Chapter 2 - The Work

Defenders discuss the mechanics of the public defense profession in New York, giving their take on matters related to the direct functions of the job.

What is your caseload like? On average, how many cases do you have?

How many cases Defenders carry ranged. Defenders who practiced in the 1980s, 1990s and 2000s tended to carry more cases than defenders that practiced in 2010 and thereafter. One Defender remembers having a heavy caseload: “By the middle of my first year, until the day I left, I had over a hundred cases at all times.” Another Defender notes: “I've always been one of the ones [with a higher caseload]. I don't say always the top, but always one of the top five in terms of caseloads. When I started, our caseloads were about 130 cases on average. This is in 2003. So when people complain now about caseloads, I’m like, please.” When s/he practiced in Manhattan, this other Defender carried “at least 120 cases. It was crazy to have that many cases, but I wanted to be a trial lawyer; and somebody once told me that if you want to try cases, you have to have a lot of cases…. I didn't cherry pick the arraignment files either.¹ I mean, I just did the work. I just worked hard.” Another Defender’s caseload “on average would be anywhere from 80-120.” Recalls another Defender: “Once I started doing felonies, my caseload was always above 100 for a long time, for years. Man, my caseload was horrible. It was so unbearable; it was impossible to keep up without being in the office on the weekends. Impossible.”

Similar patterns existed for felony indictments. One Defender remembers: “One year, I had something like 30 or 35 felony indictments, which was tremendous; and in one of the years I did five or six jury trials. It was a lot to do in the space of one calendar year.” Another Defender recalls: “Back in the day, we could easily arraign 15-20 felonies in one shift, and we could be carrying 35 indicted felonies, plus unindicted felonies. Back in the day, a felony case could drag on for over a year without a trial; whereas more recently, judges are pressuring us to try a felony case in four months….” In the Bronx, one Defender carried caseloads with “a lot of felonies, probably a higher indictment caseload than I did [anywhere else]. I had 50, 60 indictments at a time…. As a percentage of cases, it was definitely like a 70-30 split, with 70 felonies and 30 misdemeanors. [In other places], it was more of an even split, and indicted felonies were definitely lower than that. But total caseload…ranged anywhere from 80 cases to a high of 150, 160.” Recalls another Defender: “All I remember is when I left, I had like 62 or 68 indicted felonies. Then I had unindicted felonies and misdemeanors as well.”

By contrast, more contemporary caseloads in 2010 through the early 2020s were less than 100 cases. Case cap legislation enacted in 2009 helped to reduce caseloads, phasing in limits over the next five years.² One Defender observes: “Right now, I have about 70 cases. I would say that I average around 70 cases. I want to say that feels like what I’m used to, but I don’t know for sure because I don’t really check.” Another Defender gives similar numbers: “Right now, my caseload is about 70. I think the average is probably about 50. When I started, my caseload was easily 100 to 110; and we would easily have 10 to 11 arraignment shifts per quarter. So this is so manageable.” One Defender began doing trial work “just after the whole case cap legislation. So that legislation was supposed to be designed to reduce the caseload or whatever the case may be. My caseload on average I would say was around 65, 66 cases. Sometimes I had about a hundred cases, but it was usually, for me, between 65 and 75 cases. My caseload was never less than 60 cases a year….”

Some Defenders do not keep track of their caseloads. One such Defender states: “I really don't know. I mean, I've never been one to keep track of the numbers, because it could probably be daunting. I've been told by supervisors in the past that sometimes my caseload is high and that's because I work my cases. I don't necessarily take a lot of pleas, and I do a lot of work on them before they're resolved. But I think I have a lot.” Another Defender that doesn’t keep track either recalls: “I actually do myself a favor and pretty much refuse to look at what my caseload was. If I look, I would either be overwhelmed or disgusted, you know? I don't want to be overwhelmed. I don't want to feel that way. And the truth is that the work keeps coming; you keep going to arraignments, and you keep picking up cases.”

Additional responses:

Defender So toward the beginning, I was a crazy gung-ho attorney. Although we had case caps, which essentially meant that in the office, every lawyer should have carried at least 75 cases, I had 110 misdemeanors [consistently] for a great period of time. I carried a caseload [of] no less than a hundred for at least three years, my first three years. And it was mostly on me. I was working, working, working; and it all depended on the type of arraignment shift that you worked. So I was a person that liked to work at night; I was a person that liked to work on the weekends. And those were the [shifts] when the heavier cases would come, causing me to have larger caseloads. So per shift, I was picking up 9-10 cases that I was keeping. Some attorneys wouldn't work those shifts, [so] they would not have as many cases…. Some attorneys only worked DAT shifts, where most of those cases were what we called disposable. I didn't want disposable cases; I wanted cases that went to trial. I wanted cases that I could litigate.

So I worked a lot of shifts and picked up a lot of cases that I knew would stick with me, like domestic violence cases, DWI cases, things of that nature. When I started picking up more serious cases after about four years, my caseload dropped a bit to, I would say, about 80 cases…. I think the lowest I ever went was around 60 cases; and that may have been due to me just being tired…. As a fully certified attorney, I had about 85 cases; and probably half of them were indicted felonies.

Defender [When I practiced], we were carrying caseloads of 130 on average…. That's why they initiated that case capital legislation, because they found that there's no way that we could be properly providing representation to folks with the caseloads that we had. This is also when a lot of your clients were in jail. It is a completely different world today than it was when I was starting to come up. Your felony clients were in jail…. [Then] the DA’s office used to have this thing called Operation Spotlight. If you had three arrests within a year, they were asking for bail. It didn't matter that you're a homeless person trespassing in a park; they were asking for bail, and judges were setting bail, $500 bail, $750 bail. It was crazy.

So it's a very different practice now. The caseloads are down; we had more investigators, more social workers, more resources. It's fantastic that we were where we were. I mean, we could still do more obviously; but yeah, it was worse back then.

FN 1: At arraignments, usually a supervisor and non-attorney staff prepare the files and place them in a central location for attorneys to take. Some attorneys will take whatever cases are there; others will cherry-pick and only take cases they think will not go to trial and/or not require much work.

FN 2: John Eligon, State Law to Cap Public Defenders’ Caseloads, but Only in the City, N.Y. Times (Apr. 5, 2009), https://www.nytimes.com/2009/04/06/nyregion/06defenders.html#:~:text=The%20number%20of%20criminal%20cases,100%20cases%20at%20a%20time.

What are arraignments like in your borough? Do you have enough time to talk to your client?

For a client, the arraignment is his or her first appearance on a criminal case. The arraignment is technically supposed to be the formal procedure by which the accused person is officially notified of the charges he or she is facing. Arraignments happen in specialized “court parts.”³ There are two sets of arraignment shifts in New York City Criminal Court: the day shift, from 9 a.m. to 5 p.m.; and the evening shift, from 5 p.m. to 1 a.m. While all other court parts are open Mondays through Fridays from 9 a.m. to 5 p.m. (or whenever business is finished), arraignment parts are open seven days a week from 9 a.m. to 1 a.m. the following day.

A client arrives at the arraignment part in one of two ways: they are either processed through Central Booking and brought to the holding cells outside the arraignment court part, or they are given a Desk Appearance Ticket (DAT) and must appear in court on the date listed on the ticket. Clients that receive DATs are usually charged with minor crimes like traffic law violations and nonviolent misdemeanors. Clients that do not receive DATs are taken to the precinct, fingerprinted, and kept in a holding cell at the precinct. When there are enough arrestees, or at a scheduled time, accused persons will be taken to the courthouse and placed in Central Booking, where they are fingerprinted, photographed, and interviewed by a member of the Criminal Justice Agency (CJA) in the process of preparing official court documents, including Criminal Court charging documents. Afterwards, they are placed in holding cells outside the arraignment courtrooms to wait for a defense attorney to receive their file, interview them, and appear with them before the judge for arraignment. Clients brought to the courthouse are usually charged with more serious crimes for which a DAT cannot be legally issued. However, officers will “process” people they can give a DAT to for a myriad of reasons, including animus and vindictiveness.

When a Defender meets a client for the first time, s/he seeks to accomplish a few things, including establishing rapport with the client and acquiring the facts necessary to make a potential bail argument. One Defender explains: “When I first meet my client, I don't want to seem like I'm not interested in what he's saying or she's saying. So I try to spend enough time to at least connect with the client and find out what happened. I tell them what they are charged with and what facts the police allegedly have. Then I ask them what happened or how did they get arrested. I want to know what they said happened. And sometimes it matches [the alleged facts in the criminal court complaint]; a lot of times it doesn't match. I think that's important, to find out what the client’s facts are….” After interviewing a client, a Defender may call potential witnesses on the phone, conduct various (usually brief) investigations, or, as one Defender does, “use the lunch hour to do research. I've done research during arraignments, looking at the cop database [our office has] and making an argument to the judge that this police officer has been found untrustworthy.” When the Defender is ready to have the client arraigned, the attorney will fill out and submit a “notice of appearance” to the court, and the client will be pulled from the holding cells, eventually brought into court, and arraigned.

Arraignment court is an intense experience. One Defender calls arraignments “a high stress environment. It's triage.” Another Defender gives a similar description: “You don't really have the time to form a relationship at arraignments; it's triage. You get this one through, get them out hopefully, and onto the next one.” Defenders have multiple clients to arraign in a given shift; while some cases are simple, other cases are more complicated and require more time and resources. Additionally, there is constant pressure from judges and court staff on Defenders to arraign their cases as soon as possible. One Defender notes how “some judges were psychotic about trying to get all the cases called.” Another Defender concurs: “The judge wants you to step on it. The court officers are like, ‘Let's get it done.’ … I think that the speed was rapid, and you sort of had to get in there and get it done and get the case called.” Even Defenders’ supervisors could add to the pressure. One Defender shares: “Sometimes supervisors will come to you, especially if you're the early person,⁴ saying that you need to put up some notices; they’ll ask, ‘Do you have any notices ready?’”⁵

Many Defenders find this frustrating because of what is at stake. One Defender clarifies: “There is a lot of pressure from court officers, from judges, to just hurry up and wrap things up. I can somewhat understand that sentiment if, say, the prosecution is not asking for bail or there are no other complicating factors. But the reality of the situation is that it’s seldom that way. It could be something as simple as an order of protection, but you know the person is going to end up going home [in violation of the order] ….” Where prosecutors seek bail on a case, there is a significant chance that bail will be set; and many if not most clients of public defenders cannot afford to pay. An order of protection often causes major disruptions in a client’s social life and can potentially render the client homeless for a time.

Of particular frustration is how judges and court staff would try to rush interviews with clients facing serious felony charges. Serious felony cases require particular attention to detail early on. One Defender remembers how “a court officer yelled at me one time for not getting a notice in quickly enough; and one of my coworkers flipped out on him: ‘S/He just picked up an attempted murder case! It’s going to take a minute to go through it.’” Another Defender recalls: “One time, an ADA⁶ was trying to get me to go and get [my colleague] out of a booth [so she could arraign his/her client.] The prosecution was asking for half a million dollars in bail. So I said, ‘If you will consent to ROR,⁷ I’m sure s/he'll come out real quick. But I don’t think you’re going to do that, so you’re going to have to wait a little bit longer.’ And [my colleague] was back there trying to do a million different things and just feeling the pressure of trying to get stuff done, but not going so fast so that s/he ends up screwing over the client.”

Defenders have mixed feelings as to whether or not they have enough time to talk to their clients at arraignments. Some of the older Defenders recall lacking time because of the sheer volume of cases that needed to be arraigned on a given night. One Defender notes that “any given shift … you could count on there being at least a hundred [cases] waiting. There were way too many cases that we had to try to get through.” Sometimes Defenders caved to the pressure early on in their careers. Explains one Defender: “I remember the beginning of my career, I felt that if the judge sent a court officer in the back, I was doing something wrong. Maybe I was taking too long.” When asked if s/he had enough time to interview his/her clients, another Defender answers: “When I was a misdemeanor-only attorney, definitely not at all.”

As Defenders became more seasoned, they became more comfortable pushing back. One Defender states: “I would say I allow myself enough time to speak with my clients…. I give myself as much time as I need.” Another Defender concurs: “Generally, they give us time to interview our clients; and even if they don't, we take the time at the end of the day.” Says another Defender: “There is pressure to arraign multiple cases in arraignments, but I've never been one to say, I'm going to hurry this extremely important interview up because the court needs me to do this. I'll just be like, yo whatever. They could be mad.” One Defender elaborates: “As I got older in my career, I would turn to that officer and say, ‘Yeah, I'm not done yet. You can tell the judge I'm not done.’ That's something I try to share with new attorneys as well. I tell them: ‘You can push back. Don't let anyone set the tenor for your interviews. If you need more time, let your colleagues know you need more time, and we will provide cover for you. Take as much time as you need.’ But then of course, you have to understand that the more time you spend with this person is less time that you could spend with the next, so you still have to tighten up your interview.”

With experience, Defenders develop an understanding of which cases require more particular attention and which cases they can hurry along. One Defender will rush cases, for example, where the prosecution is consenting to the client’s release and the night shift is coming close to ending: “The judge is not going to work past the end of his/her arraignment shift, especially if it’s a night arraignment shift. I may rush my client, explaining: ‘I just want to get you out of here right now. You’re going to go home. We can talk a little bit more tomorrow—or if it's a weekend, on Monday—but I just want to get you home.’ So I might get just a quick summary of what happened as opposed to sitting there developing a relationship and those things, because I want to get my client out.” Whether or not the client is being released plays a major role in how quickly a Defender might conduct an interview. Another Defender explains: “The court started doing a list of which clients prosecutors are asking for bail on and who is being released, so it kind of speeds up our process. But again, it requires the attorney to follow up with the client. We'll get the basic information and contact information and whatnot. But for me, I always get what happened as quickly as I can; and then I'll swing back around and go into greater detail once the person is out after the case has already been adjourned….” Concurs another Defender: “I’m focused on getting clients out.”

A few more responses:

Defender As the arrest numbers went down, [arraignments] got better; but one of the bad things about being in arraignments is that you could sit around, and there would be this lull in the action for a long period of time where [a few] cases would come in [during the first half of the shift]. Then after the lunch or dinner break, there would be a flood of cases, and the clerks would try to rush us to interview the clients. And I'm like, you can't just hand me a felony robbery case and expect me to kick it out in three minutes, or an attempted murder or something where I've got to sit down and actually have a conversation and talk to witnesses, talk to family, get people there in court so I can make a real bail application. I can’t just submit my notice. And I realize that from their perspective, they have somebody above them saying they need to move things along; but it's not that simple.

Defender It was a shit show. In the Bronx, it was all about mass incarceration. I remember one New Year's Eve, there were 330 cases in the system in one night, which is crazy. At some point, they gave up and issued cut slips. This was why: the police retire at the rate that they made their final year of work. So that's why—and I don't know if it's still true—but that’s why every New Year's, and in the days leading up to the new year, you'd have these massive numbers of arrests and cases coming through arraignments. The police would be racking up insane amounts of overtime so that, even if they're retiring with an extra $50,000 overtime, their pension is geared to the amount of money they made in the previous year. So police would be literally arresting everybody in order to pad their pensions. So these people who are our clients are now being instrumentalized for police officer wealth….

It was intense, always. And then it’s weird: now bail reviews⁸ get done all the time. Back when I practiced, once in a while you'd get a bail review, and it might succeed. On some level, we should have been doing bail reviews on everything; but if you tried to do more than one bail review in a month, you would literally get laughed out of court. You had to be so special to do a bail review, even though bail was being set on everybody all the time without good reason, which was absolutely against the legal standard of likelihood of flight, or likelihood of return. So, it was all bad.

And then it's highly dependent on the judge. I mean, once in a while, you'd have a good judge and your arraignments would be great. But [not usually].

Defender I typically do night court. Night court is a lot easier. You kind of get used to the crew. The crew in day court, for instance, they rush you. They're not getting overtime. They don't really want to be there. They're trying to just close down as soon as they can. Whereas night court, people are more relaxed. You do get more time to talk to your client. You don't have the burden of, I may have other cases going on right now, so I should be in these other courtrooms…. I have more time to talk to my clients at night. The court officers are generally more familiar with you at night, and it's a better environment. But it also depends on what judge you have; depending on who's on the bench, you already know what kind of night you're going to have.

Defender In the beginning, especially with felony cases, [the Queens DA’s Office] had a waiver policy in place. So you have to explain that to your clients what the waiver policy is….

[Here’s how the waiver policy goes: normally, the prosecutor has 144 hours from the date of a person’s arrest on a felony charge to get a grand jury indictment where that person either has had bail set or was remanded at arraignment. The date on which their deadline falls is called the 180.80 date, named after the statute, Criminal Procedure Law section 180.80. However, the Queens DA’s Office had this policy where they required all defendants to waive their 180.80 date, meaning that they would consent to remain in jail longer. If a client refused to waive their 180.80 date, then the DA’s office would refuse to plea bargain. So, if a client that refused the waiver decided later on to take a plea—as the overwhelming majority of clients do—that client must plead to the top count of the indictment and will not be offered any plea to a lesser offense by the prosecution.

So, we have to start off by talking to the client about the waiver policy]: “Even though your 180.80 date should be X, here's the policy that we have to talk to you about, because if you get indicted and you decide later on that you don't want to go to trial, they have this policy where you can only plead guilty to the top count.” So it’s not only acclimating yourselves to your clients and finding out the facts; you have to explain this very, very important policy that they had at the DA’s Office. Sometimes you have to say, “Okay, do you want to sign the waiver? You can always withdraw later. At least it’ll give you the option.” Sometimes clients would say, “Yeah, I’ll sign the waiver”; sometimes they would say, “No.”

Defender I will make time to talk to my client. That aspect of the job has never been the biggest deal for me, the aspect of dealing with the pressure of them yelling at me and things like that. I have fewer cases that I arraign in Manhattan, so it's easier to do it. In Queens, I wasn't able to spend as much time as I wanted, but I would never get cases called without talking to clients. We would never just take a plea on the record if we hadn't talked about it before, unless it was truly needed and they just sprung it on us and refused to let us do a second call.

So honestly, that never was a big issue for me because, what, you're just going to call the case without me? Well, then I'm going to go on record and say, “I haven't had an opportunity to talk to my client. This is ineffective.” What are they going to do? They can't make me go on record. What are they going to do? They need my notice of appearance and I'm not putting it in yet. So get over it…. There's no reason to be scared of these fools. They can't make us do anything. And they try to treat us like they treat our clients, which is like shit, and then act like they have control over us as well. No, you don’t. If I need to keep talking to my client, I’m going to keep talking to my client.

FN 3: “Court parts” are what criminal law practitioners in New York call various courtrooms. The court parts where arraignments occur are called the arraignment parts. Courtrooms where trials happen are called “trial parts.” In between arraignments and possible trial, cases sit in “All Purpose (AP) parts,” where various functions are performed. See footnote 10.

FN 4: Attorneys working arraignments generally must be present in court from 9 a.m. to 5 p.m. if they are working the morning shift; and they must be present in court from 5 p.m. to 1 a.m. if they are working the night shift. However, one attorney in each shift is designated as the “early person.” That attorney begins the morning shift at 8 a.m. and the night shift at 4 p.m. This way, when the shift begins at 9 a.m. or 5 p.m., there will be cases ready to be arraigned from the start.

FN 5: “Notices” means notices of appearance. When an attorney is ready to have a client's case called in arraignment, the attorney fills out and submits a notice of appearance for the client's case.

FN 6: “ADA” stands for assistant district attorney. An assistant district attorney is a prosecutor.

FN 7: “ROR” means “Release on Recognizance.” When a client is released on his or her own recognizance, the client is released with one main condition: the client must return to court on the next scheduled court date.

FN 8: A “bail review” is a proceeding in New York Supreme Court in which a defense attorney seeks to challenge a Criminal Court judge’s bail determination. When a defense attorney seeks a bail review, the case is sent to a judge in Supreme Court; and the defense attorney argues for an alternative bail determination (usually release) while the prosecutor will argue for bail conditions to remain the same (or alternatively for the bail amount the ADA sought at arraignment).

What is a typical workday like? What is a typical day in court like?

Cases that do not end at arraignment are adjourned for future court dates for a myriad of purposes. Unlike the impression popular media gives, court practice for the average public defender consists mainly of handling these “calendar calls”⁹ and adjourning cases for future dates. Virtually all cases are arraigned in New York Criminal Court. Misdemeanor cases and unindicted felonies remain in New York Criminal Court. Indicted felonies are transferred to New York Supreme Court.

Defenders universally agree that there is little distinction between workdays and days in court; the two are often one and the same. Courthouses open at 9 a.m., and proceedings in individual courtrooms usually begin around 9:30. Some Defenders go to the office first and work before heading to court. One Defender explains: “I usually get to the office early before anybody's there, so I can do motions or print discovery.¹⁰ I look at the files that I have for that day.” Other Defenders would go straight to the courthouse and then head to their offices after handling their calendar calls. One Defender states: “A typical workday, I get into work. I find parking and get into the court around 10:00 or so. I go and deal with my cases.”

Defenders consistently describe court practice as a waiting game. One Defender notes: “I feel like you spend [the typical day] either in court all day or in the hallway on your phone.” Many times, Defenders are waiting for clients to get to court; as one Defender indicates, clients are often late to court: “You are lucky to have clients that show up on time for all of their appearances.” Defenders also wait for their case to be called in the particular “court part” they are scheduled to be in. One Defender notes how judges will “usually have a calendar anywhere from 70 to 100 cases in any court part a day….” Thus, Defenders can spend hours in a court part waiting for their client’s case to be called.

Complicating this reality is the fact that Defenders often have several cases scheduled for the same day in several different court parts; and in boroughs like Brooklyn and Manhattan, court parts are located in more than one courthouse. Thus, Defenders are forced to try and time their appearances based on which clients show up when and where as they navigate different court parts in different buildings. One Defender explains: “It's a game of managing your time and figuring out what clients are showing up when and where at what time; and you're running back and forth and trying not to miss your case being called. One client says he's going to get here at this time, but then this other client shows up. So it's like a little ping-pong game, racing back and forth between other courtrooms.”

It isn’t like Defenders are reckless in scheduling cases. One Defender reflects the collective sentiment of Defenders when explaining that s/he “would try my best to maintain some calendar control, trying to keep certain types of cases or certain court parts on certain days.” Additionally, Defenders always seek to have “office days,” or days when they have no cases scheduled. However, when cases get scheduled depends on a variety of factors, many of which are not under the Defenders’ control.¹¹ Another Defender hilariously notes: “It is a struggle, first of all, to just get an office day. That has been the one thing I've been trying my hardest to do. Each year I make it a New Year's resolution: okay, make sure you take control of your schedule. Make sure you set aside at least one office day for yourself each week. Yet somehow, it just doesn't work out; it might work out a couple times a year, but it’s hard.”

How long a public defender spends in court on a given day depends on many factors, including how many cases they have scheduled for that day, how many court parts (and courthouses) they have to go to, who the judges are in particular court parts, what specific business they have with a particular case, and whether the client is released or detained. If public defenders are fortunate, they complete their court obligations by or before the lunch hour, which begins at 1 p.m. and ends around 2:15 p.m. Often, however, public defenders must return to court in the afternoon after having spent the whole morning there.

Defenders are uniformly frustrated by the inefficiency of courtroom practice. One Defender notes: “You spend a lot of time sitting in a courtroom waiting to get called, wasting a lot of time. I shouldn't have to wait this long, waiting three hours to do a five-minute court appearance EVERY DAY. It is very inefficient, and the 30 hours a week I should actually be working on cases I spend waiting for someone to call my name.” Another Defender concurs: “I'm in court all morning because I just sit there waiting for my one or two cases to be called. It's such a waste of time. I don't know if we could figure out a way to make it work where you don't have one or two cases and you sit in court for hours. It's just a waste of time.” Another Defender notes: “Most substantive work happens after hours and on weekends, because you spend your whole day sitting in court.”

Part of the Defenders’ frustrations arise from having to deal with concomitant frustrations of court staff, judges and, most importantly, clients. One Defender elucidates:

So that's a typical day in court: show up and just wait and wait and wait. And then everyone's complaining: the clients are complaining, the court staff is complaining, the judges are complaining. They complain about waiting, they complain about everything. And I don't know how they don't understand this, but it's just like, you know when you have to wait, do you know who else has to wait? ME! I have to wait. I don’t want to be here either! Do you think I'm having fun?! Folks sitting here complaining and huffing and puffing like it's my fault. As if I'm intentionally making them be here longer because I just love court so much. Especially Criminal Court; it’s just so clean and airy. The quality of the air is just so amazing. Smells like fresh bread. I just want to be here all day. (Author laughs) And really, I want you to share this with me, so I told them to take hours to call your case so we can be on the record for 30 seconds because I just want you to experience this with me. Like, girl, I am not trying to be here either!

While this is the routine grind for public defenders, things change when an attorney is on trial. One Defender illustrates how: “If I'm on trial though, the days change because I'm on trial. I don't really focus on anything other than my trial. Anything else that needs to get done I have to [have handled by] somebody else, because my ultimate focus at that time is now making sure that my client, who I'm on trial with, is getting all my attention.” When Defenders are on trial, they have colleagues cover their calendar calls and adjourn their cases for them.

After Defenders complete their court obligations, or during their lunch hours, they work on a host of tasks. One Defender explains: “During lunch, I'm either calling back clients, or I'm prepping for my hearing, or I’m prepping for a grand jury, or I’m talking to my investigator, talking to my social worker. Sometimes I’m spending the day in court, eating lunch in court….” Another Defender notes that after a public defender is finished in court, that attorney would “head back to her desk and try to write some motions or do legal research or whatever is necessary.” Recalls another Defender: “I literally come back from court—court used to run past 5:30. Sometimes I'd be down in a part until 5:30 in the evening—to start working on motions, start making phone calls, start doing all the things you have to do when you get back.”

Because of the immense volume of work Defenders have to do, work hours religiously extend beyond the traditional nine-to-five. One Defender notes that a nine-to-five workday for a public defender is “not realistic.” Another Defender recalls: “I typically would not leave the office before 6 p.m.; and like I said, I was there just about every weekend.” In short, Defenders are overworked.

A few other responses:

Defender It would depend. Some days are light. I'd have maybe one or two cases [on in court]. Some days I'd have like 15 cases on in Criminal Court. I’d be in court all day, and I really didn't [have] any time to really speak to my clients.

So it would depend. A lot of it depends on my calendar and how I schedule my cases; but if you're working for long enough, you're going to hit a patch. There were months where I'm just in court every day, and there's really nothing I could do about my calendar. I had so many cases. I remember when I was in the thick of it, I was just in court every day; and I was just trying to keep [my] head above water. I have a hearing in the middle of the day; and then I am prepping for trial; and then I have 15 calendar calls I have to deal with. Then I go back to the office and I am fucking wiped out at 4:30; and I’m trying to return calls, or I have to finish up a motion…. Or I’m at the office late till 9:00 p.m. trying to prep for a hearing or trying to get out a motion I had to do that day. Days would be crazy.

Then there would be some weeks where it would be reasonable. But I would say for the most part that if you're a public defender for more than two to three years, two-thirds of your days are spent in court.

Defender If I have all misdemeanors one day, I can run up and down between floors. Whoever gets there first, that's the case that I do. So it's a lot of waiting around, for the most part. There are some attorneys that, if their client is not there when they're in court, [their attitude is,] too bad, so sad if the warrant gets issued.¹² I can't do it. I would rather come back in the afternoon and wait again because I just know how detrimental that warrant order is [if] they come through arraignments again. So I try to keep that at the forefront and not say “too bad, so sad.” Even when I will threaten the client that that's what I'm going to do, I just never end up doing it because I just know how detrimental that warrant order is on a rap sheet.

Defender At one time in the Bronx, there were two courthouses. So I would have to run up the street to NY Supreme Court. I would literally run all over Supreme Court in the morning, and then run back to Criminal Court. Then jail clients would be produced, so I’d have to run back to Supreme Court. So I'd spend a whole day just running around. I was almost never in the office. Then I’d be in the office, and some judge would call me because they wanted to put my client in jail and needed a lawyer to do that.

FN 9: Motions are oral or (usually) written arguments/requests for a court to grant a particular relief, such as a hearing or a dismissal of the case. Discovery constitutes the materials and evidence that the parties (usually the prosecutor) are supposed to turn over to the opposing party prior to trial.

FN 10: If a case survives the first court appearance, called “arraignment,” it gets adjourned to an “All Purpose (AP) part” a courtroom where all matters relevant to the case are handled, including the filing of motions, the taking of pleas, the dismissal of cases on various grounds, the service of discovery, the adjournment of cases to future court dates, and other miscellaneous matters before the trial. If the case is not resolved after all other matters have been settled, then the case is usually sent to a “trial part,” a courtroom where evidentiary hearings and trials are conducted. “Calendar calls” refer to the calling of cases in AP parts for the performance of the abovementioned functions.

FN 11: For example, a judge that is more concerned about how many cases are on the calendar on a given day may schedule a case for a date that does not work for the public defender; the public defender cannot control that.

FN 12: If a client is not present in court on his/her scheduled court date when his/her case is called, the court will issue a “bench warrant,” a judicial warrant authorizing a client’s arrest and forcible return to court. If defense attorneys are able to reach clients that haven’t yet shown up to court, they will generally encourage the client to come to court; and if the client is honestly unable to come to court, they will generally ask the judge to either stay the issuance of a warrant or to excuse the client’s appearance. If they haven’t heard from the client—this will often be the case with clients that do not have reliable means of communication—some defense attorneys will wait until the afternoon to call the case. Other defense attorneys will call cases with missing clients when they are in court just so that they don’t have to return to court in the afternoon.

Why are investigations important? Talk about a case you had where an investigation played a vital role in how the case was ultimately resolved.

For cases that go past arraignment, especially cases that appear to be trial-bound, defense attorneys conduct investigations. They read whatever documentation the prosecution provides, searching for information and looking for inconsistencies. They go out to the place where the alleged crime occurred and view the scene, taking notes of their observations. They talk to potential witnesses, both friendly and adverse. Increasingly, in the age of surveillance, attorneys seek video footage that captures the incident in question. Sometimes, attorneys will formulate hypotheses about cases and conduct experiments to test them. The ultimate aim of investigating a case is for the attorney to acquire knowledge about what really happened so that he or she can advise the client accordingly and proceed efficaciously.

Defenders agree that investigating cases is extremely important. One Defender explains: “So much of the criminal legal process is about who can prove what; and you can't prove a damn thing unless you have someone go out and investigate. And to present evidence to the court, it has to be something that's not just coming from you…. Doing investigations, and especially doing them early, is important to be able to combat whatever lies the DAs think they're going to say, or whatever lies officers think they're going to say, or whatever lies witnesses think they're going to say.” Another Defender concurs: “I love doing investigations because I feel that if you don't do investigations, like going to scenes, talking to people—and not just investigations about what happened that particular day in time, because if you're dealing with people, there are always histories and backgrounds of people that you need to know that may contribute to your representation [of the client], to your presentation of them in front of a jury—then you won't know what could be good.” Another Defender takes investigations very seriously: “I like to go out on investigations so that I can see the area myself. I can gauge distancing. I can gauge lighting. So I still go out on investigations…. It's a regular part of my work, because I think it's important to see things for yourself so you can get the full understanding and the picture.”

One Defender notes that, like much of humanity, “our clients aren't great storytellers. They have a tendency to focus on the parts of the story that, while important, aren't important to the issues that an attorney is focused on. So having an investigation kind of gets you to those facts.” Another Defender adds: “Whether we recognize it or not, we conjure up an image of where something took place, the people who are involved, the witnesses, the complainant. We draw up a picture in our minds. And I think very often, you need to investigate to disrupt the pictures that you reflexively create that are not accurate. It also gives you an opportunity to figure out all of the different pathways to evidence and information that will strengthen your defense and strengthen your representation of somebody…. If you end up going to trial, it helps you recreate that picture for the people who are going to be making the decision.” Another Defender elaborates:

Cases are larger than the piece of paper that is given to you at arraignments. There's so much more. The complaint tells you what supposedly happened at that time at that place; but you have to know what happened before then. You have to know what happened after. You have to know who else was around. [Whoever was around] is necessary for the narrative; they're necessary to verify something your client says, or to discredit something that a complainant says, or to find out that what the complainant said is true, or to see how much evidence there is against your client.

The job is about seeking information. That's the first step; you have to seek the information. Then the lawyering comes in: what do I do with the information? But you have to have the information before you can do the lawyering. So, we do as much as we can at arraignments with the little bit of information that we have; but that can't be the end of it….

The following anecdotes illustrate how investigations are important to achieving positive outcomes in cases:

Defender There was one investigation where the cops basically said that my client was riding his bike on the sidewalk. That was the reason they arrested him. Never mind that the arrest occurred thirty minutes after the police allegedly first saw him riding his bike; you would think they would’ve stopped him then and there. So that obviously didn’t make any sense as an explanation for what happened, so the question I had was, well what actually happened? My client the whole time said to me, “The bike wouldn’t even start, so I couldn’t have ridden it because it wouldn’t start. So, I was walking it.” Sure enough, I got video showing him walking the bike back to his uncle’s building, because his uncle happened to be the superintendent of the building, so there was surveillance footage.

It showed the officers taking the bike and confiscating it after my client had left. So at no point, obviously, had they seen him riding it. They claimed they did, but it defied logic why they didn’t stop him when he was allegedly riding it. Obviously, they didn’t bring it out with him on it, and he wasn’t even there when they took it. So when my client’s uncle asked him where the bike was, he said “What do you mean? I brought the bike back.” So through the investigation we found the video showing that the police came and took the bike. And they would’ve stolen it but for the fact that they were caught on camera taking it.

The prosecution gave my client an ACD.¹³ I wanted to push for something better, but I think the issue was that he was traveling or something like that and he really couldn’t wait for the case to end….

Defender I had one case with a 16-year-old client who was accused of fleeing the police, reckless driving, and illegally driving this motorbike among a whole litany of charges. And he told me from jump, “No, I was riding this bike down the street and a cop hit me from behind and just hit me off the bike.” I sent an investigator to get surveillance video, and we were able to find surveillance video. It showed just that. My client wasn't necessarily speeding. He wasn't running lights from what I could see, but he was just riding down the street. There was another guy on a bike too, his friend. They were just riding down the street, and a cop just sped up and hit them off the bike. And that was never in the police paperwork. That was never disclosed.

And it was funny because all of the police reports said something different. One said that my client stopped short on the bike and the front of the cop's car made contact with the back of the bike. That was the closest they got to saying the cop hit this kid, but the videos completely showed my client was riding at a regular rate of speed and the cop just sped up behind him and hit him. So when I turned that over to the prosecutor, all of a sudden we got an ACD off-calendar.

I don't think that the family pursued charges against the cop. They should have....

Defender I'm thinking about one case that I did. It was a fun trial. My client was accused of doing a drug sale in the courtyard of a housing project. My client had just been released from the hospital maybe about two days before the incident happened, and he had had his foot amputated.

I had gone out to the scene, so I knew from where the officer claimed he was situated, he would've had to see through scaffolding to see the courtyard where my client was. I suppose if he had laser vision, it would've been possible. (Author laughs) But then he said that my client got up and walked into a building right near the courtyard. That building that was “right near” the courtyard is at least 20-30 yards away, which for most people is not a big deal. But for him to say that my client, who just had his foot amputated and was just released from the hospital, could walk that in about 30 seconds— I mean, you know that's not happening. We had my client stand up in the middle of the trial and try to walk a couple of steps; and he couldn't do it without help. And that was six months after his foot was amputated as opposed to a couple of days after.

So, obviously we would’ve known about the amputation. But we wouldn't have necessarily known that the officer couldn't see from where he was, because he made it sound so simple. He claimed, “I was parked on the street and I looked across and I saw into the courtyard.” If you didn't know that there was this big scaffolding right in the middle of where he's saying he was, you wouldn't be able to properly cross examine him and point out the problems with what he was saying. We wouldn't have had the pictures that show that from where he was talking about, you couldn't really see. So if we hadn't investigated, we would've really harmed our client.

Defender Yes. I represented this young man charged with assault in the third degree. This was in domestic court. I don't think it was a felony, but the complainant’s injuries were really bad. They had pictures of her face in the file, and her face was all bloody. I remember he would call me and say, “I don't want you to think that I did this.” And I'd reply, “Listen, it doesn't matter what I think. I'm going to fight very hard for you to get these charges dismissed.

So long story short, we did an investigation. The investigator went to a nearby corner store to retrace the steps of where the ex-girlfriend had walked home, and he interviewed the owner of the corner store. [The owner told him that the complainant] was drunk, and when she came in there, she smashed her face into the ice machine and fell down face-first. When the investigator told me, I said, “Oh my God!” So we already knew there was something there. So then we really tried to convince the corner store owner to come in and testify. Because he did not want to testify, we then asked if he would be willing to write a statement….

So I would say the investigation was very important. We ended up getting that case dismissed because when I listened to the 911 tape, her niece was on the tape saying, “Oh, auntie went and got drunk again and fell.” (Author reacts) So the ADA dropped all the charges. The client was overjoyed; he had never been arrested before.

Defender I had a case where a client was charged with a fight that led to the other person dying. We were trying to prevent the prosecutor from charging them with homicide, because we thought they had the wrong person, so we looked for video along the route. We talked to people who were out there. We investigated the decedent and their friends and their backgrounds, Facebook and all of that. We got the clothes that were worn that night [by our client.] It was helpful to convince the prosecutor that they did in fact have the wrong person, and it convinced them to drop the charges against the client and charge someone else.

Defender Yes. One summer I had the greatest interns ever. I had a client that was accused of robbery, a Black guy. The alleged victim was a white guy. [My client] was a bright guy. He actually got into my high school, Bronx High School of Science, and then he dropped out for one reason or another and was in the street heavy both into and after his twenties.

He said to me, “I ain't try to rob nobody. This white dude tried to get up on me and I fought him back.” I said, “Okay.” My investigator sent these two interns out there. It was two young folks, a white girl and a white boy. They were college-age, and they were amazing…. They went out in the street, came back and said, “Our client's telling the truth. We talked to a lot of people, and they were like, ‘Yeah, that white dude tried to rob him, and the client whooped his ass.’”

So I put [the client] in the grand jury…. The assistant was some shrinking newbie that didn't know what she was doing. And when people see it's me as the defense attorney, they'll send a supervisor. So the supervisor was there, in the grand jury chamber. The supervisor looked at me and said, “What's he gonna say, that he was the one getting robbed?” And I just looked at her, laughed in her face, and walked away. (Author laughs) I was like, I ain’t talking to you about it, white woman. You’re going to see it when it happens.

I already knew my client won at that moment, because the one thing that they weren't going to be expecting was a dude as bright as me as the accused. And my client tore the ADA's ass up in the grand jury. (Author laughs) The grand jury was like, this is ridiculous. They kicked that case so fast. That was one of those cases where putting the client in the grand jury worked out. I like the grand jury. I don't suggest that everybody go in, but sometimes you just have to take your shot. And it was a lot easier prepping him knowing that he was telling me the truth, as opposed to prepping someone to have a good story.

So that was a case where investigation really played a role.

Defender I had a case when I was in Brooklyn. I had a case where a client was charged with robbery in the first degree in a housing project called the Pink Houses. I don't know if you've ever heard of the Pink Houses, in East New York. That's probably the worst project in New York City; I don't think there's anything worse than that. Cops are afraid to go into the Pink Houses. No one goes in there.

I was looking for a witness, but no investigator wanted to go in and find this witness, because they were all scared. But this one female investigator said she would do it. She went in and she found the witness, and literally, this witness is the person who cleared my client. You can't ask for a better ending for something like that. We presented the evidence to the ADA after we got through with all of that, and the ADA, to their credit, accepted it. My client was released, and they dropped the case. But that was directly because of an investigator who had enough courage to go in and risk her life to find that witness.

Defender In one particular case, my client was accused of the robbery of two 14-year-olds on the Staten Island train, which only goes from one end of the island to the other. It turns out that one of the 14-year-old kids was the son of one of the members of the DA's detective squad. It was one of their kids. So there was an extra push to move the case forward to some sort of disposition that entailed jail. It was my client's first arrest; he was in his twenties, if I'm not mistaken. It was a two-defendant case; they never caught the second person. The descriptions that they gave of both people varied from my client and the person he was with.

The client had been someplace else, so alibi became important. He had been at a nightclub; his brother had had an engagement party. [The client] had been flirting with the waitress and speaking to her in Spanish—“Put the tab on my credit card” and things like that—trying to impress this young lady.

Now, I'm not a club person. It's not my thing. But I had to go to this club at, like, 11:30, 12 o'clock at night to go find this waitress. I walk in, and it's a bunch of kids; and I'm like, oh my God, I'm old as shit. (Author laughs) Okay, don't stand out like a sore thumb. Bob your head and [move] your hip a little bit and find this girl so you can do what you need to do and get the hell up out of there. I was able to find her; we spoke for a little bit, and then she gave me her contact information. Later, I contacted her. She was a dental hygienist, in school; and this was her part-time gig. But she remembered my guy. Why? Because he was flirting and trying to impress her and whatnot….

The case went to the suppression hearing.¹⁴ We’re going through the ID process the police used, and how many times [my client’s] picture showed up in this array,¹⁵ and whether or not there were suggestions to the kids beforehand of what they were looking for and whatnot. I told the ADA, “Listen, It's not my guy. I’m not saying they weren't robbed; but it's not my guy. Come talk to my witness.” And thankfully, this ADA spoke to the witness.

When we came back for hearings, [the ADA] said, “Judge, I can't in good conscience go forward with this case. I do not believe that this defendant that currently stands before you is the person who committed this act.” The judge flipped out: “We're in the middle of hearings!” And he's like, “Judge, I don't know what to tell you. I spoke to a credible alibi witness whom I have no reason to disbelieve, and at this time I am withdrawing the charges.”

Not every investigation, however, vindicates the client. Sometimes, investigations prove that the client is not being honest. Consider the following stories:

Defender I had a domestic violence case where my client said that he had never hit his wife. He claimed that they just got into an argument. The bail was set pretty high because the wife’s injury was really bad. It was a felony, but he hadn't been indicted yet. He was in jail on bail. And so right before the 180.80 day,¹⁶ my fantastic investigator went out and got me video of my client violently assaulting his wife. She had really, really bad black eyes, like bulging eyes. My client insisted on testifying in the grand jury, but before testifying I thought it prudent to let him see the video and photos my investigator took of his wife.

So I just opened my laptop and showed my client the video. It was in the hallway of their building, and he was taking her out (demonstrated a punching motion). Then I had a colored photo [of his wife’s face] that I put up against the window, and I said, “This woman still looks like this, because my investigator took that picture of her. She's going to go into the grand jury in 15 minutes”—I made that number up—“and testify.” And then he just broke down and cried.

I think [doing that] saved him an indictment, because not only did this happen several times, but he was in contempt [for violating a prior order of protection]. There was a child there, their child in common, who was injured. (Author reacts) All of those things were so bad. So he had to have that moment because I think people aren’t aware of the danger they can put themselves in by testifying in certain proceedings like the grand jury hearing, especially early on in a case. A lot of people live in an alternate reality…. I explained to him the myriad of things that we could do [to resolve his case], but the fact is that he could not go into that grand jury, and that his wife should not go into that grand jury, and that we needed to give ourselves a couple of days of “waiving time”¹⁷ so that we could set something up to get him in a better situation.

We had a whole thing set up for him by the time the case was over. But had the investigation not been done, we would’ve been in a really bad place.

Defender I had a client arrested for a DWI. He swore up and down he wasn't driving. “I was with my friend. I was just sleeping in the car. Everybody parked their car on the sidewalk.” Part of the allegations was that the car was on the sidewalk, in front of a pole…. He’s like, “Oh, there was a party, and the police came, and my friend put me in the car, and they went back in to the party for a little while, and I got arrested while they were back in.” So I kept saying, “Well, alright. You’re saying it’s your friends, so give me their contact information.” [He never did]. So at some point, I send the investigator out there. Even though we didn't get video, which is what we were hoping for, we left contact information for the businesses around there. So the manager from the bar my client claims he went to called us back. That was pretty helpful, because the manager was able to say, “No. That order of events, no. This is what happened: the police did come, but by then we were shutting down. Nobody came back in here after the police came.” So that was helpful to let us know, all right, so we're not going to go with that.

FN 13: An ACD (Adjournment in Contemplation of Dismissal) is a mechanism used to end a criminal case in a manner that doesn’t involve the client taking a plea. Usually, the case will be open for a period of six months to one year, during which the client does not have to return to court but must “stay out of trouble”; and at the end of that period, the case is dismissed and sealed.

FN 14: A suppression hearing is a proceeding in which the defense challenges the constitutional legality of evidence the police acquired. Evidence includes, but is not limited to, tangible substances, statements elicited from the defendant, and identifications of the defendant by a witness during a procedure arranged by the police.

FN 15: The term “array” refers to a “photo array,” an identification procedure in which a person who is the victim of an alleged crime is shown a number of photos of people that (are supposed to) match the general description of the alleged assailant. The police have the alleged victim views the photos and see if the person picks out anyone and identifies them as the assailant.

FN 16: For an explanation of 180.80, see the second-to-last response to the second question in this chapter, the question about arraignments.

FN 17: This is in reference to 180.80; a client can waive 180.80 time and extend the period the prosecutor has to indict a case. A defense attorney will waive time in situations where, for example, they are trying to work out a plea before indictment and do not want the prosecutor presenting the case to the grand jury.

How important is plea bargaining in your practice? What are your thoughts about it?

In New York State, 99% of misdemeanor charges and 94% of felony charges are resolved by guilty pleas.¹⁸ For better or for worse, plea bargaining is a major part of any public defender’s practice. One Defender states: “I hate it … but it’s hugely important.” Another Defender notes that plea bargaining “is definitely a necessary part of the system we have in place here, because you at least have the opportunity to try to reduce the seriousness of what the person is facing.” Another Defender describes plea bargaining as “the grease that makes the wheel go around. The district attorney can't try every case. They know that; we know that.” Notes another Defender: “I feel like most of what we do, unfortunately, is plea bargaining. I think our system is designed for most of the people who come to court to not actually go to trial. I don't think we even have the capacity to try every single case.” Yet another Defender adds: “So much of the work that we do is negotiating dispositions; [only] 2% of cases go to trial. So your whole job becomes just negotiating things….” Another Defender states: “Unfortunately, it's too important. Somebody would be lying to you if they said it wasn't a huge part of their practice.”

Plea bargaining generally consists of clients pleading guilty to lesser charges than they are facing and receiving a lesser sentence than they would if convicted at trial. In exchange, clients give up their right to go to trial. One Defender elaborates: “So a plea bargain specifically is where there's an offer, because a plea to the charge is not a bargain. A plea to the charge is something that you can get from the judge, and you just deal with the sentence. On a true plea bargain, where your client was arrested for, say, grand larceny, which is a felony, the prosecutor could put the case in the grand jury and indict it. But if the client is willing to take a misdemeanor and a year [in jail], or a misdemeanor and six months, or a misdemeanor and three months or 90 days, or what have you, then you do that.” Felonies can be pled down to lesser felonies or misdemeanors; misdemeanors can be pled down to violations, which are non-criminal transgressions of the law. In approaching plea bargaining, another Defender notes that the first goal is “just trying to make sure clients don't get a record. If you can’t do that, then minimize the damage as much as you can.”

There are lots of incentives for accused persons to take a plea. The client that actually did whatever he or she is accused of has an incentive to plead guilty, particularly where the evidence of guilt is strong. One Defender elaborates: “There are cases and times where you’re just dealing with the cards that are given, and it’s like, okay, here's something that we can take. We have a decent offer. If your client is saying, ‘Yes, I did this,’ they're on camera, and there are no suppression issues, then you kind of have to take that and run with it….” In those instances, plea bargaining can be really useful. Another Defender states: “Of course, there are times where my clients get a huge break, or we're able to negotiate something really favorable so that they don't suffer any other collateral consequences.”

However, innocent clients also take pleas often. One reason is timeliness. One Defender tells his clients that court is “not like television, and that the client could have an open case for a year or longer.” Another Defender notes that in a lot of cases, it “gets to the point where the offer is so good and the client has been coming back and forth to court for such a long time that the client often decides to just take the offer.” Another incentive for innocent persons to plead guilty is skepticism about how fair juries are to Black and Brown folk. One Defender’s practice experience in Staten Island provides a useful example: “Not everybody is willing to take the risk to go to trial, to go before a jury. I know a lot of clients that, since they were in Staten Island, would be too afraid to go to trial.” Clients that have been laid off work because they have pending criminal cases are also inclined to plead guilty so they can get back to making a living. Additionally, as another Defender points out, incarcerated clients will plead guilty to get out of jail: “I struggle with figuring out, and I ask myself: Is the prosecutor really going to be able to prove this? Sometimes I don't feel like they would be able to prove the case; but because my clients are sitting in jail, or just want to get the case over with, [plea bargaining is] something that I struggle with.”

One of the biggest incentives to pleading guilty that Defenders see is the desire to avoid the dangers of an unfair criminal judicial system. Some Defenders note clients' fears of the “trial tax,” or the practice of judges imposing punishments after trial that are far harsher than the punishment the client would have received had s/he pled guilty. Moreover, there is the very real danger in America’s judicial system that an innocent person could nonetheless be convicted after trial. Another Defender explains: “I think, given how I view the system and my position in the system, [plea bargaining] is very important. I think even when our clients are 100% innocent—and I hate using a phrase like that, but let’s go with it—the way our system currently is, it’s still a crazy hurdle for them to overcome and actually get a verdict in line with that reality. It’s not necessarily impossible, but it’s a fight. Were our system actually about justice and actually a fair and unbiased system, I think I would personally be more comfortable not plea bargaining as much in my practice.”

Despite the widespread use of plea bargaining, most Defenders dislike it and wish more cases would go to trial. One Defender notes that “the more and more trial experience I acquired over the years, I realized how often prosecutors’ cases are really not that good. They're not always as solid as you think, and the witnesses are not as great as you think. I think one of the dangers of the plea-bargaining system we have is that I see attorneys that really don't have a notion of what is a good offer and feel they have to take whatever the prosecutor offers.” Another Defender adds: “I think we plea bargain too much.... I would appreciate if we went to trial more. In states like Florida, they have trials. They have real speedy trial;¹⁹ in 90 days, you go to trial. So I'd appreciate it if cases were able to be tried in a more expeditious fashion.”

Part of what makes plea bargaining distasteful for attorneys is the massive advantage prosecutors have in the process. Before discovery reform in 2020, part of the advantage came from not having information; the prosecution knew a lot more and could delay providing information. One Defender details a more enduring disadvantage for Defenders: “I also feel that the mandatory minimums in felony cases gives the prosecutor so much power in negotiations—really unfair power in negotiations—because it's not even like you can go to the court and ask the judge to undercut them.²⁰ Say you have a [first-degree robbery case with] a kid who’s maybe 21, 22 years old, and you're trying to get a deal, but the prosecutor's not going to offer less than five [years in prison], then there's nothing you can do. That's the minimum; it's either five or go to trial. And five years is a lot of time. It's really a lot of time. With our social workers, we put together reports. We find information about our clients that we use to try to mitigate. We do all that stuff, but it's still an unfair power dynamic. And I think that's one of the big problems with our system, that the courts are required to follow those sentencing rules.”

As a rule, Defenders do not force clients to take pleas. They do, however, have serious conversations with their clients so that they understand the risks and potential benefits of accepting or rejecting a plea offer. One Defender avers: “I make it clear that I will ride with the client and go to trial if that’s what the client wants to do. If the client wants to resolve the case a certain way, I will take it to the prosecutor and try to reason with them.” Another Defender concurs: “I'm not going to force my client to accept a plea just because; however, we're definitely going to have serious conversations about what accepting a plea means and what not accepting a plea means. And I always tell my clients, ‘It's your case. I'm down to ride with you, no matter what you want to do; but as your attorney, as an attorney doing this for a while and knowing how things can go, I have to make sure I impart to you the potential risk and consequences. Once I do that, if you, of knowing and sound mind, want to take that risk and you're willing to deal with that potential consequence, then we’re down to ride. We’re riding.’ But I have to be serious with [my client] in that discussion, not flippant, not like, ‘Yeah, this is what they’re offering, but that probably means they have a weak case anyway.’ Sometimes that's the case; but a lot of times, it may not necessarily be.”

Sometimes, litigation and preparation for trial is the best negotiation strategy. One Defender explains: “I like to write; so I'll write a motion in a heartbeat and I'll make them work more than they would otherwise. I have certain ways of getting what I want out of a case.” Another Defender notes: “You need to investigate and be able to know your strengths and your weaknesses in the case. Just because you're getting a plea doesn't mean it should be the top plea or as much jail as the People want. And there are things that you can present to mitigate. So you still have to work up the case, even if it is going to be a plea.” Another Defender states: “The difference with the way I conducted my practice is I started from a point of trial. Every case that I got, I thought, let me plan for trial on this. And I would prepare for trial. If we negotiated a plea, then fine; but I felt that I was in a better position because I had all my ducks in order for trial. And the ADA knew I was ready, willing, and able to go to trial on it, so they should give me their best offer, or maybe we will go to trial. So that was the way I approached it.”

A couple other responses:

Defender I feel like plea bargaining is a necessary evil; the system is set up in a way that you cannot take every case to trial. And then you have the cases where, if you take them to trial, it's just going to be bad for your client…. So I would say it's a necessary evil. I did a lot of negotiating with district attorneys, more than I would've liked. That annoys me. I think that that's part of the reason why, after a while, I was like, I gotta get out of this “going to court every day” thing.

When I talk to family members who are not familiar with the criminal justice system, they don't understand why I'm not taking every case to trial, because they thought that that's what I would do. I [used to think] that’s what I would do. So it just becomes a demoralizing thing. And then the only thing that I ended up doing is just trying to make sure clients don't get a record.

Defender I mean, the overwhelming majority of all legal cases either plea or settle, no matter the discipline. So plea bargaining is just part of that. There were moments where I didn't like the fact that my clients had to plead out. I always felt bad for my misdemeanor clients that would plead guilty to get out [of jail]. I’ve said to some of them, “Look, I could beat this,” or “Look, I think you got a good case.” But I understand it: getting out is getting out; and if you're not looking to do in life what I'm looking to do in life, having a record doesn't matter the same way. It's not as bad of a scarlet letter.

I'll tell you one thing though that I disliked, and this one is a tough one: I didn't like the fact that we would get into the habit of beating our clients in the head to take a plea. My white colleagues are standing in front of a person that they feel doesn't understand what they're facing and how serious things are, and [they’re telling that person] how this deal is the best thing for them. And feelings of paternalism and class superiority would come out of their explanation, which would make the clients back off or think that they're being railroaded. And that's not what it is at all….

For me personally, in my practice, I stopped beating people in the head to take pleas after I left [public defense]. And I would just say to people, “Look, here are your options. I don't give a fuck what you do. I think this is a better alternative to us going to trial and losing, because for you it’s a bad case.” And that'll be that.

Plea bargaining is such a weird thing, and it's even worse in Manhattan because Manhattan doesn't give good offers. You’ll go snitch on half your family, and Manhattan will still go, “Okay, you get seven years.” (Author laughs) [And you’ll say], “What?! I gotta go upstate as a snitch now? Now I can’t dial it back? I'm stuck?” Yeah.

But yeah, Manhattan's horrible. They’re the worst. The worst!

FN 18: See NYSACDL, NACDL & NACDL Foundation for Criminal Justice, The New York State Trial Penalty: The Constitutional Right to Trial Under Attack 3 (2021), https://cdn.ymaws.com/nysacdl.org/resource/resmgr/docs/nystrpenreportupdatedfinal.pdf.

FN 19: “Speedy trial” refers to statutory requirements that govern how quickly a case is to be brought to trial. New York City is notorious for cases taking prolonged periods of time to be tried. See, e.g., Ali Winston, Speedy Trials Return to a Bronx Court Known for Delays and Dysfunction, N.Y. Times (Aug. 9, 2018), https://www.nytimes.com/2018/08/09/nyregion/bronx-misdemeanor-backlog-settlement.html.

FN 20: Prosecutors have control over what an accused person is charged with. While a judge can offer a client a sentence on the top charge, only the prosecutor has the power to reduce a charge (and concomitantly reduce how much time a client is facing).

How much do you like going to trial? Tell us about a trial you had.

Going to trial is the one part of the job that most people visualize when they think about what criminal defense attorneys do. Yet, Defenders have mixed emotions about going to trial. Some Defenders enjoy trying cases. One Defender states: “I love to go to trial. I mean, I'm terrified of it, but I love to do it. It's an adrenaline rush.” When asked how much she liked to go to trial, another Defender replies, “Oh my God, I loved it!” Yet another Defender reacts similarly: “I love it. That is my sweet spot. That is where I roll, and that's where I set a lot of people free.” States another: “I'm one of those people who became a lawyer to be a ‘trial lawyer.’” One Defender notes: “Having the opportunity to go to trial has been the most beneficial thing for my clients. When we go back to negotiating and a prosecutor knows I'm willing to go to trial—not that I'm even going to win, but just that I'm willing to go and fight—that is a huge thing. And then when you start telling your clients, ‘I've been to trial X number of times and I have a good record,’ that gives them more confidence. It gives me more confidence that I know, oh, I can do this thing that seems so hard.” Another Defender gives the following answer:

I love to go to trial. Listen, that's one of the reasons I chose to be in criminal law. I like to go to trial. I mean, there are other aspects of the job that we've talked about, but I find it exciting to be on trial. It is challenging. You're forced to think quickly on your feet. You have to be prepared. It’s all the things that attracted me to law when I was a kid, before I started thinking about social issues and stuff like that. All the things that attracted me to the law, those are all the things that going to trial represented for me…. When you spank an ADA at trial—you don't even have to win; you just spank them—to the point where they don’t really want their colleagues in court when they wait for a verdict (ADAs usually love to have their colleagues in the audience when they're waiting for the verdict because they expect to win), you have major bones with that ADA. They're going to think twice about trying a case with you in the future. Because their mindset is they expect to win every single case at trial, because they don't bring cases to trial that they think they can't win. So they expect to win. If you give them that kind of a tussle, where it's just a bad experience for them, it's hard. They have to work hard. They have to think. And they're going to be more reluctant to take you to trial. They're going to give you a reasonable offer nine times out of 10….

You have to be willing to go to trial, and you have to let your adversary know that you’re ready to go to trial.

Other Defenders are less enthused. One Defender states: “I'm not a big avid fan of going to trial at this stage in my career…. Let me clearly state that if I have to go to trial, I will go to trial. I've done a lot of trials. I've done over 35, almost 40 trials, as a younger attorney in Florida and later in New York. But it's always a risk and I just don't want my client to go to jail.” Another Defender further captures the apprehension many Defenders feel about going to trial: “I don't know. I always say I want to go to trial, but then I get so nervous; and then sometimes I question myself like, am I good? Am I a good lawyer? Why am I nervous about going to trial? Then a really experienced attorney that I respect said, ‘If you're trying a case and you're not nervous, you’ve been doing this for too long. Because at the end of the day, you have somebody else's life in your hands. Somebody else’s freedom is in your hands, and you can't take it lightly. So for you to not be nervous at all means that you've been doing this for way too long, and you are probably doing your client a disservice.’ That made me feel good because it's like, alright. At least I know that there's nothing wrong with me.” Another Defender concurs: “I always felt nervous because to me, it was such a heavy burden…. Keeping someone from losing their freedom was just a heavy weight to carry around. I call it the trial diet. Anytime I was on trial, I lost a substantial amount of weight….”

Nonetheless, seldom as it is, going to trial is a necessary part of the job. One Defender explains: “I don't know if I think about [trial] as a like or dislike; it's a tool in our arsenal that we have to use. You can't be a public defender and be afraid of going to trial, because then honestly, this shouldn't be the job for you. There are cases where they're not offering you anything that's worth taking.” Another Defender agrees: “There are some attorneys that are very averse to trial, and I think to myself, what's the point of being an attorney if you're so scared to go to trial? I mean, if you explain the risks and the client wants to go, then go. And sometimes you have zero choice, and you just have to go because [there was no good offer] that your client could take, or [the plea offer is] not immigration safe….”²¹ According to one Defender: “For me personally, that's a tough question because I don't think going to trial is about me or what I feel. You get what I'm saying? To me, if we can't have a meeting of the minds, or if my client is like, ‘I don't care, we're going to trial,’ or [the client is] not taking anything, whether they should or shouldn't, [then we’re going to trial.]”

Going to trial is not about whether or not the client is factually innocent or guilty; it is about what the client wants to do. One Defender notes: “The way I've always conducted my practice is, I don't care if somebody's innocent or guilty. I have absolutely never in my life asked a client, ‘Are you innocent?’ or ‘Are you guilty? Did you do this?’ I never have and I never would because, frankly, I don't care. I don't care what they did or didn't do. It doesn't make a difference. And they hate to hear me say, ‘I don't care what you did. It doesn't matter to me. I don't care if you did it. I don't care if you didn't do it. It doesn't matter….’ All I care about is what the ADA can prove or not prove. That's the only thing that [is of] any concern or interest to me.” Another Defender states: “I'm not necessarily someone who gets super giddy about it; I do think in my practice, I am more risk averse than some colleagues. But it’s also not like, oh my God, this is the worst thing ever. I never want to go to trial! I want to do more trials, actually. But I just don't feel it's my decision; it's my client’s decision. That's how I feel about it at the end of the day.”

The Defenders have had great trial success in their careers. Because of the substantial stakes involved, however, the losses often stick with them. One Defender notes, “The thing is, I don't remember most of the wins; it's the losses that I remember…. Whenever you lose, at least whenever I lose, I feel like I failed my client. I didn't do what I was supposed to do for my client. So it always affects me. That's why I remember the losses. You could ask me how many wins I have; and although I've won way more cases than I've lost—my win rate is like somewhere around 80% when I go to trial; it's really high—it's the ones that I lose that stay with me.” Another Defender concurs: “Funny enough, I don't remember too much detail about the cases that I won, but I remember almost to the tee all the details of the cases I lost. The first time I heard a life sentence [pronounced by a judge] is when I understood the saying, ‘Silence is deafening.’ … [Hearing that put] this ringing in my ear that just never stopped. It was the very first time I heard that. I was standing next to someone who was in his late forties, early fifties; and to hear that sentence for the first time, and you're standing next to the person who's about to face that 20-to-life and knowing how the criminal justice system works—it might be more than 20 years, because the parole board has to approve him for release. He has to survive at least 20 years to even be considered for release—I’ll never forget that feeling, that deafening silence, the ringing in the ear.”

Here are a few trial anecdotes:

Defender I remember the first trial I had. It was the deadest trial case that one can conceive of. It was a grand larceny case where the complaining witness described every aspect of my client, including the big red button that she had at the bottom of her coat. So when we were on trial and they asked her, “Do you see the person who robbed you?” she gets up—and the jury loved her—and she says, “I’d know that heifer anywhere!” The client was an older woman. The jury was out for six hours, which was surprising because we all expected them back in five minutes. We expected them to say, “We don't have to go outside. We have a verdict.” It was the deadest case. But at that time and during those years, lawyers went to trial on the dead cases, and junior colleagues tried the dead cases that all the senior attorneys didn't want.

I remember the supervisor telling me when she was evaluating me that I did everything right technically. I said, “Yeah, but there's a ‘but’ there. What is it?” And she said, “Yeah, but you weren’t yourself.” It was because I had this conception that I had to be lawyerly, and that I couldn’t be as relaxed as I usually am.

That comment changed my life. After that, I started loosening up. I said to myself, that's true; I'm talking to people! I became the lawyer that my colleagues would come to in order to get tips for doing jury selection. So I started liking it. I remember the first trial, I had an officemate who said to me: “[My Name], you're going to get to a point where you're going to know that you're made for this, because you're going to like it.” I said, “I'm never going to like this, so just stop it. I'm always going to have a heart attack before trial or whatever.” And then I remember the first time that I did a cross examination, that it just clicked. I went over to my officemate and told him, “Oh my God, this is so much fun!” And he said, “I told you; I told you.”

Defender I love going to trial. I can talk about many trials. I had a case in Brooklyn where the client was charged with various counts of assault in the first degree and attempted murder. He was accused of using a machete and cutting folks in the home where he resided, and all of the family members were testifying against him. He didn't have anybody to testify on his behalf, other than himself. It was a very difficult case. She had all of the witnesses who had injuries, and they were a good family. They didn't have any type of criminal record, and it's just him. He testified in that case and we went [with the defense of] justification. We were able to be successful in that case, and the success came again through the investigation … but also through a very strategic decision in jury selection.

There was a juror who disclosed that she was a victim of a crime and had been gang raped. Typically, from the defense, you hear that someone was the victim of a violent crime, and that's not who you want on the jury. But there was something about that moment that in my mind, I thought that maybe she could actually be the juror that sees this defense and really pays attention to it and finds in our favor. So, when I questioned her about her experience, I asked her if she was alone, was she by herself? And she said, “Yes.” I asked her, “How many guys was it?” And she said it was two of them. [I asked her if she felt defenseless and helpless, with nobody being able to help her]. She said “Yes,” and she broke down and started crying. So that was my defense, that it was three against one and that he was helpless with nobody there to help him. And she was my number one juror, to the ADA’s surprise. So that case to me was a fascinating one where the strategy worked out….

[I had] another case, in the Bronx. My client worked for a company called Mystic Tank Lines. It was an oil company, and he was a driver delivering the oil. He was accused of stealing the oil and making a stop. The company noticed that they were losing oil and profits. They put a GPS device under his truck, and they were able to determine where he was going, taking the oil, dropping it off. They followed the truck, and he was arrested at a competitor's site, unloading the oil. So [he was] sort of caught red-handed, and we ended up going to trial in that case.

We won the case, and it was investigation again—see everything, all roads lead to investigation. We really investigated the company, and we saw that they had filed for bankruptcy; and the reasons they filed for bankruptcy was for employment discrimination and sexual harassment. So the CEO testified in the case about how they did their little covert operation. So the theory was that they were using the client as a scapegoat and trying to suggest that [he was the reason] why they had lost money instead of the real reason, [which is] that they've been discriminating against people in the Bronx and the community and sexually harassing them. And so, you have a Bronx jury. (Author laughs)

There was also the fact that they didn't use the police, that they decided to do this whole investigation on their own and conveniently catch him in the act. That was something that wasn't credible to the jurors. Why wouldn't they get the police involved and have the police do those type of operations, as opposed to them playing cop?

The last case I'll tell you about—I have so many of them, like I have so many; you ask me about a case and I'll talk forever—but it was one case I had. I'll never forget the client, because he hated public defenders and he hated me in the beginning because I worked public defense. He didn't want to go to trial. He declared, “I'm not going to trial with [a public defender]. You think I'm crazy? You think I'm gonna let you blow my head off? No, I'm not going to trial with you.” But then we got stuck together because the lawyer who he wanted had gotten sick. It was a private lawyer, and a well-regarded lawyer.

[The client] was accused of domestic violence by the mother of his child. They were in the elevator, and she was accusing him of taking out a gun and firing a gun at her and her mother…. So he was charged, I think, with attempted murder or something to that effect and was facing a lot of time in jail. The pretrial offer in that case I remember was 12 years in prison. The ADA, who's now a defense attorney but at the time was a prosecutor, had made that offer; and the client was rejecting it. Then we get to trial, and right before the jury [is brought in for the first time], he says he wants to take the 12. So I step up to the judge and say, “Judge, my client is going to take the 12 years.” The ADA says, “Oh no, I don't think you understand me. When I make an offer, you have to reach up and you have to take it, because if you don't take it, it's gonna vanish in thin air. That offer is off the table; the People don't have an offer.” The judge said, “Well, I'm not making an offer.” So imagine how I look to this client now, like this public defender can't even get the 12 years that I want….

So we ended up going to trial; and again, investigation is so important. So before the trial, we went to the elevator where the incident took place. We were looking for the bullet holes and indentations and all that stuff. We even had them stop the elevator at a level so we can go underneath the elevator. The police never did. There was a hole [in the elevator] that they were going to claim was the hole that his gun caused. So we were looking for the [bullet] cases, underneath the elevator, and nothing was there. We didn't find anything with our ballistics expert and our investigator….

[So the prosecutor’s] expert testified that it's a bullet hole, and we crossed them. We eventually asked them, “Did you even go underneath the elevator to see where the bullet went? Did you even do that?” The expert said: “No, we didn't do that.” [Then we had] our expert take the stand and say, “We actually did that.”

Me: And what, if anything, did you find?

Our expert: We didn't find anything.

Me: And how thorough was your search?

Our expert: We searched the entire elevator.

Me: And so what do you conclude from that?

So we did the investigation, and we came out on top in that case. So yeah, I have a lot of cases; I mean, I can go on and on…. It's always fun when you win, right? You can tell stories forever about when you win. I hate losing. One of the things I've always disliked, I will say, is this mentality that winning is not important. “Oh, it’s all about the fight, it’s all about—” No, our clients need to win. Winning is important. I'm not doing it just to do it, just to get somebody to feel good that the I’s were dotted and Ts were crossed. Our clients want to win, and we have an obligation to present the best possible defense for them to be able to achieve that.

Defender I had a client that was arrested for attempted murder. I really was going to put her in the grand jury because I felt like she had an excellent story, a really, really good story. But she had a co-defendant (her sister), and co-counsel did not agree. And so I felt like they both had to go in or no one could go in, so she didn't go in. With that case, we were trying to resolve it without her having to go to trial, because we didn't think it was the best case. She ended up being acquitted, but—this is juror stuff—while I think there was a lot of reasonable doubt, the thing is that our clients were quite attractive. They were two women and they were always dressed to the nines anytime we came to court. Since they were sisters, they sat pretty much on top of each other and would kind of like link arms in the courtroom. They would get there all the time, before 9:30.

And when I say dressed to the nines, I am not kidding. They wore heels. They wore skirts. I mean, dressed; hair, makeup, everything. Everybody was always looking at them. I remember a DA supervisor asked me, “Why are they here, [My Name]?” I was just like, “Oh, it's attempted murder.” [The DA supervisor] was like, “Really?” So I thought to myself, OK, based on their looks, we already have a shot, because once again, jurors pay attention to the wrong things in my opinion. So I thought, we're gonna keep this dressed-to-the-nines look. Somebody had them calm it down [with their hairdos]. And they were good witnesses. They both testified and they were really, really good witnesses; they were much better witnesses than the prosecution witnesses.

The acquittal was five minutes; that's what it felt like. I felt it was an easy case: either you believe them or you don't. There should not be any long, drawn-out deliberations. After the acquittal, we went outside to wait for the jurors. The foreman came out and hugged my client for like five minutes. Then one of the court officers asked her out….

Defender There were cases where I begged clients not to go to trial. There was one case where this gentleman was accused of assaulting his wife, but it was a felony because he had already been convicted of some sort of misdemeanor assault with his wife, so under the statute it became a felony. They had had a dysfunctional relationship. When he got the misdemeanor conviction, he never had to go to jail, but he consequently had a criminal record. This guy was maybe 68 or 69 years old. He had never been to prison, or at least certainly hadn't been for many, many years. He was looking at two to four years [in prison], and his wife was cooperating with the ADA. Her testimony was damning and the ADA was offering him a misdemeanor and 60 days in jail, of which he would’ve done 40 days.

I had a conversation with him where I told him, “I'm not making light of what it would mean for you to go to jail for 40 days, but I am certain that you'll be convicted. I'm a good lawyer, but I'm not going to lie to you. I'll go above and beyond and all of that, but the evidence doesn't look good.” We were in front of this horrible judge who I had had some kind of confrontation with in the courtroom one time. He had a poor opinion of me or [was] suspicious of me, but after the trial he became one of my biggest fans.

But I begged my client. “This guy is going to give you the full time in prison. He's going to give you the max. Don't do this.” And my client didn't listen to me; and he got convicted and [the judge] gave him the max. But I was in such turmoil during that trial….

Defender I think one of my favorite trials was one of my first ones. It was a gun case, and the gun worked, if you knew how to properly tie the gun,²² which my client did have it tied with a bandana; but the police lost the bandana. But if you did have it properly tied, it would fire. If you didn't, and you turn the gun in one direction, the entire half of it would fall out, and it would fall apart. So the prosecutor was trying to prove that this was an operable gun and decided to be demonstrative in his summation. He pulls out the gun, and he turns it in the wrong direction, and it falls apart in front of the jury. (Author laughs) [Needless to say], that was an acquittal. That was definitely one of my favorites.

But going to trial is also really scary; and I feel like the more trials you have, the more things you know that could possibly go wrong. The more trials you have, the more serious the cases you'll be doing. So if things go wrong, the consequences are really, really serious.

Defender So I had a guy—to this day, this case bothers me—that was charged with attempted murder and first-degree robbery. It was a [first-degree robbery charge] on a subway and an attempted murder, where my guy was supposed to have been with another guy on a subway and tried to take this kid off. My guy was supposed to have yelled, “Bust him, bust him,” and the other guy was supposed to have then pulled out a gun and shot this guy…. So the guy shot the kid, and they ran off the train.

[Later on, the police] arrest my client, and the kid [who was shot] identifies my client as being the person who said, “Bust him, bust him.” My client was just adamant that he didn't do it. He’s [like], “I didn't do it. I didn't do it.” Unfortunately, he didn't have an alibi…. So it's one of those cases where I actually believed him. [Normally], I don't really listen to that kind of stuff. It doesn't matter whether I believe somebody or don't believe them. But for some reason, this client got to me; he just got to me. He had a horrible record; he stayed in trouble all the time. But he swore that he didn't do this. To this day I feel in my bones that he didn't do it. It shouldn't make a difference, but in this particular case it did, because he got convicted.

And I'm telling you, I tried the hell out of that case. I didn't have a lot to work with. But I really, really, really tried the living daylights out of that case, so much so that when he got convicted, I had [the judge] poll the jury; and two jurors broke down and cried and said it wasn't their verdict, that they didn't agree with the verdict. Two! (Author reacts) They were crying. I was like, oh good. We have a chance. So the judge sent them back out; and they came back and they agreed with the verdict. I do think the matter was appealed and it got reversed on appeal; but to lose that case, man… To this day, I'm telling you, it's just like a vivid memory of mine. And right after the case, literally every night I would wake up in the middle of the night thinking about that case. My clients mean a lot to me, and that client really meant a lot to me. I felt like I let him down. I felt like I failed him.

Defender I had my first trial like four months into the job. This is in Queens. It was a case that got transferred to me. We thought it was going to be a [disorderly conduct plea, a plea to a violation], and the ADA was offering a misdemeanor and jail. My client allegedly went to a sweet 16 party, and they alleged that he punched the uncle of the sweet 16 girl because the uncle was gay and that he came onto him.

One of the chiefs [in the prosecutor’s office, the trial bureau that the case was assigned to], took a personal interest in this case. The complainant lived in Carmel, California, and he flew out to Queens for this bench trial. So they had an experienced ADA doing this bench trial; the prosecutor chief was attending the trial, seated in the front row; and then the ADAs were packing the courtroom to watch this trial. I'm like four months into the job….

Throughout the trial and after my closing, when I was done, the court officers said to me, “You got this one.” I was walking out to talk to my client, and people in the audience were literally asking me for my card. I’m just saying this, because this is how unfair the system is: I ended up losing the trial. This was a politically motivated trial in Queens; and the judge, who’s now the administrative judge in Queens, found my client guilty and put him in jail….

So I like jury trials. I don’t like bench trials.

The last trial I did as a staff attorney was an A-2 predatory sexual assault.²³ My client was looking at a potential life sentence, so that was heavy; and he's relying on me, and his father's relying on me. While he was in jail, his mom had a stroke. It's all these things that go along with it that [put] a lot of weight on you. If you take your job seriously and you really put everything into it, it's a lot of weight. But I beat everything except for one charge; and I saved him from potentially being in prison for life or for a long time and then on parole for the rest of his life.

FN 21: A plea offer that is “immigration-safe” is a plea offer that does not expose a non-citizen client to adverse immigration consequences, such as rendering the client deportable or inadmissible.

FN 22: In gun cases, the prosecution is required to prove that the firearm in question is “operable”; they have to prove that the gun is capable of being fired. In this case, the gun was in poor physical shape, but a person could theoretical tie the gun with a bandana to keep it together and thereby be able to operate it.

FN 23: A class A-II felony is the second most serious class of felonies in New York, right behind a class A-I felony.

How diverse and fair are the juries in your borough?

This question yielded borough-specific answers. Defender thoughts on juries in the Bronx:

Defender We have some of the best—I haven't practiced anywhere else—but here we have some of the best juries…. I definitely have had some good juries for both misdemeanor and felonies. Sometimes you get the opportunity to talk to them after, and it’s just everyday people you meet on the street. If it wasn't for trying this case, I might meet them in a Dunkin Donuts or something and say hi. And it's funny that sometimes, you develop a relationship with some of them during the trial. Even though you are not directly communicating with them [during the trial], but you speak after the verdict, it's like you’ve developed a relationship with them.

Some of the questions they'll ask you—“Where are you from?” and things like that—it’s like we just met on the street or in Dunkin Donuts or something.

I definitely think the Bronx has some of the best jurors, because I think all of them know about their communities being over-policed for the most part. They know their communities are over-policed; even if they haven't had direct police contact, they see what's going on in the neighborhood with police jumping out of cars and stopping people. Even if it's not them per se, they see it. And I think that plays into the fact that they can at least be open to what we have to say….

Defender Lovely. The Bronx has the best juries in the state.

Defender Amazing. They look like me. I think that the jurors in the Bronx are smart and thoughtful. They're usually what you want jurors to be: true cross-sections of the community, true people that understand their people and aren't being governed by this white judge or this white ADA's interpretation of how community relations should be and what type of justice they want to see. And usually when there's some bullshit happening, Bronx jurors smell it, and they fucking get rid of it.

One time, an older Black colleague and I tried a dumb case. The jury didn’t deliberate long; I feel like they maybe deliberated for an afternoon. They found him not guilty. Then after the trial, the jurors were like, “We're going to City Island. Do you guys wanna come with us?” And I said, “No, but you guys go have a great time.” We talked to the jurors afterwards. They were like, “No, we knew that [the case was weak]. I can't believe they wasted all our time and money to do that.” And so at the end, my client and the jurors ended up going to City Island to have dinner and they had a great time….

Defender thoughts on juries in Brooklyn:

Defender Brooklyn is weird, because Brooklyn is Black, but the jury pool is not all Black. The jury pool is really gentrifying. I’ve had a few jury pools where it was mostly white people.

Defender When I first started in Brooklyn, they were great. When I left [around November 2018], our jury had turned into my perception of the Manhattan jury. They were a lot more conservative. I felt like we came across a lot more executives, people who were recent transplants to Brooklyn who either worked on Wall Street or who had their own businesses. It was really people who didn't necessarily reflect what Brooklyn looked like five or 10 years earlier. And that’s gentrification at work. Even though they said that they were liberal, they came in with a lot of preconceptions; and they came in with a large conservative body that I wasn't necessarily expecting in a Brooklyn jury.

Defender Brooklyn would definitely have more of a mix of Black and Brown and white people, but you’d get the white hipsters and other white people who were like, I’m trying to do better and I know my privilege. I’m trying to help the Black and Brown people. So we definitely have better jury pools…. Brooklyn was decent.

Defender thoughts on juries in Manhattan:

Defender In Manhattan, they’re mostly white folks, or non-Black and non-Brown folks. We sometimes got Black jurors, but it wasn't majority Black. I had been spoiled in New Orleans, because we had a pretty good jury pool when I first started doing jury trials in New Orleans. So I was like, oh, this is an adjustment. A lot of bankers and moneyed folks.

Defender Horrible. Funny: if I win, I'm this great guy, this great lawyer. If I lose, I'm this Black piece of shit sitting next to another Black piece of shit. That's how it feels….

Manhattan jurors are the most pro-prosecution jurors in the five boroughs. [Well], I wouldn't say more than Staten Island; but the difference though is Staten Island people are Brooklyn people that move to Staten Island, so their sensibilities about certain things are not as bad. Like if I had to try a [case involving a] fight, I'd rather try [that case] in Staten Island than in Manhattan. Staten Island people will be like, “Nah, he should have whooped his ass.” You’re not going to get that here in Manhattan…. Anything that involves not being working class, Manhattan is a bad place.

A lot of times, what makes it harder with Manhattan jurors is that like 80% will have a college degree, sometimes two degrees. So their understanding of what happens to people that don't live the life that they live is tough. And sometimes it’s hard to plug into where people are from….

Defender Oh my goodness. My jurors typically are very well educated. Most of them have some type of post-bachelor’s degree. My jurors generally are high income earners. I wouldn't be surprised if the average income on my jury is anywhere between $95,000-100,000, or more, at any given period of time, with any random 75 people that I get. My jury has a tendency to skew Caucasian. It's very difficult for me to get people of color on my jury because with gentrification, a lot of [nonwhite] people can't afford to live in Manhattan. And then regarding the people of color who live there and who have been there for a considerable amount of time, some of them are excluded for one reason or another from jury service….

Especially now, Manhattan isn't really made up of native New Yorkers the way it used to be. I like to know how long [potential jurors] have lived in New York. That is a very big question for me on voir dire,²⁴ because I think that it's very different to have lived in New York for the last three to five years than it is to have lived in New York since the eighties. If you're coming from Ohio or Oklahoma or Kansas or Texas, and you've moved here for a job or for school, your perspective and your community as it relates to New York is different than the people who are from here and have lived here for more than a decade.

Defender thoughts on juries in Queens:

Defender Umm… I want Black people to show up for jury duty. The juries I've had have been very diverse. I have had largely white juries, largely white and middle aged or older, [with] a sprinkling of color, of all colors. I noticed with grand juries, I think because it's harder to get out of grand jury duty, there are a lot more Brown people on the grand jury, because you can't just blow it off. I've actually even served on a grand jury once. It was great. I'm glad I did. It was eye opening. It was shocking and horrifying. It made everything make a lot more sense. It made how cases get indicted or not indicted make a lot more sense to me, and it made me practice differently.

Defender Very conservative, very conservative. They were smart, but you just have to know that Queens is very diverse. You have to know your community. In Queens, you're going to have everyone from South Jamaica to Far Rockaway to Elmont to northern Queens—everyone. So you have to understand the personalities of those neighborhoods. Then you’re going to have your younger jurors from [places] like Long Island City. So you’ll know who is conservative, which case is going to sit well with them and which one will not. I like picking very smart Queens jurors because they know how to see through a lot of the bullshit.

Defender Oh, the Queens juries were really bad. The crazy thing about how bad they were is that they weren't even necessarily bad because they were racist white people. Some of them were people of color and they were bad. It’s like some kind of willful ignorance or conservativeness or something amongst people of color that would be on the juries. I mean, you had white people on the juries that I’m like, oh no, I do not want you on the jury. Definitely. But I remember when I first came into Queens and I heard white attorneys saying, “Oh, the juries are bad because you have these [nonwhite] immigrants who really trust the police.” And I was like, what? And then I saw it for myself….

I will never forget a trial that I had where [there was a Black woman in the jury pool who was very much pro-police]. Thankfully, I don't know what would've happened if she had stayed on the jury, but with her whole demeanor and answers about police and everything, I thought, oh no, she gotta go….

Defender thoughts on juries in Staten Island:

Defender Mainly white on Staten Island.

Defender (Laughter) Makeup wise, predominantly white, predominantly police-related or know cops. They're hard for us because they believe the police. I've gotten yelled at many times by the judge for certain questions that I ask during jury selection. And the judge is like, “But counsel!” And I’m like, “Judge, I need to know if this person is biased.” We get police officers on our [jury] panel; and my question will sometimes be, “Well, having reviewed documents of your colleagues, do you take it at face value? Is that something that you believe?” And nine times out of 10, they'll be like, “Well, if they put the work in, yeah.” So then how can you possibly be impartial in this particular instance when it's your colleagues that are coming into question? The judge yelled at me, turned red-faced. I'm like, “Judge, I'm sorry. It's a question I have to ask.”

Drugs are another hard one. If I ask, “How do drugs or how does drug use impact your neighborhood?” and “What are your feelings towards people who use drugs?”, the judge yells at me. They are hard questions to answer, but it also tells you what people are predisposed to. So no matter what's being said, they know that it's a drug case and your client is accused of selling drugs. So they see my client and think, you're the scourge of the earth. How could they possibly be impartial?

So our juries are not very good. And then the other potential is, “Oh, I know her. She represented my brother.” [So that potential juror] get tossed. Or they say, “Oh, she represented me.” I'm like, whoa, I don't remember you, but okay. The judge is like, “Well, did you get a good outcome?” “Yes, judge. I did. She's fabulous.” So I’m like, great. I still don't remember you, but of course you're getting tossed. So it is what it is. And that's the thing with being here on Staten Island: I've been here so long that people who don't know me know me.

FN 24: Voir dire is the process by which jurors are selected in criminal cases.

Have you worked with interns? If so, what is it like working with interns?

Most Defenders have worked with interns and are generally excited to work with interns. Part of the excitement comes from being able to teach future lawyers. One Defender states: “I enjoy teaching and showing students what I’ve learned.” Another Defender agrees: “I like working with interns. I like facilitating people's first few experiences with the law and public defense. I like doing away with the mystique of it and just making it very approachable and real.” Also in agreement, one Defender has this to say: “I love interns, especially the ones that work. And I've been fortunate to have ones that work…. I'm in this line of business, as you could say, because I was an intern at the PDs office, and this is what changed my trajectory of wanting to do entertainment law into doing criminal defense…. I love interns because I love to mentor. I love to groom. I love to impart knowledge. But I also appreciate the assistance and the help because of the caseloads that we have and the workload that we endure….” Another Defender adds: “Oh, I love interns. I loved interns because I was a schoolteacher for a decade before I became a lawyer. So I loved interns because I love the idea of teaching; for me, it was always about teaching and learning.”

Part of the excitement also comes from the energy eager interns bring. One Defender explains: “I think it's invigorating, because you see an intern that's a little bit younger and is really excited about the work; and I think that that makes you more excited about the job too. So I think it's important to have interns around, or just new blood in general. I think it injects vitality into an office.” Another Defender adds: “I feel like when you've been in a pattern of doing things the same way or thinking about issues in the same way, because that's just ‘how it's done,’ it can sometimes take the energy or the enthusiasm of a law student to help you think about things a different way…. So I always enjoyed working with students, especially the ones who were really committed and excited about being public defenders. I felt like it just always created a new energy.” Concurs another Defender: “I love working with interns. They're young; they have energy. They keep us on our toes. I think it's so important to have that kind of energy in an office. They ask the questions that you start to take for granted, and then you pause and you're like, oh wait, you're right. Why can't I do it like that? Oh yeah. Why did the police do that? They force you to stop and sort of think about the things you take for granted. I also enjoy the mentoring role, guiding them, working with them.”

Of course, not all interns weigh the same. One Defender explains: “Sometimes you get interns who are really eager, really smart, really dedicated; and they work really hard. Some of them also happen to be very skilled in terms of being solid and strong writers. Sometimes you'll get interns who have all those things in terms of being smart, dedicated, etcetera, but need a little extra help in terms of getting their writing and things like that together. Those interns I don't mind. The interns that I cannot stand are the interns who don't put in any real effort. They don't put any real effort into the space. This is an unpaid internship, so they aren't looking at it with any sort of true reverence and respect for the work.” Another Defender describes interns as being “hit and miss. I've had a few really good ones and others that weren't so good. Some are idealists and certainly have laudable views, but we also have to go to court and try to keep people out of jail.”

Defenders generally share similar ideas of what makes an intern good. One Defender opines: “I think what makes a good intern is someone who's really working to figure out, what's the particular problem here and how can I contribute? I want them to take some initiative and do something.” Another Defender describes a good intern as “a person who has an interest in the work, but also an interest in learning. A person who has good research skills.” Notes another Defender: “My philosophy on internships is you're supposed to do an internship to expose yourself to the type of work [you’re interested in] to see if it's what you want to do. You should be open to all the aspects of the job. So a good intern has to come in with that mindset, that this is a trial run of the type of work they might want to do. The mindset should be that there’s exciting stuff, and there’s mundane stuff. The internship can’t be all the sexy, exciting stuff, and it can’t just be all the mundane stuff. It has to be a combination for [the intern] to get the most realistic experience of what it means to do this type of work.” Another Defender explains: “What makes a good intern is someone who understands that they're working a job; regardless of whether you're getting paid, an internship is still a job. You still have responsibilities. So a good intern is someone who understands that.” Perhaps most important is having an intern who could connect with the client population. One Defender elaborates this way:

I think different lawyers have different perspectives; but interns who can relate to clients are the best interns for me. I remember I had one intern—I was picking interns—and the administrator, the supervising attorney who had the information about the interns, gave me some paperwork about a particular intern, her resume…. He [told me that], while her resume was strong, he noticed her legal writing wasn't strong at all. And I said to him, “Okay, so let me meet her.” So I met her, and I was talking to her; and she said that when she was young, she grew up in a housing project. Her mother would take her to the window and allow her to observe what was happening with the police and the folks that lived in her community; and her mother would say to her, “You've gotta make a decision about who you want to be based on what you see out this window.” Early on, she realized that the person that she wanted to be was somebody who could help the folks in her community [who were] obviously being mistreated by police officers.

I never looked at the writing sample after that, because I had no interest in it. I did not care if she couldn't write two sentences; we could figure that out. I'm a teacher; I could teach her that. We could learn that together. Her heart was in a place that I thought was most needed by our clients, particularly people who looked like her and me. That was the deciding factor. I think for me, the intern's ability to relate—and relate is such a huge, heavy word—was crucial.

When I practice law, I look at the person next to me—if I can; I can’t always do it, because sometimes the relationship just doesn’t allow for it—but I always try to look at the person next to me as someone in my family, in my community, someone who I'm getting to know on a personal basis. To be able to do my job effectively, I always felt like that's an integral part; and I wanted interns who could do the same.

On occasion, Defenders have interns that are below par. Some interns are lazy and irresponsible. One Defender relates having had an intern “who just never showed up. I don't think I ever met him. We met over email. I gave him an assignment. He responded with a shitty reply. And my thing is, you're the intern; you're here to learn. I'm not your babysitter. So you need to come and look for me and ask for work. And he just never showed up. I asked my officemate, ‘Did you ever see this dude?’ He's like, ‘Nope, never came by.’ So my officemate never saw him. Then when it was time to give an evaluation, I just wrote, ‘He wasn't around.’” Another Defender adds: “Nothing bothers me more than an intern who doesn't want to work. So there's always those rotten ones who think that this is just something to pad their resume with, and they're going to sit in court and wear their suits and just look like attorneys for a couple of weeks. Those bother me.”

Some interns are conniving; they have prosecutorial aspirations and take defense internships with the hopes of learning things from the other side that they can exploit. One Defender actually had an intern admit this: “I actually had one intern say, ‘The exclusionary rule just benefits the guilty.’ I said, ‘What are you doing here?’ They said, ‘Oh, I wanna be a prosecutor, but I think it'll help me if I can say that I have some defense experience.’” Another Defender had a similar intern one year: “I once had an intern who was doing a split summer with the Brooklyn criminal trial office and the Queens DA. I was fortunate to have found that out early on. I told him that he was not allowed to sit in on any client interviews or any client meetings, and that I was not going to be giving him any work or writing assignments, so he should determine whether he wants to continue to work with me because I'm not giving him any window in terms of our clients' lives….”

Defenders also notice that the intern population is generally not racially diverse. One Defender notes that interns tend to be “mostly white females. I'd say 75-80% white female.” Another Defender concurs: “There's definitely a lack of diversity amongst interns. There are very few interns of color in my office.” Because of the lack of racial diversity, some Defenders don’t work with interns at all. One Defender refuses to work with interns “because the [office] doesn't have interns of color. Those same white interns become the new class, and they become know-it-alls. They don't want to listen to anybody. So I don't even bother. Nope.” Many other defenders take to focusing on nonwhite interns. One Defender notes: “The majority of them are white, and I try to work with the ones that are not, because a lot of times, the interns of color will not get the same attention and opportunities as the white interns.” One Defender co-started “a program to get interns of color into the office.” Another Defender shares: “I especially like giving Black interns an opportunity to work in spaces that they may not otherwise have access to. They were always the minority; the majority of interns were white women.”

The dynamics between Defenders and the average intern at times poses problems; one Defender recalls having to “get rid of one intern. She made me very uncomfortable to the point where I felt I needed to always have somebody else in the room just so the story that got told wasn’t just from me.” As a clinical professor, another Defender has had his/her share of run-ins with students:

I've had rotten experiences with students as a professor, and it's been for a variety of reasons. Some students have been arrogant; and I think when you're arrogant, nobody can teach you anything…. I think there are just some folks who are a little less receptive [because] they might have done an internship somewhere before, or even worked professionally before coming to law school; and they think they know so much and that there’s really nothing you can teach them. That can be really challenging.

I had a student recently who was supposed to submit something for a client that he didn't submit after weeks of asking for the thing to be done, like really too long. Then once I had to address it with him, I had him tell me that he didn’t need my attitude. (Author reacts) So that I thought was really shocking. That kind of stuff I think is really disappointing….

A few other responses:

Defender I've had some great interns who went on to be great public defenders, and I've had some useless interns. I think a lot of people aren't quite in the mindset to contribute; they're still looking to be parented, to be taught, to be given. So when you're a public defender and you have a hundred cases, you quickly identify whether someone is there to help you or to add to your burden. So I think the interns who wanted a lot of explanation or wanted to talk a lot, or were looking for a level of mentoring that was not appropriate to what they had put into this situation, were challenging for me to deal with.

Defender I worked with interns all the time. I loved working with interns. I was an intern; I went to [this particular law school,] and they were all about internships. All of my interns have gone on to do transactional work or public defense. I just finally had an intern who went to the Bronx District Attorney’s Office, in the domestic violence unit. I was like, oh my god, I'm really falling off. I couldn't believe my intern became a prosecutor…. So she became a prosecutor, and then there was this huge scandal that happened. I was reading an article where this guy was talking about how a group of prosecutors signed on to this letter condemning the Minneapolis DA in the wake of George Floyd.²⁵ I looked at the letter, and I was so proud to see my intern’s name on there. I thought, OK, something sunk in. Because I really try to work on the mentoring and really letting interns see the nitty gritty and letting them see the humanity of what we do. So it was nice that she had signed it. I thought to myself, all is not lost.

Defender I had one intern that I didn't want to be terrible, but she was. She was so bad. You could just tell that the job wasn't for her…. As an intern, this job requires you to interact with people, right? You have to be able to talk to a client; and if you can't talk to a client, get the hell out of here. This is not the internship for you.

I had an intern who was just terribly shy. Everybody has their niches, what they're good at, be it writing arguments or stuff like that. But I think as a public defender, you have to find a combination. You have to be able to write to some degree, and you have to be able to talk to people. You have to be able to stand in front of a judge and be ready to get your ass handed to you at any given moment. And a lot of our interns would get on the record and take pleas, or go and talk to clients, or go on investigations, things like that. And this young lady just did not have that in her. She was terrified of everything—everything. She was terrified of talking to clients. She didn't want to get on the record to take an ACD. She didn't want to interview anyone. She just didn't want to do any of it. She was just good at sitting and taking notes. So that's what she did. She took notes. And also, when other people asked her to do things, she just didn't do them. It was simple stuff, like, “Write me an omnibus motion.” She just didn't do it….

FN 25: See the last three pages of the following link: https://www.nycdetectives.org/wp-content/uploads/2020/06/BRONX-DA-LETTERS-2.pdf.

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