Monday , June 24 2024
Despite problems with flow and an occasional bent toward invective, a Bronx public defender gives insight into the world of indigent defense.

Book Review: Indefensible by David Feige

Sadly, many Americans get their concept of the criminal process through television, where justice is capably dispensed in 60-minute installments. In reality, the criminal justice system is like the adage about hot dogs – you really don't want to see how they're made. And those elbow and knee-deep in the muck and mire of the process are the public defenders. David Feige's Indefensible seeks to take readers inside that process from the eyes of a longtime public defender in the South Bronx. And rather than hot dogs, this system tries, often not well, to produce "some vague facsimile of truth." Feige's truth isn't pretty and his account is often scathing. In fact, at times it reads as if he has more than a few axes to grind.

Using a so-called typical day for a public defender handling murder cases, Feige covers the gamut of the system. We meet the clients, ranging from those charged with murder to a woman who agrees with Feige that she needs to be jailed to get off the street and back on her psychiatric medication, to the man accused of walking dogs without proof of their vaccination. We meet other defense lawyers, prosecutors, and judges. We see the vagaries of the system and those who comprise it and the system's occasional successes and its more numerous delays and failures.

Although the day-in-the-life approach might be a workable vehicle for the author, it hurts the flow. In order to cover all the issues and ground he wants, Feige frequently reflects on older events and cases, blending them into his thoughts during this day's docket. While these matters are necessary for understanding the whole, they tend to tug the reader here and there. Some areas make those familiar with the law raise their eyebrows. For example, when he has one murder client testify before a grand jury, Feige leaves the impression that either he questioned his client in the proceeding (something the law prohibits) or that the prosecuting attorney followed the defense script for the case.

Still, there is quite a bit to commend Indefensible. The book may be at its best not necessarily in describing the inner workings of New York's struggling criminal court system, but in portraying public defenders. At the core is concern for the client. That concern, however, has an equally motivating counterpart – fear of the consequences of failure.

Those represented by any public defense system tend to be at or near the bottom of the social and economic ladders. This status tends to carry over into the criminal justice system. Feige finds his "indigent ghetto clients" just as personable as more well-off (and frequently Caucasian) criminals, such as Bonnie and Clyde or John Gotti, who tend to be mythologized.

But put a black face on Gotti and no matter how dapper a don he is, the press, the prosecutors and the public only read menace… Fundamentalist Christians speak passionately about seeing the possibility of redemption in everyone, and no one bats an eye. But make this same point in the secular context of the criminal justice system, and rather than praiseworthy piety it is heard as liberal gibberish.

Yet Fleige worries less about redemption than simply guiding his clients through the system. Even though he readily admits many are guilty, that isn’t what bothers him. "Nothing good can happen when you represent an innocent client," Feige says. If he wins the case, that is what was supposed to happen. But if the client is convicted:

…the case haunts you, so that in the middle of the night and until sunrise you wonder what you did wrong, what you forgot, what you could have said or done — how such a thing could have happened. It is a searing, guilty pain that can last for years, if not forever. It's the innocent ones that drive you out of the work.

Feige also sees something else in the innocent. Their belief that the system will exonerate them produces a "touched smile," giving them "a look that is similar though not identical, to the calm of the true sociopath."

And just as the clients are complicated, so are the other players in the system. Feige describes fellow defense lawyers, various prosecutors, police officers, jail officials, and judges. Some he likes, some he doesn't. Feige doesn't hold back, particularly with the latter, and this is where Indefensible can come off as invective. For example, he describes a domestic violence prosecutor as "small, mean and twitchy" and says victims "find their cases to be less about them and their protection than about [the prosecutor] and her ego." He is more contemptuous of one of the judges in that court, calling her not only "astonishingly biased" and "relentlessly nasty" but having an "icy pucker and utter detachment" and "complete heartlessness" in whom he sees "only cruelty."

Indefensible also shows some of the pressures of being a public defender. Their caseloads are such that they hurry from case to case and courtroom to courtroom, frequently not having the time clients really need. While that seems endemic to the practice of law today, criminal defense lawyers are gambling with someone else's life. This leads Feige and many others to the verge of collapse, believing there must be a better way. He reflects upon times he would go to bed and pull the covers over his head, vowing, "never to go back to those hellish courtrooms." Yet, "after a day or two, or sometimes just a night of heavy drinking, the faces and voices of the clients I love start filtering back."

Sadly for our system, that is far too often the fate of the public defenders. It is a job that drives talented lawyers from representing the truly powerless. The burnout factor is stealthy yet enormous.

It rarely arrives with the bang of revelation; rather, it's the creeping suspicion that maybe everyone around you is right — your clients really are scum, the system really is completely broken, and you can't really touch anyone's life anyway It is the sneaking sense of futility that undermines your resilience…Burnout sets in when outrage ends.

Indefensible reflects that Feige seems to have plenty of outrage. Perhaps it will help the public better understand the need of the indigent and to see the role of public defenders in the process of seeking that facsimile of truth.

About Tim Gebhart

After 30 years of practicing law to provide shelter for his family, books and dogs. Tim Gebhart is now perfecting the art of doing little more than reading, writing and sleeping.

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