Monday Musings: David Feige

When David Feige’s book Indefensible: One Lawyer’s Journey Into the Inferno of American Justice was published in June, 2006, Publisher’s Weekly wrote, “In this dramatic first book, Feige skillfully shares his wisdom and his humanity and sheds light on a justice system that too often works irrationally.” Karl Keys of Capital Defense Weekly said, “Indefensible is compelling because it marries the sad interchange between reality and idealism that is life in the realm of public defense.”

In addition to his book, David has written articles including “Innocence by the Numbers” in the Boston Globe and a recent article about an Austrian designer of solar homes in Lexus Magazine. David also has a blog titled, appropriately enough, Indefensible.

In this first entry of PD Stuff’s weekly interview feature, David kindly takes the time to tell us some news about what he is doing now and to offer some further insights into the world of indigent defense.

INTRODUCTION

Though I’m not doing much direct representation right now, I was a public defender in New York City for more than a dozen years. I started my career in 1991 at the Criminal Defense Division of the Legal Aid Society. I was in the Brooklyn office during the high-crime years of the early 90’s. Somewhere around 1995 I migrated north to Harlem where I was a staff lawyer at the Neighborhood Defender Service of Harlem. When The Bronx Defenders was awarded the contract to become the alternate provider in the Bronx, I signed on–one of the original eight people who opened the doors on September 1^st 1997. I’m extremely proud of my association with the office and I’m awed by the phenomenal place it has become. I think being the Trial Chief of The Bronx Defenders may well be the best job in all of criminal defense work—it was certainly thrilling for me.

Over the years I’ve tried all kinds of cases (the last being a bench trial on resisting arrest charges and the one before that a two-month false confession murder 1). But even as the Trial Chief of the office, I believed that going to trial is always a failure—that win or lose the fact that you have to gamble with someone’s life means that all your other legal skills and persuasive skills have been unable to secure a just and certain outcome, and so you’re left with no choice but to pick twelve and roll the dice. Do we go? Sure we do. But I don’t think we should see trial work as our raison d’etre.

I left The Bronx Defenders in 2004. In 2006 INDEFENSIBLE, my book about a day in my life there was published by Little, Brown & Co. I’m still writing (and doing a very limited number of cases) but the most recent news is that last month I took a job as a Professor of Law and Director of Advocacy Programs at Seton Hall Law School in Newark.

If the budget for The Bronx Defenders were tripled, where would you spend the money?

Because I fundamentally believe that holistic representation is the best model for our work, I’d certainly hire more lawyers to lower caseloads a bit, but would spend the bulk of my newfound wealth on social workers, investigators, civil lawyers and other seemingly ancillary but actually critical programs.

Our clients deserve more from us than just patching them up and sending them home (or worse to jail or prison). And sometimes even winning a trial (though clearly a great legal outcome) won’t salve or solve the real problems that brought a client into the system in the first place. Only by being able to deal with all of a client’s legal problems: housing, benefits, family, immigration, etc. can we start to make dent in the things that are really driving the criminal justice part of the system.

Any thoughts about police and testilying?

They do it all the time, and strangely they believe it to be the right thing to do. It’s tough being a cop, and very tough to feel like you’re constrained by rules that other people don’t have to follow. I think it’s that frustration that leads police officers to lie in order to achieve what they think is a more profound kind of justice. Ends and means.

What is the state of indigent defense in New York City and, if different, in New York State?

Indigent defense is under-funded everywhere, but things are much better in the city than elsewhere in the state. There are many places around the state (the very rural areas) in which court takes place in a barn, presided over by a justice who may not even be a lawyer. In fact there is a terrific series of articles written by the NYT about the injustice of these justice courts.

Obviously things are quite different in the city which now has a number of vibrant defense organizations featuring different models of representation.

I should say that I think that the creation of the alternate providers has done great things for the state of indigent defense in New York City. (For those who aren’t familiar with the system, each of the four large counties in New York City has a primary provider (The Legal Aid Society) and an alternative provider. In the Bronx, The Bronx Defenders, is the alternative provider, doing about 15,000 criminal cases per year).

There’s been a lot of criticism over the years from the Legal Aid Society and others about the alternate defenders. But I’ve worked at both places, and there’s no question in my mind that not only does The Bronx Defender offer superior representation, but that the creation of the office and it’s presence in The Bronx court system and in the Bronx community has been a great boon to the clients, the system and the borough.

In Indefensible you take the gloves off in some of your descriptions. Have you faced any kind of backlash?

Yes and no. The reality is that judges don’t like bad publicity and they do many of the things they do because there is no real public scrutiny of what happens in the run of the mill cases. I’ve always believed that being willing to go out and publicly hold systemic players to account gives you more not less power.

You say in Indefensible that you believe public defenders are best when they have a short career span (as public defenders). Are there exceptions to that rule? Also, do you think the quality of the representation is hindered by the loss of more-experienced public defenders, or do you think that is offset by the decrease in burnout because of quicker turnover rates?

I don’t think I really said that, and I certainly don’t mean it as you’ve put it. I do think that turnover is essential in a PD office. What you want are devoted powerful advocates who will work their butts off and swing for the fences. I think that characterizes the younger more motivated lawyers better than some of us older folks. While there is obviously value in experience, I haven’t seen that many people who have done with work for 20+ years who still have the same fire.

I think the best offices are bottom heavy, with enough experience at the top to insure that no matter what happens there are people with experience there to help.

Speaking of burnout, what advice would you give young public defenders whose ideals and passion are hitting or are about to hit the wall of the daily realities of the job?

To quote the book: “Trust yourself, pace yourself, forgive yourself”

Given the volume of cases, a public defender has to make an almost unfathomable number of snap decisions during the course of the day—take the plea or get a trial date, deal with the DA or go straight to the judge, send a client to the grand jury or just wait for trial. Every one of those decisions has potentially catastrophic consequences for a client and being an effective decision maker requires a preternatural confidence. That’s the first part—trust yourself—trust your instincts. Generally they’re good.

Second, remember that no matter how hard you work, and no matter how efficient you are, no amount of work will ever be enough. There is an inexhaustible supply of clients and almost every single one of them will need more than you have to give. There is never going to be enough money, enough time or enough compassion to do much more than triage. Even when you do focus on someone, their needs are often so beyond your capacities that no good will come of the effort. Accept this as a condition of your life and work as hard as you can for as long as you can every single day, and then when it’s finally time to go home, accept that you’ve done all you can do—pace yourself.

The problem is that with all that volume, with all those decisions, you will screw up. It’s inevitable. Every public defender is going to make mistakes, and those mistakes are going to take a terrible, inexcusable, and unforgivable toll on the lives of the clients you love. It’s just going to happen. You will err, and someone will go to jail because of it. Somehow, to survive in the work, you need to find a way to forgive the unforgivable, to accept and acknowledge that you’ve screwed up, and recognize the price of that screw up without becoming so paralyzed that you can no longer do the work. As bad as you may think you are, clients need you—they are desperate for decent lawyers. Don’t be your own worst enemy. Forgive yourself—or you’ll burn out in two years.

THE PD STUFF FIVE QUESTIONS

If you weren’t an attorney, what other job would you like to try and why?

Either a food and travel writer or a foreign correspondent. That said, I loved writing the book, I’ve had a blast with my recent writing projects, I’m really enjoying Seton Hall Law School, and without sounding too Pollyannaish I feel very lucky to have had the opportunities I’ve had and to have been able to do the things I’ve gotten to do.

Best moment on the job?

Getting a no-true bill in a murder case.

Worst moment on the job?

1. Listening to the bereft howling of a young girl as a judge sentenced both of her parents (one of whom was my client) to 25-life.

2. Watching an innocent client get convicted after I screwed up the trial.

If Heaven exists, what do you think God will say to you when you arrive?

Tough for an agnostic to answer this one, but I’d like to think that when I’m gone people will remember me as someone who always gave more than he took and usually took abundantly.

If you could only pick one, who is your hero/heroine?

Bill Clinton. I’ve never seen a man so engaged with the world, so happy to be alive, so astonishingly productive and so utterly fearless. Clinton taught us to value achievement, fight like republicans, but believe like progressives. He was terrible on criminal justice, but great on life.

Thank you, David, for taking the time to share your thoughts with PD Stuff’s readers.

Next week’s guest on Monday Musings will be the author of Injustice Anywhere…, a public defender who began blogging while in Texas and is now practicing in Washington State. If you have some questions you would like me to consider for her interview, please email them to me. You can also email me to schedule your own interview.

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