Robert Tanenbaum - No Lesser Plea

Donald was silent at this. Then he let out a long shuddering sigh and got unsteadily to his feet. In a dull, small voice he said, “OK, Sonny, tell me what you want me to do.”

“First, get yourself cleaned up. Then I’ll take you up to Midtown South. You walk in and tell the desk you want to talk to Detective Slocum. Tell him everything you told me, and whatever else he wants to know. He’s a good guy. I’ll take care of Ella and getting you a lawyer.”

“Will I go to jail?”

“Well, for a while. But we can probably swing bail.”

“No. I don’t want to be out.” He looked straight at Dunbar with red-rimmed eyes. “I’m scared, Sonny. That man scares the livin’ shit out of me. I better stay in jail.”

Elvis missed them by about ten minutes. He strolled into the lobby with his new Borsalino cocked over one eye and went directly to Room 10. He knocked a couple of times, and when nobody answered he slipped the lock with a piece of celluloid that had come, conveniently, with his new hat. Look like old Snowball went out for a while, he thought. This was definitely the right room, though. He recognized the bottle of Scotch that Louis had given Walker. He was not inclined to wait around in the smelly room for Walker’s return, however, and so he left the cash bag on the little shelf above the sink. He was about to close the door, when he remembered Louis’s lecture on fingerprints. OK, he had the paper bag, he hadn’t touched anything in the room, not even the inside doorknob. He shoved the door closed with his foot and carefully wiped the outside knob with his shirttail. Whistling as he walked off, he felt very clever indeed.

“Good morning, gentlemen,” said Judge Edward Yergin. He glanced over at the defendant’s table and saw that it was empty. “Mr. McFarley, have we no defendants this morning?”

McFarley laughed. “Your Honor, the Legal Aid lawyers are still down in the holding pens.”

“Well, invite them in,” said Yergin.

“Your Honor, the first cases on this morning’s calendar are represented by private counsel,” the clerk replied.

Yergin said, “Call the first case,” and McFarley read from a sheet of paper, “People versus Hutch. Burglary and criminal possession of stolen property. Defendant Willard C. Hutch, please come forward.” As McFarley read the change, the defendant, who had been out on bail, came forward with his attorney. Karp searched through his stack of files. In theory, each case on the calendar should have been represented by a complaint in the stack. As each case progressed through the courts, each Assistant DA was supposed to keep the file current and then return it to a clerk, who was supposed to pass the file on to the assistant DA who would be handling the case next.

But by the time each case came to trial, it could have passed through the hands of half-a-dozen assistant DAs and as many clerks. The files were often misplaced, in which case the ADA could either muddle through without it, or ask for a delay. This morning there were seventy-five cases on the calendar and Karp had fifty-three files.

The file for the Hutch case was there, however, and Karp scanned the complaint form rapidly. This form had been prepared in the DA’s Office Complaint Room weeks before. Occasionally, Karp could pick up complaints the night before so that he could look them over before going to court. More often, the stack of cases was not prepared until he arrived at 10 °Centre Street in the morning. When that happened, as it had this morning, Karp’s total preparation time for a case ran to about two minutes.

The Hutch case included a sworn affidavit given to an assistant DA in the complaint room by the arresting officer, a detective. The detective stated that he had received information from a tenant in a housing project that Hutch-also a tenant-was burglarizing apartments. The follow-up investigation found another tenant who said he saw a man fitting Hutch’s description leave an apartment-not his own-carrying a stereo. The detective had obtained a search warrant and found stolen stereo components in Hutch’s apartment. Hutch was arrested, but the witness was unable to pick him out of a lineup.

The file also included Hutch’s yellow sheet, which showed numerous burglary, breaking and entering, and possession convictions. OK, Mr. Hutch is a career burglar. He’s pleading innocent to the burglary charges. This is a hearing to determine whether there is probable cause to charge him with the crime. We have physical evidence to prove that Hutch was holding stolen goods, but no evidence to show that Hutch stole them.

As Karp scanned the file and considered what to do, the judge said to the defendant’s counsel, “What’s your motion, Mister Steinberg?”

Marty Steinberg was a typical small-time defense lawyer, who represented dozens of petty and professional criminals every week, and who was as much a fixture of the Criminal Court as Jim McFarley. Graying, sixty-odd, slightly shabby, he cruised the Streets of Calcutta like a pretzel vendor, occasionally stopping at a pay phone to dictate a motion to his secretary, whom he rarely saw.

“We are now ready to proceed, Your Honor.”

“Are the People ready?” the judge asked Roger Karp.

Karp asked, “Your Honor, may I approach the bench?”

Karp and Steinberg now stepped outside the record and into the dark and oily crankcase of the criminal justice system, where the real work was done. They spoke in low voices. “Judge, the People feel we can make a disposition on this case right now,” Karp said.

“How so?” asked Yergin.

“We’d be willing to drop the burglary charge, if, and only if, the defendant agrees to take a guilty plea on the charge of criminal possession.”

“Sounds OK,” said Steinberg.

“Hold on, Marty,” said Karp. “The defendant must also agree to maximum time. We’re talking a year in the pen.”

“What? Why maximum?” complained the defense attorney.

“Because if it’s not max, we’ll go to trial on both burglary and possession, and we’ll win on possession at least, and get max time from the judge anyway. We could also get lucky and win on burglary, in which case you’re looking at a lot more time.”

Yergin’s eyes met Karp’s in understanding. This was what the judge had been talking about. The threat of trial greased the system and made it possible to render justice in fact, if not in form. “Counsel, this sounds reasonable to me,” Yergin said.

“Let me discuss it with my client,” said Steinberg, and went back to his table to confer with Hutch for a few minutes. He returned to the bench and said, “Your Honor, I’m ready to proceed.”

Yergin now spoke out loud. “Mister Karp, do you have any motions?”

“Your Honor, the People wish to drop the charge of burglary against the defendant.”

“Charge dismissed.”

Steinberg spoke now. “Your Honor, my client wishes to change his previously entered plea of not guilty to guilty of the crime of criminal possession of stolen property.”

With that, Judge Yergin sentenced Hutch to a year in prison. The gavel came down. Bang. Next case.

The morning wore on. The wheels creaked. Assault, one year. Assault, no defendant, bench warrant. Larceny, assault, no defendant, bench warrant. Shoplifting, sentenced to time served. Assault, no witnesses. Where are the witnesses? Not here, Your Honor. Move to dismiss. Witness has appeared five times, Your Honor. Each time, the defense has requested adjournment. Request case be put on the bottom of today’s calendar, Your Honor. Granted, next case. Mrs. Murcovitch whispers her testimony. The kid with the hat goes up for a bullet, still smirking. The cop with the broken toe speaks his testimony in the stilted copspeak they all used-“the perpetrator then proceeded …” Next case. Next case. Next case.