INDEFENSIBLE: One Lawyer's Journey Into the Inferno of American Justice (29 page)

      
Now this is a
good
sign: Adler is asking the right questions and in a tone that is perfectly consistent with what I’m asking for.

      
“The People oppose any reduction in bail,” says the ADA blandly.

      
“Have you seen the statement?”

      
“Yes, Judge.”

      
“And you still oppose a bail reduction?”

      
“Yes, Judge.”

      
“And do the People have any indication that there is any other witness to this crime other than the one Mr. Feige is talking about?”

      
“No, Judge,” says the ADA.

      
And that does it.

      
“ROR,” says Adler, using the courthouse slang for “released on recognizance.”

      
Jaron sighs, my shoulders slump, and I offer up a silent prayer of thanks to the gods of investigation as the court officer slips the key into the tiny hole in Jaron’s handcuffs and, with a delicate twist, sets him free.

      
It is twenty minutes after 3:00, the day slowly slipping away. “Go home, get some decent food, call me in the office tomorrow,” I tell Jaron as I hand him the blue court appearance form, pat him reassuringly on the shoulder, and bolt for the door.

T h i r t e e n

3:23 P.M.

      
Garishly lit by long fluorescent tubes, part N (across the hall from where Jaron was just released) was originally designed to allow some natural light to filter in through a narrow recessed window placed just above the dais from which the judge presides. Sadly, not much seems to work out in criminal court --not even the architecture. In front of the weirdly located window, the architect inexplicably placed a series of vertical wooden beams that block out much of the light. The net effect is almost unnoticeable unless a pigeon lands on the ledge outside the window. Then instead of just an example of clumsy design, the construct becomes a perverse tableau. With the birds roosting outside, the window resembles a cell --a tiny pigeon jail atop the courtroom.

      
Like part F, part N processes felony cases until they are dismissed, pled out, reduced to misdemeanors, or indicted and sent across the street to Supreme Court. And just like part F, part N has no jury box --it’s just a big plea-bargaining locale, one of the large sorting machines of the criminal justice system. But unlike part F, part N deals with one very specific subject: drugs. Drug cases are the engine that drives the criminal justice system. In the Bronx, as in much of America, drug prosecutions are so pervasive that they get their own special courtrooms. And in a certain strange way, everyone in the system relies on these cases. But for the continued criminalization of smoking, sniffing, or injecting a lengthy list of compounds codified in the federal Uniform Controlled Substances Act, the entire prison industrial complex might well come tumbling down, leaving tens of thousands of unemployed prosecutors, corrections officers, court clerks, public defenders, and judges.

      
Given the hallowed place of drug crimes in the machinery of prosecution, it makes sense that part N is one of the largest courtrooms in the criminal court building --and one that is almost always crowded. Drug cases have a cookie-cutter uniformity to them, and they arrive in a nice steady stream. And in terms of producing inmates, drug cases are brutally efficient.

      
With Jaron free, I should really head back downstairs. It’s been forty-five minutes since I left Najid, and his case will probably get called any minute. But just as I emerge, racewalking, from part F, it suddenly hits me --I had Malik produced today.

      
“Produced” is courthouse slang for “brought to a courthouse near me.” Very few public defenders ever go to the jails that hold their clients. The Department of Corrections hates having lawyers on Rikers, so they make it hard to visit and easy to avoid: hard to visit because between getting to the island and navigating the series of checkpoints and passes between the front gate and the client, even a routine visit will eat up an entire afternoon; easy to avoid because with a phone call to the legal division, I can have a client brought to a courthouse near me. The net result is a win-win for lawyers and the Department of Corrections, and a big lose for clients who are woken up at 5:00 a.m., shipped out at dawn, and spend an entire day in the bull pens just to get a few minutes with their attorneys.

      
I’m no different from my colleagues in this; I have clients produced all the time. And because of a calendaring quirk, Malik is almost certainly sitting in a cell behind part N, not sixty feet from where I’m standing. All I really need is two or three minutes with him, and so, even though I know with total clarity that I should run downstairs to try to catch Najid, I decide to try to squeeze in a quick visit.

My second mistake of the day.

- - - -
 

      
As I head into part N, I glance over at the case list posted on the worn corkboard outside the courtroom door. There are fifty or sixty people on the list. All of them are charged with drug felonies. So too are the people waiting inside --either on the scarred wooden pews lining the courtroom, or in the crowded cells behind the steel door on the right side of the well. Most of them are charged with low-level drug sales, usually less than forty dollars’ worth of coke or heroin. Almost all the rest are charged with possession --a crime that can bring years in jail for half a gram of cocaine and a life sentence for a few ounces.

      
Most jurors on a drug case, particularly in Manhattan, seem to think that the convictions are no big deal, that the defendant might get a few months in jail. Explaining actual penalties to jurors after a conviction regularly provokes a kind of hostile shock and disbelief. “But we only found him guilty of a twentydollar sale,” they’ll say incredulously when I tell them that the absolute statutory minimum for the client is four and a half to nine years in prison and that the judge is probably going to impose a sentence of around seven and a half to fifteen years.

      
Even well-educated people don’t really understand just how pervasive the mandatory minimums are, nor how astonishingly punitive. Many still imagine that mandatory minimums only apply to big drug dealers or federal cases. Nothing could be further from the truth. In New York state, simple possession can draw decades. Such draconian drug laws create a steady stream of bodies that feeds the criminal justice system. But unlike murder cases or arsons, which begin with the crime itself, drug cases are actually generated by the police. In most cases, in order to charge someone narcotics cops have to go out and create a crime, usually by buying drugs from dealers and charging them with the sale. And at times (as in the rash of cases in which cops, posing as strung-out addicts, beg other addicts for a sip of their methadone and then charge them with selling) the line between entrapment and honest policing can become rather blurry.

      
Although there are a few variations, the vast majority of the drug sales prosecuted in the Bronx are undercover buy-andbusts --rather unimaginatively referred to around the courthouse as “B ’n’ Bs.” There are thousands of these cases every year, and they run pretty much the same way every hour of the day, every day of the year.

      
In a buy-and-bust, an undercover police officer goes to a corner or building looking to buy drugs. The dealer asks how many, the “buyer” names a number, and money is passed in exchange for the drugs. The “buyer” walks away. Rather than run to the nearest crack house to smoke as a normal addict would, the officer heads for an unmarked car parked two or three blocks away and radios a description of the seller to the backup team --usually eight or ten other cops parked in various spots between two and four blocks away from where the buy went down, a place described in the strange argot of cop-talk as “the set.”

      
Because drug deals usually happen in public places --busy street corners or the darkened hallways of decrepit buildings --the description of the seller becomes critical. So attached to the description is another vital piece of information: the JD name.

      
JD stands for “John Doe,” which in cop lingo means “suspect.” Unique JD names are used to describe each seller, and the JD name is supposed to incorporate the most obvious aspect of the suspect’s description --“JD Dragon Tattoo” or “JD Ponytail” or, the best JD name I ever heard, “JD Braided Beard.” The JD name and the description are the recipe for the arrest when the backup team roars to the set to apprehend the seller --and the accuracy and specificity of those two items have a great deal to do with the strength of the resulting case.

      
Of course, drug dealers work fast. A buy usually takes about fifteen or twenty seconds. There is rarely, if ever, haggling over price. Everyone knows what is being sold. Street drugs like crack and heroin come in dimes and nicks --ten- and five-dollar bags or vials so that figures are round and easy to work with. Four nicks is twenty dollars. Three dimes is thirty dollars. (Thanks to inflation, the early days of treys, or little three-dollar starter vials of crack, are long gone.) Because of the easy math and the rules of the street, undercover officers often don’t have a lot of time to look at the person they are buying from. Compounding this issue is the fact that street etiquette seriously frowns on people staring at other people’s faces. The common position during a buy is eyes downcast, staring at the jacket pocket of the seller or maybe the ground. Staring into someone’s face is called “raising up.” Dealers don’t like it. It can provoke a canceled transaction or sometimes worse.

      
Because the street price of drugs is so stable, what distinguishes dealers in the minds of their customers is the quality and quantity of the drug they get per five- or ten-dollar unit. And with drugs in bountiful supply and crackheads a competitive demographic, dealers regularly borrow the branding lessons of larger corporations, trying to make their product distinctive --but not too distinctive. Packaging varies widely, and the subtle differences in vials and decks denote different gangs, drug spots, or dealers. For example, if dealers on Morris Avenue are selling vials of crack, those vials may have a particular stopper color. A drug user arrested for possession might admit to “copping red tops at 168th and Morris,” meaning that the crack for sale on that corner will have a red stopper.

      
Generally speaking, crack is packaged in vials or small bags, which themselves come in different colors, while consumerlevel heroin arrives in glassine envelopes --tiny squares of waxy paper. Often called decks (ten decks to a bundle or pack), the envelopes are stamped with a unique name. The dope names mirror the weird, vaguely dangerous chic of heroin itself: Poison, Double-Trouble, or 3D.

      
The downside of branding, of course, is that it gives the police a way to match particular drugs to particular sellers. If, for example, an undercover cop buys three green-top vials at the corner of 183rd and Creston Avenue, and the backup team arrests a seller with a bag full of green tops, that’s pretty good evidence that they got the right seller. Similarly, a cop who buys two glassines of Triple Threat heroin is going to be pretty pleased when the seller the backup team snatches is holding twenty or thirty more.

      
In the slang of the buy-and-bust, matching drugs are known as stash. Stash is half of the simple buy-and-bust evidence matrix. The other half is cash. Cash is technically known as “prerecorded buy money,” and though it sounds like a high-tech crime-fighting tool, it’s really just a bunch of regular fives, tens, and twenties that are Xeroxed before a buy. The point is to record the serial numbers of the bills that the undercover cop will eventually use to make buys. When the backup team lines up a few of the guys on the corner who vaguely fit the description, the one with the stash or the cash (that bill with the matching serial number) is almost certainly the one who’s going to get pinched.

      
Because the vast majority of drug sale cases don’t utilize anything more complicated than cash, almost every buy-and-bust case falls into one of four essential categories, each replete with a trial strategy and pat explanation. Veteran public defenders, judges, and prosecutors tend to know the four options cold: No Stash, No Cash; Stash, No Cash; Cash, No Stash; and the always very scary and very hard to win Stash
and
Cash.

      
Omar had both stash and cash.

      
One of my very first drug trials, Omar’s case taught me just how complicated even simple cases could be --and showed me a whole new way of thinking about buy-and-busts.

      
Omar saw them coming. He’d been selling drugs for half his life and could pretty much smell a cop from a block away. It was getting toward dusk, and St. James Park was almost empty --a few dope fiends lying around on the benches, too out of it to notice much; a couple of kids playing ball on the glass-littered blacktop; a young woman pushing a kid in a stroller. And then there were the narcs, and they were heading right toward Omar.

      
Normally he might have run or ditched his stash, but the thing was, Omar wasn’t actually selling. Ever since he’d gotten out of jail he’d been doing things right. He had a little off-thebooks job as a maintenance man, a nice wife, and a decent life. He hadn’t been out pitching (being a seller in a retail drug operation) in years, and so, unlike so many times in the past, Omar had that strange calm that only comes from living on the right side of the law.

      
A shitty rented Dodge sedan pulled up, and four burly men jumped out, yelling at Omar to freeze. Behind the Dodge, two police vans came squealing down the street --all told, nearly a dozen cops. Omar stood perfectly still as they searched, upending the nearby garbage can, looking under the fenders of nearby cars, patting him down, going inside all his pockets, turning his jacket inside out, running their hands over his socks, dipping their index fingers inside the elastic of his underwear --searching everywhere for the drugs Omar knew he didn’t have.