppers spend 30 days in jail, it costs $500/night not counting courts and attorneys.
I would say, we are moving towards a day with more, better DNA testing, and everything evidentiary being on video. If there’s DNA in a case it helps, same with video. Cautiously, I’d say the system is moving in a direction that’s more just.
Note: All Police Officers, Detectives, Sergeants and Lieutenants regularly assigned to perform patrol duties throughout the city are equipped with body-worn cameras. The NYPD body-worn camera program is the largest in the United States with over 24,000 members of the Department equipped with body-worn cameras.
How do you take advantage of these developments as a defender?
Case loads are down - the state mandate is 70. It used to be over 100, even 150, now there’s a limit. You have a bit more time to make sure that, as a case moves along, you can do the factual work, and take advantage of what’s available.
Are there other ways of working within the system to avoid jail time, pretrial or otherwise?
BJI (Brooklyn Justice Initiatives) do what’s called an “objective formula assessment”. If it’s beneficial, you ask them to speak to your client. They do the assessment and try to set up supervised release - modified parole - with someone watching over the defendant in order to get the judge to release.
Note: The Brooklyn Justice Initiative is part of The Center for Court Innovation, a joint public-private organization. Its stated mission is to “improve how the centralized criminal court in Brooklyn responds to misdemeanor and felony cases.” It is one of many organizations committed to criminal justice reform.
What are some of the drivers of mass incarceration that people might not think about?
Why do we teach incoming cops “shoot to kill”? Why does the cop still finger the black guy in the nice car? It’s who gets stopped, it’s who gets searched who ends up with a court appearance, with a record or incarcerated.
You know, institutionally, judges are all told to let people out, but some are grated by this, it rubs them the wrong way. Young judges sometimes have a hard time with that. Judges brains - they like to fill in blanks. There’s a ton of evidence about this.
And then there’s the fact that eyewitness testimony can be wildly inaccurate. Experts who testify about the unreliability of eyewitness testimony. There are hundreds of thousands of people in jail based on eye witness testimony - what do you do about that?
What can you do to mitigate all that?
For most people, doing the dance is important. You get things for your clients by knowing how to time requests, present motions, press the system. There are moments to cooperate and get along, and moments to fight.
Knowing how to play the system, having a reputation - are these things helpful to your clients?
I know people and people know me. I call people and I tell them “this is what’s fair”. I’m trustworthy in the eyes of the opposition. I can also get things done by knowing the DA (laughs).
How does that work?
I’ll call the DA, and they’ll say “hey if there’s an injustice, come to my deputies and we’ll hear you and straighten it out.”
After all these yeas, do you like your job?
I’m a dinosaur now, but I always wanted to do this. Sometimes it can be like watching paint dry, being in the office. But I know what poor people have to overcome in order to overcome being poor. It’s so impressive when people are able to do it.
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Back in arraignment, I remembered what had happened in the days after I had been arrested for the lapsed open container ticket way back when. It all unfolded in a blur. Two cranky cops brought me down into Brooklyn central booking, a facility not far from the courtroom I was currently sitting in. After getting searched, I remember being moved around a series of cells, handcuffed to different people at different times when it dawned on me what was really happening: You’re gonna be in here for a hot minute. Cop after cop, all of them looking like they’d eaten a bad clam, hurried around the facility, trying not to make eye contact. I realized that they hated this place as much as the rest of us. Finally, after a lot of getting up, sitting down, getting up, sitting down, I was deposited into the 10x20 foot cell where I’d spend most of the next 24 hours.
Shaking in my boots but determined not to get to get messed with, I took a seat on the ground near the bars, underneath the pay phone. I tried to sleep but couldn’t. I tried to relax but couldn’t. People were lying on the ground. A clogged toilet perfumed the cell. After a while, there was some commotion. I saw a scared, confused Hispanic man who clearly had something like Down Syndrome get punched, then kicked, then stomped by a sinewy, cracked-out white guy, because his sandal got moved, I think. No guards came, and everybody cheered. Shortly after, someone lit the end of a joint, and guards came, so we were handcuffed, taken out of the cell, and searched. During this melee, a black teenager, shackled to another black teenager, and another, and then to me, said, “it’s like Amistad, but we in Nikes.” Later, a babyfaced kid who couldn’t have been older than 18 was brought into the cell by two cops in sport coats. Smirking, they shoved him in and slammed the bars shut. “Enjoy,” they said, “you’re just getting started.” Turns out, he was being accused of firing a handgun out of the window of a car and hitting a three year old girl and her father. He spent a good chunk of the day staring straight ahead with a cocky, hopeless expression I’ll never forget: “I fucked up so badly someone important is finally paying attention to me,” it seemed to say. But who knows. Later, he was advised by two large men in their 50’s, veterans of the system, on the ins and outs of pleading guilty. While I had known a few friends who had taken their own lives or become addicted to drugs, I had never actually seen it dawn on a person in real time that their young life was over. I don’t know what happened to him, or how he pleaded.
Eventually, we were served kid-sized cartons of warm milk and sandwiches made of two pieces of bread and what seemed like earwax. Multiple people advised me not to eat the sandwiches, “because of government mind control.” A white junky next to me kept nodding off, using his complimentary sandwich as a pillow. Upon waking, he’d reassure me about my case, then nod off again, then wake up again, forget we had spoken and proceed to reassure me about my case all over. Then he’d nod off again. Guys came in scratching at their bodies, starting to withdraw. Guys came in angry, bewildered, having panic attacks. Guys came in happy to see other guys who had just come in.
But mostly, the people I shared my cell(s) with were reserved black men who were in there because of petty pot offenses. They were picked up, targeted on their way to work, on their way home from hanging out with friends, just enjoying a night out. None of them had money to pay for a lawyer. One guy, D, was quietly sitting in his car in front of his apartment smoking a joint by himself when he was arrested. He worked at a restaurant and was missing his shift to be here at taxpayer expense. Despite all this, and having spent a full 24 hours in the cell longer than me, he was unfazed by what was happening. Or that was the mask he wore, anyway.
Eventually, I called my girlfriend, who called my family, who called a DA friend, who called a private lawyer, who was on his way back from the Cape but agreed to stop in and represent me because he knew the judge and could get my case bumped to the front of the line. Don’t get me wrong, I was really happy at this turn of events, overjoyed even, and I remain very appreciative of my family’s generosity. But such are the minor schemes that grease the larger machine of white privilege. Sure enough, shortly after I heard my family had paid to retain said lawyer, 20 some hours after I had entered central booking, my case got called. As I stood up to leave the holding cell to appear before the judge, my cell erupted. It was full of guys, like D, who, because the system was clogged with meaningless cases, had been waiting for days longer than I. They were pissed off and rightly so. Why the fuck did they have to stay in there and I didn’t? They looked at the color of my white skin, my hipster clothes, and knew: He got preferential treatment because he’s white, and he could pay. Whereas they had to stew in central booking while the system worked its way through an ever growing stack of cases for their tired, tireless public defender to show up and, hopefully, argue their way back into something like freedom.