John (not his real name) came into my life at 5:16 P.M on July 17th of 2001. I was sitting in my office, recovering from a long day when the phone rang: “Mr. Feige?” The unfamiliar voice on the other end of the phone makes my name sound like ”Ferg”
“Detective Infante 48 Pct here. We’ve got line up—homicide” Detective Infante has the clipped officious delivery of a movie cop. “You’re the lineup guy right?”
(This is a DIFFERENT John Katzman)
I was a little flummoxed—detectives don’t normally call me looking for counsel for a lineup, and though I’d done a lot of work on the subject of getting a fairer lineup procedure adopted, I didn’t think my fame ran to the NYPD. “Yeah, I’m the lineup guy” I said hesitantly, “Who’s in custody, and why are you calling me?”
“Guy’s name is Katzman” Infante tells me brusquely--”And we gotta do this one now—we’re doin’ in at the 48 in one hour. Consider yourself notified”
I know most of my clients—and particularly those charged with Murder, and I am sure I have never had a Katzman. This is strange, I think. Detectives hate having lawyers around for a lineup, something very unusual must be going on if the cops are calling for counsel.
It was my first glimpse of how resolute John Katzman was. It was as if a lifetime of incarceration had produced a patina of professionalism. John, had insisted on a lawyer for the identification procedure, and calmly told the detectives over and over “I understand my rights, I don’t wish to waive them and I’d ask you to please contact a lawyer for me”. He was the one in a thousand that was completely unflappable, smiling patiently at the police as they badgered and bullied and threatened. John, nodded politely, and explained quietly over and over, how important it was that everyone respect his right to remain silent and his right to an attorney—rights he fully intended to exercise.
The thing is, when a detective calls after 5:00, and says that a lineup needs to happen that night, two things are certain; first the detective is hoping you can’t or won’t make it, and second, that it’s going to be a long night.
Infante is still on the phone waiting…
“You got fillers yet?” I ask trying to gauge just how long the night is going to be.
Fillers are neighborhood guys, often homeless. The NYPD pays them 10 bucks to stand in a lineup beside the suspect. Fillers are a critical part of any lineup—not just because they are a necessary pre-requisite, but because the degree to which they match the suspect has a huge impact on the degree to which the lineup is a fair one.
In most cases, the fillers in New York City lineups are atrocious. Finding guys willing to do it is difficult and cops see getting them as a chore. The result—they take pretty much anyone they can get, and the result of that in turn are almost absurd situations in which there is no one else in the lineup who really resembles the person the cops want the witness to pick.
Infante tells me he’s working on getting fillers now.
“Fine. I’ll call you in 45 minutes. Whenever it goes down, I’ll be there.”
No restaurant opening for me.
Kimmy was pissed. My ex-girlfriend and all around partner in fun, Kimberly Stevens lead the kind of New York life kids from Wisconsin dream about: Restaurant opening one night, movie premier the next, constantly swinging from one star-studded magazine party to the next. Kim, was a contributor to the Style pages of the New York Times, and got so many invitations she could barely keep track of them.
Even as an Ex, I was regularly the beneficiary of her social largesse—often claiming the top slot in the pathetic competition for the coveted +1 designation.
Calling her, I try to explain that I’m not going to make the opening:
“Sweetie…these things just happen…it’s not even a client of mine…it was just a call out of the blue.”
“Well why doesn’t someone else do it?” she reasonably wanted to know.
“It’s a murder honey—and I’m almost certain to wind up with it anyhow—so I’m just gonna do it. I’ll call you from the precinct and let you know…”
As sad as it is to disappoint a friend, there is a deep satisfaction in being the kind of public defender that defies expectations. Going the extra mile is alluring precisely because in a justice system deluged with low expectations, decent performance can have a transformative impact. The reality is Infante doesn’t expect someone who isn’t getting paid anything extra to give up a Thursday night to sit around the homicide task force waiting for fillers. To him, the early evening call was a bluff he was sure he’d win. John too, locked in his cell in a crowded precinct, didn’t think they’d find anyone at 5:30. But in the same way that defying the stereotype of the public defender makes missing a party or an opera worthwhile—it makes showing up at the precinct--the later the better—supremely satisfying.
5:50: Infante still has no fillers.
I have used the time to round up a few summer interns to keep me company. Matt Davis, a clean cut kid who would eventually grow his hair long and graduate from Harvard Law School, and Scott Levy, who, after his graduation from Princeton, would go on to become a great investigator. Neither has been to a lineup before.
I brief them, and we wait.
Just after 7, Infante calls to say he’s got fillers. Like a number of things detectives regularly say, “I’ve got the fillers” is always a lie. We leave anyway. With the cigarette stop at the gas station, the 48th precinct is 20 minutes away.
Long before Bronx homicide moved to the stately renovated manor house that eventually housed the marquee assignments of Bronx Cop-dom—(Special Victims, Sex crimes and RIP (a special robbery squad)), the Bronx Homicide Task Force was jammed into a small squad room on the second floor of the rundown 48th precinct. Buried under the hulking pylons of an elevated section of the Cross Bronx Expressway, the 4-8 was a dingy but vibrant stationhouse built in a style that would have made a soviet architect swoon for it’s brutal unadorned efficiency.
The entrance, facing the underside of the highway, opens into a reception area reminiscent of Hill Street Blues. Walking in, Matt and Scott are treated to a typical NYPD tableau: a large central desk, filled with baskets of forms, packed with milling uniformed cops and presided over by a disaffected desk sergeant. On the side, more cops--pairs and trio’s gathered around corkboards jammed with flyers—union messages, wanted posters, and row upon row of recent regulations.
“I’m here for the line up—the homicide.” I tell the Sargent.
“Who’re they?” is all he asks me motioning toward Matt and Scott.
“They’re with me.” I say. “Investigators.”
“Have a seat,” the Sergeant says, gruffly picking up a phone and motioning toward a row of uncomfortable chairs pushed up against the opposite wall. Five minutes later we’re cleared, and head upstairs.
Walking into the Homicide Task Force office, I pass through knee high swivel gates -- saloon doors for Lilliputians. It has the feel of stalking onto the Wild West.
Infante is waiting.
“He’s over there.” is all he says, hooking a thumb toward the cage where John is sitting.
It’s 7:35 at night and while most of the kids I went to law school with are sitting around fancy conference rooms in six hundred dollar loafers, or heading home to suburban houses, I’m in the middle of the Bronx in a pair of dirty blue jeans about to meet a supposed murderer.
I couldn’t be happier.
“Mr. Katzman,” I say, walking over to the bars, and slipping a card through them. “My Name is David Feige, and I’m gonna be your lawyer. These two guys,” I nod at Matt and Scott, “are investigators from my office, they’re just here to watch.”
John regards me with warm eyes and an easy smile. I lean in, face pressed up against the bars, back to the hubbub of the homicide task force room. I haven’t yet seen John’s RAP sheet, and have no idea whether or not he’s been through the system before so I start with the basics:
“Mr. Katzman,” I say carefully, “I don’t know much about what’s up here, so all I can tell you is this: They’re looking at you for a homicide, they wanna do a lineup, and that means we gotta be serious, and we gotta be careful. Now I don’t know if you’ve said anything to them yet but…”
John cuts me off. “I’m familiar with the process.” he says evenly. “It’s alright…I understand. I haven’t made any statements…” He trails off and I smile.
Now I know what I’m dealing with.
Interviewing clients at a precinct can be a dangerous proposition. Most of the time, they’re desperate to get to a lawyer—desperate to explain their side of the story, naïvely certain that they can talk or explain their way out from behind the bars. Many of them have already made statements to the police, and some are baffled as to why the explanation hasn’t proved sufficient to set them free. Faced with a lawyer, many clients wrongly think that re-iterating their statement will help, and that once the lawyer is convinced, it’s a simple matter to set them free.
In that, as in many things, they are wrong.
Generally, I preempt any such discussion by making clear at the outset that I don’t want to talk about the case or lack of a case. Leaning further into the bars hands on either side of my head, I make this point to John. “I don’t want to discuss anything about what might or might not have happened right now,” I tell him, “so everything we talk about tonight, is just gonna be about procedure.”
John, has no illusions. “No problem at all.” he says.
I like him already.
“And by the way Mr. Katzman…” I nod as my right hand, palm down, snakes through the bars, fingers covering the cigarette pack below. Reaching out, knowing exactly what is going on, John holds my gaze, while takes my hand gently, relieving me of the Newports.
“Thanks for coming down.” he smiles.
Newports are a sure fire way to start off on the right foot with a client. A sealed pack of Newport 100’s—(sealed to protect me against any allegation of passing real contraband) slipped wordlessly between the bars, just after I introduce myself—is an unspoken proclamation of empathy—I know you’re stressed out, I know being in a cage really sucks—I know you want answers that I can’t provide. But I know the drill, I’ll bend the rules and right now this is about the most I can do for you.
Cops use this as well. Newports are the perfect gift. They are (or were until they were banned from Riker’s recently) a favored form of jailhouse currency—worth favors and commissary all around the island. Slipping someone a pack, assuming they’re not fresh faced and scared (in which case they’ll just get jumped and robbed of the cigs), will put them in good stead for their first week or so on the inside.
At 7:45, Infante still has no fillers. I hand him a written request asking him to do the lineup a particular way; he throws it in the garbage.
“I’m gonna do this my way.” he says.
“Why don’t you and your investigators just wait downstairs.”
Another half an hour.
I call Kim on the cell phone to tell her I’ll be even later than I anticipated. I can imagine her shaking her head on the other end of the phone. “Ok doll.” is all she says.
Somewhere around 8:15, three hours after Infante assured me he had his fillers, five men walk in, herded by two uniformed officers. Ranging from 5’ 6” and 150 pounds to 6’2” and 235, they seem to have little or nothing in common with John who is 5’10” and 210 pounds. The men file by, joking with one another as they ascend the steps.
Twenty minutes pass, and finally Infante is ready.
“Everybody ready?” Infante asks. And then, without waiting for an answer, he turns, and heads for the viewing room.
And there, in the narrow room, my back pressed up against the wall, two extra detectives crowding in, I get my first look at the witnesses against John. Two sharp raps on the one way glass. Everyone stiffens. The blinds go up.
“See anyone you recognize?” Infante asks coolly, as a wan looking woman scans the lineup.
Seconds tick by in agonizing silence as she looks back and forth among the men before her.
“Take your time.” Infante says, “No one can see you…” his voice trails off.
“I don’t see anyone.”
“Take your time.” Infante again—an edge in his voice.
Seconds tick by.
“I don’t see anyone.” the woman repeats feebly, seeming confused.
“Just try to remember…” Infante again, it’s been 45 seconds maybe more, the tension is palpable—Infante is trying to force a pick…
”She just said she doesn’t see anyone.” I say sharply.
“Quiet counselor!” Infante snaps, but my voice has refocused the mounting tension.
“Sorry.” the witness says simply. And she’s led out. The blinds come down. Infante is glaring at me.
“One more.” it’s another detective from the squad—ready to bring in the next witness. Once again, the lights in the little room go off. There is the rap on the window, the stiffening. A man this time, a tall African American man with darting eyes. It’s unclear whether he is high or just nervous, but he stoops toward the window peering carefully through it.
“See anyone?” Infante asks.
The man starts to make a light humming sound, like he’s thinking.
“Take your time…” Infante urges, while the man seems like he’s going to say something any moment. His lips are pursed and he’s still making that gentle humming sound. I’m counting the seconds off, trying to keep track of how long it’s taking him when he finally says something….
That’s it. Infante is visibly upset.
“Look again!” he says sharply. My heart is racing, and I’m trying to decide whether or not to interrupt again, the prospect of two no-hits in a lineup making the entire evening seem like a very worthwhile temporal investment. The guy still hasn’t said anything. It’s been over a minute.
“Are you sure?” Infante says. “No one can see you…don’t be afraid.”
The man is shaking his head, but Infante’s urging seems to fluster him. He is taking one more look—almost exaggerating the motions of attentiveness when I finally say
“Seems like that’s a no.”
“Yeah.” says the guy. “I don’t see no-one”.
“Thanks for coming in.” Infante says, but the tone makes it clear that the end of the sentence is “you fucking skell.”
I make a note on my pad. Two no hits. The lineup room door is opened, and John is escorted back to the cell.
The fillers relax, tearing off their fake moustaches, and signing the lineup vouchers so they can get their ten bucks.
“Stay calm.” I tell John standing at the gate to the cell. “It was two no hits.”
He just nods.
I ask Infante for copies of the lineup polaroids.
“Forget it.” he snaps, you’ll get ‘em in discovery.
I fix him with serious gaze “Detective, with two no-hits, and no further witnesses, I assume you’ll be releasing my client?”
Infante ignores me.
Another detective ambles over. “What happened?” he asks.
“Two no hits.” Infante says.
The other cop raises an inquisitive eyebrow, but Infante nods sharply hooking a thumb toward the cage where John is standing:
“Book him anyway.”