My Beloved World (30 page)

Dawn came to me in distress over another case we shared. “You’ve got to help me,” she pleaded. It was a sad story: Her client had lived his entire life in institutions, foster care followed by twenty years in prison for killing a man in a fight. Then, released on lifetime parole, he had been given no support but a bus token. Without life skills, unable to find a job, he survived by selling copper pipes that he stripped from a derelict building, not fully aware that this was theft. The terms of his parole were such that a single violation, even a plea to a reduced charge of disorderly conduct, would have sent him back to state prison. There was something about this man that made Dawn trust him. All things considered, he wasn’t doing so badly. He hadn’t been dealing drugs; he hadn’t robbed anyone. He wouldn’t have been stealing pipes if he’d had any help finding a job. He had even met a girl and was in love … Dawn talked me into accepting an ACD, an adjournment in contemplation of dismissal, and she got him into a job program. If he stayed out of trouble for six months, the charge would be dismissed.

One day, two years later, he would be waiting for me outside the courtroom. He introduced himself, shook my hand. “You don’t remember me,” he said. “I’m the guy who was stealing the pipes.” He had found a job and been promoted to supervisor. He had also married his girlfriend. By now, they had one child and were expecting another.

The quality of mercy: “It blesseth him that gives and him that takes.”

THE OCCASIONAL MERCIFUL IMPULSE
notwithstanding, I was racking up convictions. Whatever my insecurities—and I had plenty (still do)—I was also fiercely competitive (still am). I became addicted to the thrill of verbal sparring at trial, the exhilaration of having to reinvent strategy on the spot, not knowing whether it would work, under the specter of a judge who at any moment might catch me out with a
question. Fearing such humiliation, I prepared compulsively, the way I had in law school, and my reward was the chance to go out and risk it all again the next day. That I could never be sure of myself while doing it was a big reason I loved my work as a trial lawyer.

Notching up top-count prosecutions—convictions for the most serious charges—while giving up little ground in plea bargains became the adult equivalent of collecting gold stars in fifth grade. I liked the particular challenge of taking cases to trial with unsympathetic victims and unreliable witnesses, like the drug addict whose methadone was stolen by another addict, or the elderly couple with fifty felonies between them who were robbed by their young protégé, a grifter in training; or cases that were hopelessly circumstantial, like the jeweler whose half-million-dollar pouch of gems went missing after a family of Gypsies swept through his store—who could be sure the jewels even existed, until I managed to get them returned? I won quite a few of those.

Certainly, no one could accuse me of being a soft touch, but talking with Dawn always reminded me of the human costs of my success, the impact on an individual’s life and his family. Her perspective allowed me to trust the voice in my own head that occasionally whispered: how about exercising a little discretion; having a little faith in human nature? It wasn’t easy, with around a hundred cases on my desk at any time and constant pressure to dispose of them as quickly as possible. Cases with the same charge tended to blur together, especially since the DA’s Office offered standard plea deals for certain crimes: Possession of a gun? Settle it today, and it’s a class A misdemeanor. Make me wait, and tomorrow it becomes a felony. Forget about mitigating circumstances; I don’t want to hear it.

Still, I wasn’t willing to prosecute a case that I simply didn’t believe in, my zeal as a prosecutor finally circumscribed by my impulse to always keep both sides in mind. The impulse had first developed in Forensics Club as a matter of strategy, but in this setting it sometimes produced the inescapable awareness that, though I might win, justice would not be served. I was especially lucky, therefore, to have a mentor in John Fried, who embodied just that kind of measured attitude. Under an impossible caseload, his commitment to fairness was fundamental. If I believed in a defendant’s innocence or doubted a witness’s story, I
would knock on John’s door. We’d sit down together and analyze the evidence for as long as it took. In the end he might suggest offering a very low plea bargain, but he always left me an out: “If you can’t in good conscience try the case, then don’t.”

John’s essential fairness was of a piece with the idealistic standards that Bob Morgenthau set for the DA’s Office. Nevertheless, it often felt as if we were swimming upstream against muddy currents with the right answer not clearly in view. With each prosecutor handling around a hundred cases at a time, expediency and rough justice were the order of the day. We fudged, we made do with the tools at hand, we performed triage in the trenches, but we still made an effort to do it with integrity.

MAYBE MY PROSECUTING
misdemeanors with a ferocity usually reserved for felonies looked to some like real fire in the belly. In reality, it was still more like butterflies and the unremitting fear of leaving anything to chance that made me prepare and argue so intensively. But for whatever reason, I was among the first in our duckling group to be moved up to more serious crimes. By the time I switched to felonies, John Fried had moved up too and was replaced as bureau chief by Warren Murray. Warren had a very different style: extremely soft-spoken but a 100 percent hard-as-nails prosecutor. I worried about how I would fare under him.

I was given a handful of low-level felony cases and a few others that were being retried. One of those cases involved a purse snatching. The defense attorney alerted me that it was flimsy, and I was dismayed to see that the facts were indeed thin to the point of being nonexistent. The young defendant had a clean record. His teachers had described him as quiet, polite, well behaved, but developmentally slow. He’d never missed a day of school. I interviewed the victim, an elderly woman. She hadn’t seen the thief’s face as he ran up from behind her, heading in the general direction of the subway entrance. The police grabbed a confused kid they found sitting downstairs on the platform bench, waiting for his train home from school. The woman identified him by the dark jacket he was wearing, like that of the thief, though she couldn’t say what color it was. The purse was never found.

I wrote up a description of the evidence and took it to Warren. “You’re right,” he said. “It’s weak. But we have the indictment, and it’s our job to prosecute. Let the jury do theirs; they’ll acquit him.” I went back to my desk and pondered how to argue this to a jury. I went home to Princeton that night and thought about it some more. But I could imagine no way of standing up in court and saying with a straight face that there was sufficient evidence to convict.

By the time I marched into Warren’s office in the morning, I was full of righteous indignation, fiery but totally in control. “I’m not trying this case. I can’t lie to a jury. If you think you can go into that courtroom and argue that this is grounds to convict, then you’ll have to do it yourself.” I threw the file on his desk and walked out.

He came running after me. “Look, I just needed to make sure that you were sure.”

“Why didn’t you just ask?”

“Sometimes I figure I have to play devil’s advocate.”

I could have done without the drama. The office declined to prosecute the case.

THE FIRST TIME
I found myself before Judge Harold Rothwax, he was in a full-throttle tantrum over the many delays that had dragged out a case before I’d caught it on reassignment. “And now, obviously,” he shouted, “you’re going to tell me that you’re new and need a month to prepare!” I promised him that if he gave me fifteen minutes to confirm the availability of the witness, I’d be ready for trial the following week. That endeared me to him permanently. With plenty of misdemeanor trials under my belt, I had enough confidence—or the bravado of ignorance—to trust my performance under pressure. If nothing else, I knew my own standards of preparation. And sure enough, I would never once suffer the shame of his sarcastic warnings about “avoiding the dangers of over-preparation” dished out to so many other attorneys. I would, however, one time get a compliment of sorts out of him when, reading one of my motion papers, he allowed, “Misspellings are supposed to be a sign of genius. You must have plenty of it.”

Judge Rothwax dealt with all felony pretrial motions for my trial
bureau. He was painfully exacting and infamously unforgiving of lawyers who wasted his time, on one occasion sending defense counsel to jail for ten days for preventing the start of a trial. He was known as the Prince of Darkness, Dr. Doom, and Yahweh, among other epithets, particularly for striking terror in the heart of defendants whenever one with a weak case would decline his offer of a plea. His notorious stock line to defense counsel: “Your client has the constitutional right to go to prison for the maximum time allowable.”

But it wasn’t just fire and brimstone. Behind the infernal humor, a formidable clarity of mind and a keen legal acumen kept the docket moving with astonishing efficiency. A good judge must possess management skills as well as a deep understanding of the law. And there is no overstating the value of being able to keep all the facts of a case in your head. He might spend two minutes at a conference on a routine case, more on especially complicated ones, but two months later he would remember every detail.

However caustic, Judge Rothwax was no cynic, though like many a cynic he had been disillusioned, having started his career as a Legal Aid attorney and civil rights advocate before becoming a prosecutor. That early experience led him to conclude that given all the elaborate protections of the rights of the accused, any defendant whose case eventually came to trial was almost certainly guilty. In a controversial book, the judge proposed abolishing the
Miranda
warning and other rules that he believed handicapped the police and prosecutors; he also argued that a 10–2 jury verdict was close enough to unanimous for conviction. I wasn’t prepared to accept his presumption of guilt, although it is borne out statistically: policemen don’t normally make arrests on sheer caprice; most defendants do turn out to be guilty. But a probability of guilt doesn’t seem reason enough to revise our standards of due process. These are designed to protect everyone from the human frailties of those whom we entrust to enforce the state’s tremendous powers. Even if the vast majority of the law’s agents exercise these powers scrupulously, it is unconscionable that anyone should pay for a crime of which he was unjustly accused. Blackstone’s famous ratio (“better that ten guilty persons escape than that one innocent suffer”) still speaks to a deep-seated sense of what is just.

Though I differed with some of Judge Rothwax’s views of procedure, and didn’t have much use for his hammy Prince of Darkness persona, the integrity and rigor of his thinking, his passion for the law, and the efficiency of his courtroom won my admiration. And he, in turn, offered me kind encouragement, even inviting Kevin and me to his home. As with José Cabranes, the deepest respect could not make me into a good enough protégée to take all his advice. Nevertheless, during those years at the DA’s Office, a long-nurtured dream finally found a living example in Harold Rothwax’s black-robed presence, the first embodiment of an ideal I would be able to observe up close.

NOT LONG AFTER
I moved to felonies, I prosecuted the same defendant in two trials back-to-back. It was two different crimes; hence the two trials: the accused had jumped bail on an older charge of burglary, the outstanding warrant discovered when he was caught for a subsequent robbery. My cases were solid, but matched against a very experienced defense attorney from Legal Aid, I lost them both. It was a hard blow to my ego, but what was even worse, I couldn’t figure out where I had gone wrong.

“Okay. Tell me what you did,” Warren said in his usual tones, still the quietest voice I’ve ever strained to hear. I walked him through my presentation of both cases. He identified the problem instantly: I was appealing to logic, not morality, and in effect letting the jury off the hook. Since it is painful to most jurors to vote “guilty” and send a human being to jail, you couldn’t simply reason with them to do it; you had to make them feel the necessity. “They have to believe that they have a moral responsibility to convict,” Warren said. Even the most perfectly logical argument, absent passion, would make the choice seem like one of personal discretion rather than solemn duty.

Communicating your own moral certainty didn’t necessarily mean chewing the scenery. But as when I had described the Kitty Genovese murder in forensics competition, the difference between winning and losing came down to the appeal by emotion rather than fact alone. It was something Abuelita could have told me without ever having gone to law school. And it was something I apparently knew in high school,
if only intuitively, before the awareness was pushed aside by years of learning to reason dispassionately at Princeton and Yale.

Granting myself permission to use my innate skills of the heart, accepting that emotion was perfectly valid in the art of persuasion, amounted to nothing less than a breakthrough. Warren would teach me much else in the way of trial skills, as had John Fried, Katie Law, and others at the DA’s Office. But that was the single most powerful lesson I would learn. It changed my entire approach to jurors, from the voir dire to the structure of my summations, and the results spoke for themselves: I never lost a case again. I had hung juries a couple of times, and once or twice a conviction on fewer than all counts of the indictment, but never an acquittal.

Leveraging emotional intelligence in the courtroom, as in life, depends on being attentive; the key is always to watch and listen. You don’t need to take notes with the court reporter getting down every word. Lower your eyes to your pad, and you’re bound to miss that hint of a doubt that flits across the witness’s face. Scribble instead of listening, and you won’t notice the split second of hesitation in which a witness hedges a choice of words, avoiding the ones that would flow naturally in favor of the ones whose truth he or she is more certain of.