Before David Feige became famous, with his book “Indefensible” and his television series, Raising the Bar, he was a real lawyer working for the Bronx Defenders. And that means he represented real defendants. And that means things didn’t always go swell, because that’s how it works when you represent real defendants.
In a decision issued December 18th, one of David’s clients sought to vacate his conviction in a 440.10 motion for ineffective assistance of counsel. The motion, People v. Radcliffe, went before Bronx Justice Richard Lee Price, whose decision is one of the most remarkable I’ve ever seen. Not merely because it involves a lawyer turned celebrity who is accused of ineffective assistance, but because David, who supported his former client’s motion in the finest tradition of the criminal defense lawyer, put into writing one of the deep, dark secrets of the courtroom that is never to be revealed.
A little background is necessary to appreciate the situation. After a hard-fought suppression hearing, with misidentification being fairly clearly raised as the defense to the charge of possession of a weapon and assault, both in the second degree, suppression was denied, but the testimony was clear. According to David Feige, the trial judge, Dominic Massaro, gave him a “slight nod of the head” and said he was “intimately familiar with the vagaries of eyewitness identifications.” David decided to waive a jury and proceed on the hearing record plus some stipulations. The defendant was acquitted of the top count but convicted of the lessers, and sentenced to 15 years.
In the motion to vacate the conviction, the defendant raises the plethora of typical allegations, which are disposed of quickly by Justice Price. He then gets to David’s mea culpa, which he notes have kept him
In a decision issued December 18th, one of David’s clients sought to vacate his conviction in a 440.10 motion for ineffective assistance of counsel. The motion, People v. Radcliffe, went before Bronx Justice Richard Lee Price, whose decision is one of the most remarkable I’ve ever seen. Not merely because it involves a lawyer turned celebrity who is accused of ineffective assistance, but because David, who supported his former client’s motion in the finest tradition of the criminal defense lawyer, put into writing one of the deep, dark secrets of the courtroom that is never to be revealed.
A little background is necessary to appreciate the situation. After a hard-fought suppression hearing, with misidentification being fairly clearly raised as the defense to the charge of possession of a weapon and assault, both in the second degree, suppression was denied, but the testimony was clear. According to David Feige, the trial judge, Dominic Massaro, gave him a “slight nod of the head” and said he was “intimately familiar with the vagaries of eyewitness identifications.” David decided to waive a jury and proceed on the hearing record plus some stipulations. The defendant was acquitted of the top count but convicted of the lessers, and sentenced to 15 years.
In the motion to vacate the conviction, the defendant raises the plethora of typical allegations, which are disposed of quickly by Justice Price. He then gets to David’s mea culpa, which he notes have kept him
awake at night wrought with guilt for having made “the most stunning and appalling decision” of his career.
It’s one thing to lose. It’s another to have given away another human being’s life.
Historically, there are only two reasons why a criminal defense lawyer waives a jury. The first is that his client, or the case, is just so ugly that they fear no jury will be able to overcome their prejudice to render a fair verdict. In that case, a judge, assuming one disinclined to hang the defendant first and try him later, will be more capable of a decision unfettered by bias.
The other alternative is the nod and wink, the old-time contract where the judge would let a lawyer know, subtly, to go non-jury. The deal was that when a judge suggested that a lawyer go non-jury, the judge would acquit. This isn’t corrupt in the sense of a judge being bought, but rather that a judge believed the defendant to deserve an acquittal and wanted to save everyone the time, effort and problem of a crazy jury verdict.
A nod and wink, and an acquittal it would be. This was the deal. It’s not like this was written down anywhere, but it was the unspoken code of the courthouse. Except that David Feige spoke of it, and Justice Price was “shocked”.
Historically, there are only two reasons why a criminal defense lawyer waives a jury. The first is that his client, or the case, is just so ugly that they fear no jury will be able to overcome their prejudice to render a fair verdict. In that case, a judge, assuming one disinclined to hang the defendant first and try him later, will be more capable of a decision unfettered by bias.
The other alternative is the nod and wink, the old-time contract where the judge would let a lawyer know, subtly, to go non-jury. The deal was that when a judge suggested that a lawyer go non-jury, the judge would acquit. This isn’t corrupt in the sense of a judge being bought, but rather that a judge believed the defendant to deserve an acquittal and wanted to save everyone the time, effort and problem of a crazy jury verdict.
A nod and wink, and an acquittal it would be. This was the deal. It’s not like this was written down anywhere, but it was the unspoken code of the courthouse. Except that David Feige spoke of it, and Justice Price was “shocked”.
This court finds it acutely disturbing that after spewing his mea culpas, Mr. Feige implicitly abdicates responsibility to Justice Massaro for the verdict not being what he anticipated. “Had Justice Massaro not done what he did, I would had [sic] proceeded with a trial, as I had throughout my career and as I always intended to do.” Unfortunately, for both Mr. Feige and the defendant, nothing in the record before this court remotely suggests that Justice Massaro assured, promised or guaranteed that he would acquit the defendant. Even Mr. Feige’s characterization that Justice Massaro gave him the “wink” is devoid of any factual support. In fact, as noted above, Mr. Feige based his strategic decision on a dubious head-nod and “unmistakable” look, which does not remotely qualify as a promise or guarantee. To infer that Justice Massaro somehow made false or misleading representations is intellectually dishonest.
David’s allegations are many things, but intellectually dishonest is not one of them. If anything, he’s broken the code of silence about contracts. What’s the point of a nod and wink if everybody knows what they mean? Part of the same deal between judge and defense lawyer is that they not walk down the hallways crowing about how the judge was about to give the defendant a walk. And here was David Feige, putting it in writing in an affirmation, made under penalty of perjury, spelling out the deal for all to see. Could Justice Price allow this to happen without a darn good spanking?
Maybe David misread the signs. Maybe Justice Massaro never meant to suggest that he go non-jury, or on a stipulated record. Maybe the days of the contract are dead, and even old-time judges like Massaro feel no compulsion to honor it. I can’t begin to know where things went so very wrong here. But clearly they did. David’s owning up to this fiasco, falling on the sword, is what one would expect of an honorable criminal defense lawyer. Most, unfortunately, would let their former client fry before admitting mistake.
But Justice Price has issued a decision designed to make one thing abundantly clear. This never happens. This is a fiction, an urban myth. No judge would ever give a criminal defense lawyer a nod and wink. Never. Right.
H/T Andrew Lavoott Bluestone
Maybe David misread the signs. Maybe Justice Massaro never meant to suggest that he go non-jury, or on a stipulated record. Maybe the days of the contract are dead, and even old-time judges like Massaro feel no compulsion to honor it. I can’t begin to know where things went so very wrong here. But clearly they did. David’s owning up to this fiasco, falling on the sword, is what one would expect of an honorable criminal defense lawyer. Most, unfortunately, would let their former client fry before admitting mistake.
Perhaps Mr. Feige does indeed seek redemption for his perceived malpractice or perhaps there are other motivational forces in operation. Neither is of any moment. If, however, Mr. Feige is indeed guilty of the ills he claims to be, then in light of the accomplished author and producer he has become, disbarment, which he curiously appears too eager to accept, seems far from adequate. If, on the other hand, Mr. Feige is simply remorseful for misreading Justice Massaro, such remorse hardly qualifies as error, much less ineffective assistance of counsel; it is merely an unsuccessful defense strategy.It’s hard to understand how the mistaken reading of the nod and wink can be characterized as “merely an unsuccessful defense strategy.” It’s not a strategy, but a contract, and if there was no contract ab initio, then the deal busts all around. Certainly the defendant shouldn’t be the one to pay the price if David misread the nod and wink, having been denied the ability to test his guilt because his lawyer misinterpreted a furtive glance.
But Justice Price has issued a decision designed to make one thing abundantly clear. This never happens. This is a fiction, an urban myth. No judge would ever give a criminal defense lawyer a nod and wink. Never. Right.
H/T Andrew Lavoott Bluestone
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I have been practicing criminal law over 31 years in multiple jurisdictions in Texas. In every one there has always been something akin to this practice. This opinion reveals more about the ethical character of these judges rather than that of Mr. Feige. Mr. Feige’s courageous actions calls to task a system that has been compromised by the disingenuous conduct of these judges.
It is especially disturbing that many who read that opinion who are uneducated regarding the real operation of day to day courtroom procedures will become unknowing perpetrators of the despicable libel committed against an honorable Criminal Defense lawyer. But then why should anything change?
When you say “the ethical character of these judges” and “the disingenuous conduct of these judges,” do you mean the judges who give the nod and the wink, or the judges who deny that such a thing ever happens?
I was referring to the fact that these judges deny this ever happens. Reminds me of the scene in Casablanca where Claude Rains, when shutting down the gambling casino where he had been a participant, saying “I’m SHOCKED, I’m SHOCKED.”
Coincidentally, I’ve only seen one episode of Mr.Feige’s show and it dealt with this same issue. A judge gives him the nod so he waives a jury. This sends up red flags to the evil judge played by Jane Kaczmarek who then extorts the first judge into double crossing Feige’s character and client. Feige gets a sense of what’s going on and on a motion for reconsideration he convinces the first Judge to change his mind back to the original position.
Was he just borrowing a story from real life or was he also using his show to make a plea to Judge Massaro’s better nature?
Justice Price mentioned that episode in his decisions as well, but I have no idea what David was trying to do with that script, if anything, or whether it is connected to this case at all. Maybe he will clarify for us.
It was the same issue – there was a wink and a nod. If I hadn’t “nodded” off, I might remember what happened at the end of the episode…
I found it – I liveblogged the episode (albeit in an incoherent drunken haze).
The set-up of that episode certainly drew from the case, but it was a kind of cathartic re-imagining. Obviously, I spent a lot of time trying to figure out what the hell could have happened for Massarro to have done what he did. Let’s be clear: he gave me the wink, and then convicted my client in a stipulated trial. So the whole plot line about judicial corruption and redemption was drawn from those musings (filtered though the TV writer’s perspective) about what went wrong.
It’s very hard to be on both sides of the fence, and for Price to have been unable to distinguish what was real from what was merely an influence for the script that was otherwise fictional and/or the product of many other experiences. This is one of the dangers of public expression while defending people, and it seems that Price’s mention of the episode suggests that his findings were in some part payback for your inclusion of the judicial corruption facet of the script, though he clearly went far beyond that.
I admire Mr. Feige — both for his book “Indefensible” (which was required reading at the Defender Association of Philadelphia when I was there) and for the way he handled this particular case. While I didn’t read the entire opinion, just the excerpts reprinted above, I think it was pretty disingenuous of the judge to point to the record as providing no evidence that the wink had occurred. I guess Mr. Feige should have said: “Let the record reflect that the judge has just given me a wink and a nod.”
I am a legal aid lawyer and do not do criminal law. However, there are certainly similar “nods and Winks” in that arena and so I certainly believe it happens. Not too many lawyers would risk potential disciplinary action to try to right the wrong. I greatly admire Feige’s courage.