INDEFENSIBLE

Vol. 18 No. 3 (March, 2008) pp.204-207

INDEFENSIBLE: ONE LAWYER’S JOURNEY INTO THE INFERNO OF AMERICAN JUSTICE by David Feige. New York: Little, Brown, and Company, 2006. 288pages. Cloth. $24.95. ISBN: 9780316156233.

Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] radford.edu.

INDEFENSIBLE is ostensibly a book about a day in the life of New York City Assistant Public Defender, David Feige. To the good fortune of those of us who study the American justice system, it is much more than that. Feige uses a particular day as a vehicle for organizing what he wants to tell the reader concerning what he has learned about the people he has defended and the American criminal justice system during his years of service as a public defender. Those experiences provide the reader a fascinating account that both informs and entertains.

Perhaps the major accomplishment of INDEFENSIBLE is its humanization of the clients with which Feige works. A popular conception of criminal defense attorneys is that their competitive drive or their desire to make a good living (defending middle and upper class defendants) explains their willingness to advocate for those perceived by many as the dregs of our society. It certainly could not be the people they represent who exercise any pull on them because who could be drawn to the reprehensible people who have committed such horrible crimes?

Feige not only does not find the people he represents to be horrible; he is drawn to many of them with a genuine affection. Consider Gillian Sands, a young black woman who killed her abusive husband in self-defense. She still loved him so much that she felt guilty about what she had done. Feige had to work very hard to convince her not to plead guilty.

There was Cassandra, a thoroughly lovable, but mentally ill homeless person who also had alcohol and drug problems. She once was arrested for robbery for holding up a taxi driver by sticking her index finger in his ribs. She eventually reached a point of such desperation that Feige felt that he was acting in her best interests by arguing for her incarceration for a short period of time so she could get off the streets and into a warm place where he could be certain that she would take her medications.

Perhaps the most remarkable of the defendants was Branford, who at the age of fourteen had taken up with a bad crowd and was selling drugs and robbing people. One day, he was near the scene of a shooting, after which the shooter dropped five bullets from his gun into Branford’s hands. Before he could dispose of the bullets, Branford found himself in a line of people being searched by the police. As the officers worked their way closer to Branford, he managed to swallow all five 22-caliber bullets. Afterward, he had the good sense to visit an emergency room (where he explained that he had downed the bullets as part of a dare). Inevitably, [*205] Branford ended up in prison. The experience so altered Branford’s thinking that he not only came out of prison determined not to return, but he found a job working in the public defender’s office.

Feige has a remarkable ability to help the reader understand what his clients sometimes feel (another aspect of his humanization of his clients). Malcolm Feeley has suggested that, for defendants who believe they are innocent, the ordeal that they must endure to get their case heard in misdemeanor courts is so arduous that “the process is the punishment.” (Feeley). In chapter nine, Feige describes the journey of a hypothetical client who, late for work, jumps over a subway turnstile that jammed when he put his token in the turnstile. An officer who saw the client jump over the turnstile but did not see the client put the token in it arrests him for “turnstile jumping.” The client insists on being heard, even after being offered a non-criminal disposition that would require only one day of community service, because he committed no crime. Feige describes the process the client endures in such exquisite detail that the client’s frustration becomes palpable to the reader.

Ethical issues are another theme of the book. Feige describes a disturbing number of incidents where people in the criminal justice system acted in ways that raise serious ethical questions. In several cases, prosecutors went forward with cases based on nothing more than highly questionable statements from a single witness. In the murder case of Clarence Watkins, for example, the police focused on him as the shooter in the apartment lobby murder of a suspected drug dealer (who was himself a suspect in a murder). The only real evidence against Clarence was an identification given by a man who was drunk at the time of the murder and whose own wife described him as “very imaginative.” There was no forensic evidence linking Clarence to the murder, no murder weapon, and no indication that Clarence was involved in gang or drug-related criminal activity.

What seemed to do Clarence in was that he had a criminal record, lived in the apartment building where the murder occurred, and had an alibi that was based on the testimony of family members. Of course, these facts were more than sufficient to warrant investigation of Clarence, but the case was prosecuted on highly questionable evidence. What is disturbing about cases like this one is that they often resulted in convictions. While the prosecution might say it simply presents the evidence to a jury to determine if it is sufficient, it is apparent that many juries give considerable (and perhaps undue) weight to the fact that the prosecution thought it had enough evidence to convict.

Judges often engaged in questionable actions as well. Many, if not most of them seemed predisposed to high bail. One judge told Feige once that “the first thing they teach you in judge school is that no one ever got bounced off the bench for setting bail too high” (p.77). Another judge routinely excused prospective Jewish jurors during trials that would run through Yom Kippur because once a Jewish juror in one of his trials had refused to serve on Yom Kippur. Another judge discharged a juror for farting during the trial. [*206] According to Feige, judges were often willing to accept nearly any absurd argument that a person interrogated by the police without being given MIRANDA warnings first was not in custody at the time of the interrogation. In Feige’s view, at least, many judges were influenced by the fact that some of the lawyers appearing before them were involved in judicial politics.

Perhaps the most egregious act by a judge reported in the book involved a judge who was anxious to move quickly through his arraignment docket. When Feige tried to present additional points relevant to the bail amount after the judge had announced the amount, the judge warned Feige that any further comments from him would result in increases in the amount of bail. Thinking at first that the judge was being facetious because he had set bail without providing Feige an opportunity to speak on behalf of his client, Feige pressed on. As a result, the judge increased bail one hundred dollars per word from $500 to $700 (Feige said “your honor”) to $1100 (in response to “you can’t do that”), eventually reaching $2500 before Feige mustered the self control to be quiet.

Although these situations raise questions about the ethics of the courtroom work group, Feige also describes incidents demonstrating that these same actors often display remarkable compassion and humanity. For example, in COURTROOM 302, Stephen Bogira suggests that the correctional officers who bring the accused to the courthouse treat their charges like so many pieces of meat, but the correctional officers in INDEFENSIBLE often demonstrated surprising patience. The detective who was about to take Cassandra (described earlier) into custody went out of his way to give Feige an opportunity to remove any contraband from Cassandra before he searched her.

The police displayed remarkable restraint in dealing with Najid, a “green-space activist” who organized peaceful civil disobedience demonstrations when the city was about to destroy gardens that Najid’s organization had built on unused, vacant lots. To resist the city’s efforts, Najid would chain himself to a cinder block cylinder built just for the occasion. While the police used verbal threats and a stream of obscene language in an effort to persuade Najid to un-chain himself, ultimately the police spent hours disassembling Najid’s temporary structure in order to avoid hurting him. Feige saw this as evidence of “our collective tolerance for dissent,” even by the police (p.173). And while we have seen that some of the judges and prosecutors described by Feige sometimes acted callously and arbitrarily, some of them also showed great respect for and deference to all other members of the courtroom workgroup, including the defendants.

As noted earlier, INDEFENSIBLE does a fine job of humanizing the clients that public defenders represent, but it is equally effective in putting a human face on the public defenders. The reader sees how public defenders frequently learn “on the job” at the expense of their clients. For example, early in his career Feige was representing an accused rapist that Feige was convinced was innocent. He worked hard to keep as many women off the jury as possible and succeeded in getting an all-male jury, a jury that convicted Feige’s client. Feige learned that male jurors in rape cases often see [*207] this as an opportunity to show their sensitivity and need at least one woman on the jury to assure them it is alright to acquit if the charge appears questionable.

Feige believes that it is the conviction of innocent clients that takes the greatest emotional toll on public defenders. Feige indicated that after the alleged rapist in the previous paragraph was convicted, Feige thought of him every day while he was incarcerated. Nevertheless, the public defenders who are able to persevere learn to put most of these cases out of their minds. However, some cases cannot be easily removed from consciousness. Feige calls these “cataclysmic convictions” – the unjust convictions of clients about whom he cared deeply. Feige concludes that “most public defenders can’t survive more than three of these before they start to fry” (p.252). Feige developed three personal rules to counteract the effects of these cataclysmic convictions: “trust yourself, pace yourself, forgive yourself” (p.253).

INDEFENSIBLE is a readable and insightful account of criminal courts that even underclass students will find accessible. It would be a very useful supplemental reading for judicial process and criminal process courses.

REFERENCES:

Bogira, Steven. 2005. COURTROOM 302: A YEAR BEHIND THE SCENES IN AN AMERICAN CRIMINAL COURTHOUSE. New York: A. Knopf.

Feeley, Malcolm. 1979. THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT. New York: Russell Sage Foundation.

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