THERE ARE TWO TYPES OF people who become public defenders: those who believe they can save the world, and those who know damn well they can’t. The former are starry-eyed law school grads convinced they can make a difference. The latter are those of us who have worked in the system and know the problems are so much bigger than we are or the clients we represent. Once a bleeding heart calluses into realism, victories become individual ones: being able to reunite a mom who’s gone through rehab with her kid, who was put in foster care; winning a motion to suppress evidence of a former addiction that might color the odds for a current client; being able to juggle hundreds of cases and triage those that need more than a meet ’em and plead ’em. As it turns out, public defenders are less Superman and more Sisyphus, and there’s no small number of lawyers who wind up crushed under the weight of the infinite caseloads and the crappy hours and the shitty pay. To this end, we learn quickly that if we’re going to keep a tiny bit of our lives sacrosanct, we don’t bring our work home with us.
Which is why, when I dream of Ruth Jefferson for two consecutive nights, I know I’m in trouble.
In the first dream, Ruth and I are having an attorney-client meeting. I ask her the standard set of questions I’d ask of any client, but every time she speaks, it is in a language I don’t understand. It’s not even a language I recognize. Embarrassed, I have to keep asking her to repeat herself. Finally she opens her mouth, and a flock of blue butterflies pours out.
The second night I dream that Ruth has invited me over to dinner. It is the most sumptuous table, with enough food for a football team, and each dish is more delicious than the last. I drink one glass of water, and then another, and a third, and the pitcher is empty. I ask if I can get a refill, and Ruth looks horrified. “I thought you knew,” she says, and when I glance up I realize that we are locked inside a prison cell.
I wake up, dying of thirst. Rolling onto my side, I reach for the glass of water I keep on my nightstand and take a long, cool drink. I feel Micah’s arm slide around my waist and pull me against him. He kisses my neck; his hand slides up my pajama shirt.
“What would you do if I went to prison?” I blurt out.
Micah’s eyes open. “I’m pretty sure since you’re my wife, and over eighteen, this is legal.”
“No.” I roll to face him. “What if I did something…and got convicted?”
“That’s kind of hot.” Micah grins. “Lawyer in prison. Okay, I’ll play. What did you do? Say public indecency. Please say public indecency.” He pulls me flush against him.
“Seriously. What would happen to Violet? How would you explain it to her?”
“K, is this your way of telling me that you actually, finally did kill your boss?”
“It’s a hypothetical.”
“In that case, could we revisit the question in about fifteen minutes?” His eyes darken, and he kisses me.
WHILE MICAH SHAVES, I try to pin my hair into a bun. “Going to court today?” he asks.
His face is still flushed; so is mine. “This afternoon. How did you know?”
“You don’t stick needles into your head unless you’re going to court.”
“They’re bobby pins, and that’s because I’m trying to look professional,” I say.
“You’re too sexy to look professional.”
I laugh. “Let’s hope my clients don’t feel the same way.” I spear a flyaway hair into submission and lean my hip against the sink. “I’m thinking of asking Harry to give me a felony.”
“Great idea,” Micah says with mild sarcasm. “I mean, since you already have five hundred open cases, you should definitely take on one that requires even more time and energy.”
It’s true. Being a public defender means I have nearly ten times as many cases as are recommended by the ABA, and that, on average, I have less than an hour to prepare each case that goes to trial. Most of the time I am working, I do not eat lunch, or take a bathroom break.
“If it makes you feel any better, he probably won’t give it to me.”
Micah clatters his razor against the porcelain. When we were first married, I used to stare at the tiny hairs that dried in the bowl of the sink with wonder, thinking that I might read in them our future the way a psychic would read tea leaves. “Does this sudden ambition have anything to do with the question about you going to prison?”
“Maybe?” I admit.
“Well, I’d much rather you take his case than join him behind bars.”
“Her,” I correct. “It’s Ruth Jefferson. That nurse. I just can’t shake her story.”
Even when a client has done something unlawful, I can find sympathy. I can acknowledge a bad choice was made, but still believe in justice, as long as everyone has equal access to the system—which is exactly why I do what I do.
But with Ruth, there’s something that doesn’t quite add up.
Suddenly Violet comes charging into the bathroom. Micah tightens the towel around his waist, and I tie my robe. “Mommy, Daddy,” she says. “Today I match Minnie.”
She clutches a stuffed Minnie Mouse, and indeed, she has managed to pull on a polka-dotted skirt, yellow sneakers, a red bikini top, and long white tea gloves from the dress-up bin. I look at her, wondering how I am going to explain that she can’t wear a bikini to school.
“Minnie’s a fallen woman,” Micah points out. “I mean, it’s been seventy years. Mickey ought to put a ring on it.”
“What’s a fallen woman?” Violet asks.
I kiss Micah. “I’m going to kill you,” I say pleasantly.
“Ah,” he replies. “So that’s why you’re going to prison.”
AT THE OFFICE, we have a television—a tiny screen that sits between the coffee machine and the can opener. It’s a professional necessity, because of the press coverage our clients sometimes get. But in the mornings, before court is even in session, it’s usually tuned to Good Morning America. Ed has an obsession with Lara Spencer’s wardrobe, and to me, George Stephanopoulos is the perfect balance of hard-hitting reporter and eye candy. We sit through a round of hypothetical polls pitting presidential candidates against one another while Howard makes a fresh pot of coffee, and Ed recounts dinner with his in-laws. His mother-in-law still calls him by the name of his wife’s ex, even though they’ve been married for nine years. “So this time,” Ed says, “she asked me how much toilet paper I use.”
“What did you tell her?”
“Just enough,” Ed replies.
“Why did she even want to know?”
“She said they’re trying to cut back,” Ed answered. “That they’re on a fixed income. Mind you, they go to Foxwoods three out of four weekends a month, but now we’re rationing the Charmin?”
“Well, that’s crap,” I say, grinning. “See what I did there?”
Robin Roberts is interviewing a portly, middle-aged redhead whose poem was accepted for a highly literary anthology—but only after he submitted it with a Japanese pseudonym. “It was rejected thirty-five times,” the man says. “So I thought maybe I’d be noticed more if my name was more…”
“Colorful?” Roberts supplies.
Ed snorts. “Slow news day.”
Behind me, Howard drops a spoon. It clatters into the sink.
“Why is this even a thing?” Ed asks.
“Because it’s a lie,” I say. “He’s a white insurance adjuster who co-opted someone else’s culture so he could get fifteen minutes of fame.”
“If that were all it took, wouldn’t hundreds of poems by Japanese poets get published every year? Clearly what he wrote was good. How come no one’s talking about that?”
Harry Blatt, my boss, blusters through the break room, his coat a tornado around his legs. “I hate rain,” he announces. “Why didn’t I move to Arizona?” With that greeting, he grabs a cup of coffee and holes himself up in his office.
I follow him, knocking softly on the closed door.
Harry is still hanging up his drenched coat when I enter. “What?” he asks.
“You remember that case I arraigned—Ruth Jefferson?”
“Prostitution?”
“No, she’s the nurse from Mercy–West Haven. Can I take it?”
He settles behind his desk. “Right. The dead baby.”
When he doesn’t say anything else, I stumble to fill the void. “I’ve been practicing for five years, almost. And I feel really connected to this one. I’d like the opportunity to try it.”
“It’s a murder,” Harry says.
“I know. But I really, really think I’m the right public defender for this case,” I say. “And you’re going to have to give me a felony sooner or later.” I smile. “So I’m suggesting sooner.”
Harry grunts. Which is better than a no. “Well, it would be good to have another go-to lawyer for the big cases. But since you’re a rookie, I’ll have Ed second-chair it with you.”
I’d rather have a Neanderthal sitting at the table with me.
Oh, wait.
“I can do it myself,” I tell Harry. It isn’t until he finally nods that I realize I’ve been holding my breath.
I COUNT THE hours and the arraignments I have to slog through before I’m free to drive to the women’s prison. As I sit in traffic, I run over opening conversations in my mind that will allow Ruth to have confidence in me as her attorney. I may not have tried a murder before, but I’ve done dozens of drug and assault and domestic jury trials. “This isn’t my first rodeo,” I say out loud to the rearview mirror, and then roll my eyes.
“It’s an honor to represent you.”
Nope. Sounds like a publicist meeting Meryl Streep.
I take a deep breath. “Hello,” I try. “I’m Kennedy.”
Ten minutes later, I park, shrug on a mantle of false confidence, and stride into the building. A CO with a belly that makes him look ten months pregnant sizes me up. “Visiting hours are over,” he says.
“I’m here to see my client. Ruth Jefferson?”
The officer scans his computer. “Well, you’re out of luck.”
“I beg your pardon?”
“She was released two days ago,” he says.
My cheeks flame. I can only imagine how stupid I look, losing track of my own client. “Yes! Of course!” I pretend that I knew this all along, that I was only testing him.
I can still hear him snickering as the door of the prison closes behind me.
A COUPLE OF days after I send a formal letter to Ruth’s house—the address of which I have from the bail posting—she comes to the office. I am headed to the copy machine when the door opens and she walks in, nervous and hesitant, as if this cannot possibly be the right place. With the bare bones and the stacks of boxes and paper, we look more like a company that is either setting up shop or closing its doors than a functional legal office.
“Ruth! Hello!” I hold out my hand. “Kennedy McQuarrie,” I say.
“I remember.”
She is taller than I am, and stands with remarkable posture. I think, absently, that my mother would be impressed.
“You got my letter,” I say, the obvious. “I’m glad you’re here, because we’ve got a lot to talk about.” I look around, wondering where I am going to put her. My cubicle is barely big enough for me. The break room is too informal. There’s Harry’s office, but he’s in it. Ed is using the one client meeting room we have to take a deposition. “Would you like to grab a bite? There’s a Panera around the corner. Do you eat…”
“Food?” she finishes. “Yes.”
I pay for her soup and salad, and pick a booth in the back. We talk about the rain, and how we needed it, and when the weather might turn. “Please,” I say, gesturing to her food. “Go ahead.”
I pick up my sandwich and take a bite just as Ruth bows her head and says, “Lord, we thank you for our food, furnishing our bodies for Christ’s sake.”
My mouth is still full as I say Amen.
“So you’re a churchgoer,” I add, after I swallow.
Ruth looks up at me. “Is that a problem?”
“Not at all. In fact, it’s good to know, because it’s something that can help a jury like you.”
For the first time, I really look at Ruth carefully. The last time I saw her, after all, her hair was wrapped and she was wearing a nightgown. Now, she is dressed conservatively in a striped blouse and navy skirt, with shiny patent flats that are rubbed raw in one small spot each at the heels. Her hair is straight, pulled into a knot at the base of her neck. Her skin is lighter than I remember, almost the same color as the coffee milk that my mother used to let me drink when I was little.
Nerves manifest differently in different people. Me, I get talkative. Micah gets pensive. My mother gets snobbish. And Ruth, apparently, gets stiff. Which is something else I file away, because jurors who see that can misinterpret it as anger or haughtiness.
“I know it’s hard,” I say, lowering my voice for privacy, “but I need you to be a hundred percent honest with me. Even though I’m a stranger. I mean, hopefully, I won’t be one for long. But it’s important to realize that nothing you say to me can be used against you. It’s completely client-privileged.”
Ruth puts her fork down carefully, and nods. “All right.”
I take a small notebook out of my purse. “Well, first, do you prefer the term black or African American or people of color?”
Ruth stares at me. “People of color,” she says after a moment.
I write this down. Underline it. “I just want you to feel comfortable. Frankly, I don’t even see color. I mean, the only race that matters is the human one, right?”
Her lips press together tightly.
I clear my throat, breaking the knot of silence. “Remind me again where you went to school?”
“SUNY Plattsburgh, and then Yale Nursing School.”
“Impressive,” I murmur, scribbling this down.
“Ms. McQuarrie,” she says.
“Kennedy.”
“Kennedy…I can’t go back to prison.” Ruth looks into my eyes, and for a moment, I can see right down into the heart of her. “I’ve got my boy, and there’s no one else who can raise him to be the man I know he’s going to be.”
“I know. Listen, I’m going to do my best. I have a lot of experience in cases with people like you.”
That mask freezes her features again. “People like me?”
“People accused of serious crimes,” I explain.
“But I didn’t do anything.”
“I believe you. However, we still have to convince a jury. So we have to go back to the basics to figure out why you’ve been charged.”
“I’d think that’s pretty obvious,” Ruth says quietly. “That baby’s father didn’t want me near his son.”
“The white supremacist? He has nothing to do with your case.”
Ruth blinks. “I don’t understand how that’s possible.”
“He isn’t the one who indicted you. None of that matters.”
She looks at me as if I’m crazy. “But I’m the only nurse of color on the birthing pavilion.”
“To the State, it doesn’t matter if you’re black or white or blue or green. To them, you had a legal duty to take care of an infant under your charge. Just because your boss said don’t touch the baby doesn’t mean you get a free pass to stand there and do nothing.” I lean forward. “The State doesn’t even have to specify what the degree of murder is. They can argue multiple theories—contradictory theories. It’s like shooting fish in a bucket—if they hit any of them, you’re in trouble. If the State can show implied malice because you were so mad at being taken off the baby’s case, and suggest that you premeditated the death, the jury can convict you of murder. Even if we told the jury it was an accident, you’d be admitting to a breach in duty of care and criminal negligence with reckless and wanton disregard for the safety of the baby—you’d basically be giving them negligent homicide on a silver platter. In either of those scenarios, you’re going to prison. And in either of those scenarios it doesn’t matter what color your skin is.”
She draws in her breath. “Do you really believe that if I was white, I’d be sitting here with you right now?”
There is no way you can look at a case that has, at its core, a nurse who is the only employee of color in the department, a white supremacist father, and a knee-jerk decision by a hospital administrator…and not assume that race played a factor.
But.
Any public defender who tells you justice is blind is telling you a big fat lie. Watch the news coverage of trials that have racial overtones, and what will stick out profoundly is the way attorneys and judges and juries go out of their way to say this isn’t about race, even though it clearly is. Any public defender will also tell you that even though the majority of our clients are people of color, you can’t play the race card during a trial.
That’s because it’s sure suicide in a courtroom to bring up race. You don’t know what your jury is thinking. Or can’t be certain of what your judge believes. In fact, the easiest way to lose a case that has a racially motivated incident at its core is to actually call it what it is. Instead, you find something else for the jury to hang their hat on. Some shred of evidence that can clear your client of blame, and allow those twelve men and women to go home still pretending that the world we live in is an equal one.
“No,” I admit. “I believe it’s too risky to bring up in court.” I lean forward. “I’m not saying you weren’t discriminated against, Ruth. I’m saying that this is not the time or place to address it.”
“Then when is?” she asks, her voice hot. “If no one ever talks about race in court, how is anything ever supposed to change?”
I don’t have the answer to that. The wheels of systemic justice are slow; but fortunately, there’s a little more oil in the machinery for personal justice, which throws cash at the victims to remove some of the indignity. “You file a civil lawsuit. I can’t do it for you, but I can call around and find you someone who works with employment discrimination.”
“But I can’t afford a lawyer—”
“They’ll take your case on contingency. They’ll get a third of whatever payout you win,” I explain. “To be honest, with that Post-it note, I think you’d be able to get compensatory damages for the salary you lost, as well as punitive damages for the idiotic decision your employer made.”
Her jaw drops. “You mean I’d get money?”
“I wouldn’t be surprised if it was a couple million,” I admit.
Ruth Jefferson is speechless.
“You’ve got one hundred and eighty days to file an EEOC complaint.”
“And then what?”
“Then, the EEOC will sit on it until the criminal trial is finished.”
“Why?”
“Because assigning a guilty verdict against a plaintiff is significant,” I say frankly. “It will change how your civil lawyer will draw up the complaint for you. A guilty finding is admissible as evidence, and would hurt your civil case.”
She turns this over in her mind. “Which is why you don’t want to talk about discrimination during this trial,” Ruth says. “So that guilty verdict won’t come to pass.” She folds her hands in her lap, silent. She shakes her head once, and then closes her eyes.
“You were kept from doing your job,” I say softly. “Don’t keep me from doing mine.”
Ruth takes a deep breath, opens her eyes, and meets my gaze. “All right,” she says. “What do you want to know?”