The Brooklyn Rail

FEB 2011

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FEB 2011 Issue

Character and Fitness: Chapter 4

Character and Fitness is a semi-autobiographical novel about an unemployed social justice lawyer and his nurse girlfriend living in a shitty apartment complex behind a strip mall in suburban Philadelphia, the birthplace of our democracy. The novel explores the alienation and estrangement that working class, thinking people feel in America. The characters inhabiting this novel are trying to make their lives about something more than simply making money, which makes them strangers in a strange land. This month's installment begins with Chapter 3.


“Giants-49ers NFC Championship…”


He’s too nervous. He’s got to have his act together in front of the judge. I’ve got to try and calm him down. “Okay, Giants go into San Francisco, right? Everyone thinks it’s an automatic win for Montana and The Machine. What happens?”

“Giants pull it out on a field goal.”

“That’s right, Joe. Say it with me. We’re the Giants.”

“We’re the Giants.”

“Are we gonna win this thing?”

“We’re gonna win this thing.”

“Eye of the tiger?”

“Eye of the tiger.”

“We’re gonna shit lightning and crap thunder?”

“We’re gonna shit lightning and crap thunder!”

“I appreciate you bringing me in on this one, Joe. You were done wrong. You’ve got a right to be here. Now let’s get in there and win this thing.”

I’ve been through courthouse security thousands of times as a public defender, but it always takes me back to this one time when I was 16 and went to visit my dad in prison. I had been to a Husker Du show the night before and still had a nickel bag of weed in my back pocket. I was standing in line with all the other broken-hearted family members when it hit me that I was on the verge of committing a felony that was going to ruin me for the rest of my life. I grabbed my stomach and pretended like I was sick, ran outside, acted like I was puking and flipped it through the 10-foot tall razor-wire, barbed-wire fence. To this day, it’s always put a smile on my face to think of some poor con walking along the yard, feeling all sad and beat down about his life and like nothing good can ever happen to him again, and then to look down onto the gravel prison yard and say to himself, Hey, that looks like…Must have made him believe in god, or at least Johnny Cash.

We take the elevator up to the fourth floor and get out into a long hall lined with portraits of revered and august men of law, most of whom thought that segregation was a good thing, that homosexuality was an abomination against the lord and that the Japanese needed to be locked down during WWII. Nonetheless, they have fabulous facial hair and for this they deserve our respect. Who knew that the gay porn moustache was as big in 1872 as it was in 1972? We turn into the bathroom: dirty and gross on nearly all counts, but I once read that Thurgood Marshall used to meet with his clients in the bathroom. Not really, but these are the sorts of things you tell yourself.

“Now, here’s the thing,” I say, going to wash my hands. “To you this is the biggest deal in the world, but to them you’re just a number, one of 300 people they’ll see today. The first time they look at your case, will be when they call it.”

“Okay, okay.”

He’s got on a solid grey suit and with the thick neck reminds me of a hard-ass district attorney, but I can still see him thinking that he doesn’t belong in court. I would always sing Stupid Marriage in my head as a way of chilling out—my name is Judge Roughneck, and I will not tolerate any disobedience in my courtroom…Naked woman, naked man…Where did you get that nice suntan! But don’t think he’ll know who The Specials are, so back to football.

“Hey, besides all this court stuff, I am just curious…” I go over and dry my hands. “Who do you think the greatest quarterback of all time is?”

“Hate to say it, but Montana.”

“How come?”

“He knew what they were going to do before the game even started.”

“He was prepared.”


“Just like you,” I say. “I can tell from the emails that you’ve been sending me that you know what’s going on. You got this. So what are we doing?”

“We’re gonna work the system.”

“That’s right,” I say. “You got your motions?”

He opens his briefcase and pulls out several sheets of paper that are paper-clipped together in thick packets. They’re nothing but props. I emailed him a few cases and a couple of motions off Lexis Nexus to make it look like he’s coming in fully loaded. “So, just like we talked about…You go up there, put your briefcase on the table like you mean business, hold up the papers and say that you want to make a motion…”

“I want to make a Motion to Suppress.”

“What am I even doing here? You don’t need me. I’m leaving right now. If I ever need a lawyer, I’ll call you. How much do you charge?” He laughs and finally loosens up. “Now, they’re going to say something to you about making these motions out of order, needing to request a pre-trial hearing, motions in limine…”

“Motions in lemonade?”

“Yeah, I always thought that, too.”

“Some of those words are hard.”

“Yeah, that’s true, but it’s all smoke and mirrors and done on purpose just to freak you out…” And I go about detailing the manner in which the legal system engages in intentional obfuscation with regard to jurisprudential considerations both procedural and substantive so as to prevent the full assertion of constitutional rights, for, assuming arguendo, said rights were fully asserted with regard to all matters civil, criminal, juvenile and administrative—then the whole shithouse would go up in flames. “So, don’t think of it as a courtroom, Joe, just think of it as a processing plant. There’s no justice going on in there, just processing, like cheese. Look, I know that’s not your kind of talk, but that’s what you’ve got to be thinking when you walk in there: I am not another piece of cheese.”

He shrugs his shoulders: “I don’t have a problem with it.”

An award-winningly cheap voice inside my head says: Yeah, most people don’t when their ass is on the line. “So, I don’t want you worried about any fancy legal words or anything that you might hear. They might think you’re crazy, but that’s exactly we want. You just keep marching forward. You get me, soldier?”

“Roger that, sir.”

“Well done….So, after you hold up the briefcase and say that you want to make your motions, and then they say whatever they’re going to say, what’s next?”

“Rules 402 and 403.”

“Outstanding, Giants’ fan. Outstanding.”

“What are they again?”

“Rules in a book, that’s all, like Monopoly…If you really want to know, they’re meant to keep from wasting the court’s time, which is exactly what we’re going to do.”

I catch him giving me a weird look.

“What is it?”

“You, dude.”


“You’re like a different guy.”

“What do you mean?”

“You just seem like a different guy.”

“Like how.”

“I don’t know, you seem bigger than usual. More stand up.”

I don’t know how he meant it, but it strikes me to the core. I feel bigger than usual. I feel like me right now. And I haven’t felt like me in a long time. I have been made smaller by doubt and rejection. I’ve lost a lot of the outward mojo that I used to have. And that outward mojo is a big deal, it’s the presence that makes you seem important to other people, it’s the force field that gets you through life.

“I guess I had my Wheaties this morning,” I say.

“You had something.”

“Okay, where were we?” Put it behind me. Keep moving forward. Make sure he has what he needs. “Okay, so after you go with Rules 402 and 403, then what are we going to do?”

“We’re gonna get constitutional on their ass.”

“That’s right! What’s the line?”
This courageous violation of the Fourth Amendment merits suppression.”

“Okay, that’s close, but let’s give it another shot: This EGREGIOUS violation of the Fourth Amendment merits suppression.

“This egregious violation of the Fourth Amendment merits suppression.”

“You know what, man…I was in law school three years before I could even say that line…And here you are picking it up from a couple emails. I fucking can’t stand smart guys like you.”

He briefly looks down at the ground like a shy, embarrassed boy—total opposite of his usual tough guy front. Moments like these, you see how some guys go their whole lives without ever being told that they’re smart. He looks back up. “It means that a cop just can’t come up and mess with me, right?”

“That’s exactly right,” I say. “Remember when we were talking and you said something about how it’s like illegal to be…”


“Well, the Fourth Amendment means that it’s legal to be,” I say. “You can be in a place, hanging out, just doing your own thing and they can’t give you any heat for it.”

“Roger that.”

I go into the stall to take a piss. “Just in case, I forgot to mention this,” I say over my shoulder. “They may say something about getting an attorney. Maybe, maybe not…I just don’t want you to get thrown off by it…”

“I want my pro se right, right?”

“Where’d you hear that?”

“I looked it up on the Internet.”

“That’s all lawyers do anyway.” I say, flushing the toilet.

“You got a spot on your pants.”

“Thanks.” I go over to the sink and clean it off.

“So what kind of lawyer are you in life?” he asks me.

“Criminal defense,” I say.

“You represent the criminals?”
“Well, I represent people.”

“What kind of people?”

“Poor people.”

He squinches his face up with disgust. “Like poor criminals?”

Another cheap voice goes off inside my head: Yeah, like you, Joe. “So what else do we got?”

“You said to demand my right to a jury trial.”

“That’s right,” I say, drying off my hands. “Insist on it. Let them know that you’re not screwing around.” I’m not even sure that he has a right to a jury trial in this case, but the key, as in all matters of righteous struggle and resistance, is to make The State believe that this guy is going to be an absolute and total pain in the ass. “All you are is some pot charge to them,” I say. “And now they’ve got to conduct an investigation, argue motions, prep witnesses, subpoena the cops….”

His cell phone rings. “I got to take this…”

“You’re not really supposed to have cell phones on in here, Joe.”

“Yeah, yeah, just give me a minute.” He turns away from me and answers the phone…“Yeah, I’m gonna come over there after I’m done with this. Nah, it shouldn’t be too long. Couple hours. I’ll call you when I get out. Yeah, definitely tell him we’re coming over…Maybe shoot over to Mulligan’s, it’s two-for-one, get’s packed…”

As they make plans to go out and party later, I think back to my old teacher in high school. He was this great guy, taught great books, but on Fridays when we bolted out of class I could see that sad look in his eyes as though he had given everything to us and had nothing left over for himself. I never wanted to be the good teacher with no life, looking at a weekend of pizza and bills in a one-bedroom apartment.

“All the boys are getting together,” he says, putting the cell back in his pocket.

“Yeah, no problem.”

“So that’s it, right…That’s when they drop my case?”

“No, they’ll say that you can pay a smaller fine,” I say. “They’re going to try and make it seem like they’re doing you a favor, when all they’re doing is trying to get you processed with the least amount of work possible… So, like we talked about, that’s when you’ve got to…”

“Yeah, I didn’t get that…” he says.

“What?” I ask.

Apprendi?” he says. “I didn’t understand it. What does it mean?”

“Honestly, it doesn’t even matter what it means, Joe, because no one really knows what it means…But okay, for the record, it’s a Supreme Court case that stands for the proposition that sentencing factors which add extra time to a penalty must be heard by a jury but don’t even worry about it….There are all these tripped-out cases in the law where nobody has any idea what anybody else is even talking about,” I say. “You say the word Apprendi and all they’ll think is that you stole somebody’s card to the law library and are going to spend the next month looking up all sorts of crazy shit that’s going to make their lives miserable.”

“Got it. Apprendi”

“That’s right, Apprendi.” I check myself in the mirror. “You ready to do this?”

“Motions, 402, 403, egregious, pro se, jury trial and Apprendi…”

“Like I said, what am I even doing here…?”

We walk past a long roll of paper in which people are being encouraged to sign their names in general support of the police department, then go into a small courtroom and sit down in the back. The usual mass of poor people waiting to be processed: blacks and browns for the most part, looking nervous, vulnerable and scared. The first few times I saw it, I was literally taken aback. It was shocking. I couldn’t believe how racist it was. The leg chains and handcuffs made it look like a modern-day slave auction. But after a while I got used to it and started seeing the criminal justice system as just another industry. Black, brown or white, it doesn’t matter, poor people make the best raw material for processing, because they can’t defend themselves and therefore keep the overhead low. The material is then shipped to small-town America where it’s converted into a product by people who, sadly, have no choice themselves but to spend most of their lives in prison as it’s the only game in town. Corporate agribusiness has taken over farms, corporate box stores have gutted local businesses—the only option these rural communities have is to give huge tax breaks to corrections corporations and beg them to start building jails. In this way, it’s the old story of playing off lower-class whites against inner-city blacks: if conditions in the ghettoes were to ever improve so that crime went down, it would result in mass joblessness for rural America. It’s a zero sum game at this point. Meanwhile, the prison-industrial complex is generating billions if not trillions of dollars in profits for shareholders on Wall Street, which is to say that incarceration—the opposite of freedom—is a publicly-traded corporation. How much is your stock worth?

The guards bring in three women shackled together, a little girl jumping up and waving to her mother who does her best to wave back through the chains. After 30 minutes or so, they call Joe and we walk up to the front row. I can see him getting nervous, so whisper: “Shit lightning, crap thunder…”

He looks back at me, nods his head, then plants himself at the podium, opens his briefcase and before the DA can even get started, says: “Your Judge, I would like to make a motion.”

I get some vague recollection of a Dickens novel. I don’t know why, maybe poor houses, debtor prisons, jails…The DA, a young guy wearing his eyeglasses down toward the tip of his nose—trying to appear authoritative—glances over at Joe, then quickly fumbles through his case file. I can see by the thinness of the folder that there’s hardly anything there. Maybe a police report and a booking slip. “Your Honor,” he says in an arrogantly droney voice. “Ahem, we aren’t, of course, set here for motion practice.”

“I’m ready to go, Judge,” Joe says. “I don’t need any practice.”

Sporadic laughter in the courtroom. The bailiff scans the crowd with a stern look on his face, searching for the culprits. The judge, a middle-aged woman with bags under her eyes, doesn’t bang her gavel and motions for the DA to go on.

“The detailed report here clearly states,” drones the DA. “Yes, clearly, and duly satisfying all requirements as pertaining to probable cause, that the police officer discovered defendant in possession of a quantity of marijuana at approximately…”

“402 and 403, judge. Rules 402 and 403.”

They both look at Joe like he’s nuts, but whether he’s nuts as in mentally ill or crazy like a fox, is a question that’s up for grabs. I know that they’re used to people saying things out of context that make no sense, but things out of context that make no sense from the Federal Rules of Evidence, not so much. “Ahem, you may want to explain to defendant, Your Honor,” says the DA in an almost comically condescending tone. “That we have pre-trial hearings for motions and procedural requirements with regard to evidentiary matters….And as you may wish to further explain to defendant, Your Honor…” This guy keeps up like this and they’re going to hang his oil portrait in the hall back with all the other gay porn stars. “That not following evidentiary procedure, ahem, can result in automatic admissal of the evidence, which one would assume is the opposite of what defendant is apparently trying to achieve, one would guess.”

“I got it,” says Joe. “And now I want to make a Motion to Suppress.”

“What?” says the DA.

“This egregious violation of the Fourth Amendment merits suppression.”

He immediately turns back to Joe’s case file, looking for what I know is a long prison record—for the only people who talk about egregious violations of the Fourth Amendment besides lawyers, are jailhouse lawyers. Other than the usual minor scraps, however, there’s nothing there, so that Joe appears to him as something more unsettling than a long-term criminal: a regular guy who refuses to be pushed around. “Your Honor,” the DA says in a much less condescending tone. “Not even sure as to, uh, what the defendant is referring to with regard to this, yes, uh, alleged violation of the Fourth Amendment. Perhaps you should advise Mr. Winston here that he should seriously consider retaining counsel.”

“I have a pro se right to defend myself, Judge.”

“Indeed you do, sir,” says the Judge.

“And a jury trial, Judge. I have a right to a jury trial.”

I detect a slight smile on her face. There are two kinds of judges at this level: ex-cops that basically rubber stamp for The State and social workers who thought they could do some good from the bench. I have a feeling that she’s the latter.

“Your Honor,” says the DA, trying to regain the momentum “The People have in fact offered a plea.”

I could never stand it when the DA’s referred to themselves as The People. The people aren’t interested in prosecuting a guy who works at Target for a bag of weed. The People could care less. It’s the biggest lie going today: power representing itself as the people and the people buying into it.

“I’m not going to take a plea, Judge.”

Right on, Giants’ fan. Stay the course.

The Judge turns to the DA: “What does The State want to do?”

She’s definitely the social-worker type.

“As clearly stated,” the DA clearly states. “The People would be, uh, willing to consider a reduced fine in this case.”

She turns back to Joe. I think that I can see her rooting for him. It can’t be easy sitting there day in, day out, watching people get ground down. I look over at Joe. This is where a lot of people crack. They’re afraid to rattle that cage, push things too far. But he’s a soldier: a man who has been trained to fight.

“No, I can’t do it,” he says. “I was just standing there waiting for the train, that’s all. I didn’t do anything wrong. I had a right to be there.”

I look at the Judge and see it in her eyes: Good for you.

The DA turns to him. He needs the material to be easily processed. It has to for the factory to work. “Uh, yes, the uh, The People are not simply going to, uh, dismiss a charge for possession of marijuana,” he says, turning and speaking to Joe. “The arresting officer seized it out of your backpack. It was in your possession,” and then turns back to the Judge. “And despite what may be happening in other jurisdictions, marijuana remains a controlled substance here…”

One of the few real bright spots these days in the land of the free, home of the brave…Pull the trigger, Giants’ fan. Pull the trigger…

Apprendi,” Joe says calmly. “If you want to go that route, then we’ll have to go Apprendi.”

The DA looks at him incredulously: “Apprendi?”

Apprendi?” asks the judge.

“Wha?” mouths the bailiff.

“That’s right, Apprendi,” Joe says again “It means that I have a right to have a jury look at everything that I could get busted for.”

Damn, couldn’t have said it better myself.

I watch the DA glance at the mountainous stack of case folders on his desk...If he doesn’t keep moving, then the assembly line will back up and the factory will shut down. “I’m, uh, not really seeing much of a record here, Your Honor. Yes, that’s right. So, uh, yes, while we can’t, of course, ahem, dismiss, obviously, we would be willing to accept probation before judgment.”

Joe looks back at me and I nod my head: it means that if he keeps his nose clean for the next six months, then it’ll be like it never happened. And that’s it: cool and exciting for us, but in the bigger picture, not even on the radar screen. It’s like one hamburger not being processed at McDonald’s today. If that. As Joe goes over to the clerk to get his walking papers, they call a girl in her 20s that’s been ripped apart by meth. She’s got gang tattoos all over her neck and upper chest. A beaten human being, about to be beat down some more. I get up and walk to the back of the courtroom. I have such mixed feelings about this place. On one hand, it’s sad, oppressive, and I hate it. On the other hand, it’s where I’ve done some of the best work of my life. I once had a series of cases where the police were driving sports cars into inner-city neighborhoods, leaving them unlocked with the keys in the ignition, then arresting the kids for auto theft when they would get in the cars and turn them on. Despite the judge rolling his eyes and the DA pretty much telling me to shut up, I went on a 30-minute tirade about how poor kids are faced with enough challenges and temptations without the cops intentionally going out of their way to trick them into breaking the law. I went home that night and wrote an op ed piece for the newspaper imagining the public outcry if the police drove Lamborghinis into wealthy neighborhoods and left them there for affluent kids to find. The idea of college admissions being ruined and profitable futures being crippled by felony records didn’t go over so well with the well-to-do. Calls were made, emails written and the police stopped the practice. A monkey wrench was thrown into the machine on that one. Stopped the assembly line for a little bit.

But not really.

Joe returns like the canary who ate the cat. “Can you believe it?”

“You were amazing, man,” I say, shaking his hand. “I couldn’t have done it any better myself. Now let’s get the hell out of here before they change their minds.”

We go past the long roll of signatures generally supporting the police department, then the revered and august men of law staring at us like we got away with something—we did, bitchesthen get into the elevator and go down to the first floor. We get back outside the courthouse and celebrate the win.

“We did it!” he says.

“It was all you, man.”

“You hear me throw out Apprendi?”

“Like a champ,” I say.

“The 402 and the 403…”

“A regular Arthur Kinoy.”

“I think the judge liked me.”


“It was great,” he says.

“Absolutely,” I say.

“So what do you got going?”

“I guess I’m heading back to the apartment,” I say.

There’s an awkward silence between us.

“Yo, I would give you a ride back,” he says. “But I’m meeting my pals and it’s the opposite way.”

“Go have fun, man. You earned it.”

“Alright cool,” he says, already moving toward the parking lot. “You’re a great lawyer, man.”

“So are you.”

“I’ll catch you around Target,” he says. “They got the new Fight Night.”

“Sounds good, man.”

I watch him disappear into the parking lot, then pull out my cell to call Rachel to tell her about it, but then remember that she won’t be up for another four hours. We used to share our lives as they happened, but we’re not on the same page anymore. She works. I’m unemployed. We’ve always given each other a lot of space, but there’s a difference between choosing to give each other space and being separated by work and schedules, or lack thereof. Either way, I miss her. It would be nice to talk to her right now, have her say she’s proud of me. In another time, she probably would have even met me down here. We would have sat on the steps together and had a coffee, talked about interesting things. It’s like one day I woke up and my life was a few degrees colder. Lonelier. Disconnected. I start walking back toward the bus stop and come into a group of attorneys. They’re all laughing, talking, in the flow of a good workday. For a moment, I almost feel like I’m one of them, but then they pass by me and the moment fades…I turn and watch them disappear into the courthouse, then lower my head and walk away.


The Brooklyn Rail

FEB 2011

All Issues