- Career Counsel
The Legal Career of John O'Connell Lawyer at the Legal Aid Society for the poor
O'Connell will encourage his clients to plead guilty if he's convinced that a guilty plea will shorten an inevitable prison sentence; then he'll have to listen to his clients accuse him of bad faith. "One of the enduring myths of Rikers is that we get $50 for every plea," he says, pursing his lips and raising his eyebrows. It's a gesture he makes whenever he is amused, or exasperated, or, as is often the case, both.
He will encourage other clients to go to trial rather than accept a plea bargain. "If you've been arrested three times in the past year for misdemeanor drug possession, they put an Operation Spotlight stamp on your case file now. And instead of the old offers of five to ten days, it's two to three months or more. So you say, 'Fuck it, forget that, let's fight it. Let's go to trial.' We're not getting offers as good as we used to, so we litigate them."
Judges will yell at him, which he doesn't take personally. "If you haven't gotten yelled at in a while, you're being too cooperative. Plus, it's great for your client to see you fighting for him. You won't win the fight, but it gives him a sense of dignity to see some white guy in a suit fighting for him."
Prosecutors will deceive him, which he resents but has learned to live with. "A lot of district attorneys do things so unethical so often-withholding documents, for example," he says. "I'd be disbarred if I tried the same thing once. But there's a double standard. There's this presumption that, well, 'We're the people, we're on the right side, so it's okay.' " Pursed lips, raised eyebrows.
Before he is yelled at or deceived, though, before he pleads and files and argues and requests, he must do something else, something he spends an inordinate amount of time doing. He must wait.
Today, he waits in AR-1, an arraignment room at 100 Centre Street, the criminal courthouse in downtown Manhattan. At the Legal Aid Society, where O'Connell is a staff attorney in the criminal defense division, lawyers wait all the time. They wait for clients, for judges, for cases to be called. (A colleague of O'Connell's once spent three hours waiting for a 30-second hearing; today, as she waits next to O'Connell, she writes Christmas cards.)
O'Connell is waiting for a client. The man has been charged with criminal contempt for violating a 0court order that prohibits him from having contact with his wife, whom he'd been accused of assaulting. O'Connell will handle five arraignments today, including that of a woman who is already on probation for drug possession and robbery and now faces charges of "forcible touching." "It's a bad scene between her and her lesbian lover and her lesbian lover's husband, who just got released from jail, and the husband doesn't like my client, so his daughter accused her of grabbing her ass," says O'Connell. He'll also represent a subway-fare beater with a parole violation for grand larceny.
But first, he needs to talk to the wife beater. O'Connell had been told that the man would be ready. Instead, he waits. A court officer approaches O'Connell and whispers something to him. A few minutes later, O'Connell walks out of the courtroom. "Our guy pissed off a corrections officer," he says. "He spit on him. So the officer put him downstairs.
"This guy"-the spitter-"might very well qualify for 'hump' status. A hump is a difficult client. A difficult client is called a hump in various degrees. They range from simple hump to superhump."
A hump can be sullen, or uncooperative, or shocked that anyone would accuse him of anything as untoward as assault, or attempted murder, or theft, or selling crack cocaine. Or he can be combative. Or he can spit. Or a combination of things-a superhump.
"Someone with a long record who won't take a plea. They're the most challenging," says O'Connell. "But in a way, they're the most fun too."
The Legal Aid Society is the nation's oldest and largest provider of legal services to the poor, representing more than 300,000 clients in New York City's five boroughs (it calls itself the Legal Aid Society rather than the Legal Aid Society of New York City because it was the first; most major metropolitan areas have similar organizations). The group has an annual budget of $135 million, and employs some 900 lawyers and 750 support personnel, including social workers, investigators, and paralegals.
Incorporated in 1876 as Der Deutscher Rechts-Schutz Verein (the German Legal Aid Society), the group first dedicated itself to defending the rights of German immigrants who could not afford an attorney. The organization gradually began to assist other immigrants and was renamed in 1896 as the Legal Aid Society. Today its mission is to help all poor New Yorkers in need of legal assistance. The organization has counted as its members Henry Ward Beecher, Joseph H. Choate, and Theodore Roosevelt. Its earliest and most generous backers included the Rockefeller family and Andrew Carnegie.
Today the society does the bulk of its work in three practice areas-civil, juvenile, and criminal. The civil practice, the society's oldest, helps poor people in matters ranging from eviction and immigration to access to health care. The juvenile practice, founded in 1962, represents 40,000 children (90 percent of all cases that appear before the Family Court in New York City), in matters ranging from child abuse and neglect to juvenile delinquency. The criminal defense practice, where O'Connell works, includes the Special Litigation Unit (which undertakes major law reform and class-action litigation), the Prisoners' Rights Project (which advocates for humane conditions for those locked away), and the Capital Division (which focuses exclusively on capital punishment and death penalty cases). More than 600 of the society's 900 lawyers work in the criminal practice, representing the more than 200,000 poor New Yorkers charged with crimes every year. It's estimated that eight out of every ten private criminal defense attorneys working in New York City were once employed at Legal Aid.
The opportunity for immediate and intense trial experience is one reason law students want to work at Legal Aid. "We get applicants from all over the country, and many of them share the same characteristics," says Susan Hendricks, the society's deputy attorney in charge of the criminal defense practice. "They apply because they're committed to working with poor people, they like a challenge, or they want to make a difference in either the justice system or people's lives. And, of course, a lot of people like being on their feet in the courtroom. They like the client contact, and they like a very energetic practice."
O'Connell applied for his job during the summer between his first and second years at Vermont Law School. He already had a degree in psychology from Kenyon College; a year on a commune in the "boot heel" of Missouri, where he worked in the garden and made peanut butter ("I had a girlfriend whose sister lived there, so we went"); and a master's degree in environmental science from Brown University.
He was interning for the Environmental Protection Agency (EPA), in its office of regional counsel, air division, located in downtown Manhattan. O'Connell would often meet a cousin of his, an assistant district attorney, for lunch, and afterward he'd sometimes wander over to the courthouse to watch his cousin work and to observe the criminal justice system grind away. "It looked like fun," O'Connell says.
The more time he logged at the EPA, "bored out of my mind," the more fun it looked. He remembers the moment he decided to apply for a Legal Aid position: "I was writing a memo on a batch degreaser and solvents, and then I realized it was an industrial dishwasher."
After a long, difficult interview process that involved making mock opening statements and enduring what he calls the "pit bull" interview, in which he was attacked and forced to defend his position, he and seven other new lawyers started at the Legal Aid Society on September 10, 2001, in an office across the street from the World Trade Center. "Our second day of work was September 11. Not one of us didn't show up."
Those lucky enough to be accepted by the society (one in thirty applicants, on average) earn a starting salary of $41,200. Technically, a Legal Aid lawyer works a 35-hour week, but as one of O'Connell's colleagues says, "we usually hit 35 hours before lunch on Thursday." After 25 years, a Legal Aid lawyer can make $86,000, or, as Hendricks points out, still "less than what a first-year at a big firm makes."
Financial concerns affect not just the society's lawyers but the institution itself, never more so than during the past decade. After Legal Aid lawyers went on strike in 1994 to demand pay parity with district attorneys, then mayor Rudy Giuliani cut $25 million from the group's budget and created new criminal defense organizations as an alternative to the society. That action, says Hendricks, resulted in "massive attrition" and a "devastating effect on Legal Aid." It also resulted in the society's being unable to hire any but a handful of new lawyers each year (O'Connell was one of them).
Last fall, though, Mayor Michael Bloomberg gave Legal Aid a new contract with a 14 percent increase and re-established the society as the primary public defender for New York, mandating that it handle almost 90 percent of all indigent criminal cases occurring in the city.
"For the first time in eight years, we're hiring and training large groups of people," says Hendricks. Instead of adding just eight new lawyers a year-as it was doing when it hired O'Connell-the society brought in 95 lawyers this fiscal year. Twenty one of them are "laterals," or lawyers who have worked at other places; 74 are freshly minted law school graduates.
ohn O'Connell is five foot ten and broad-shouldered, but absent sharp angles and hard edges. His face is round and unlined. He has soft, hazel eyes and the beginnings of a double chin. He describes himself as "balding," but thinning would be more accurate. He wears his brown hair on the long side on top, and neat, but not too neat, on the sides.
Three days a week, O'Connell, like many of his colleagues, wears jeans and sweaters to the office, where, in another practice common among Legal Aid lawyers, he keeps a few suits hanging on the back of his door, along with five ties: one yellow, one green, one blue, two red-none, by anyone's definition, flashy. The first day I watch him work, he wears a white oxford button-down shirt, a blue pinstriped suit, and brown wing tips with frayed shoelaces. The second day he wears a blue oxford button-down shirt, a blue suit, and black wing tips which belonged to a bachelor uncle, a doctor, who died in 1992. He owns five pairs of wing tips. "I like wing tips. I don't know why."
His desk is cluttered but not messy. Case folders cover most of the surface, along with an open can of Diet Coke. On the shelves are more case files and phone books from the city's five boroughs, as well as Common Ground, the Pulitzer Prize-winning book about the desegregation of Boston's public schools, and a bottle of Fantastik. Underneath the desk is a pair of black wing tips that don't belong to him; they were there when he moved into the office.
He is dyslexic and says he "is always screwing up numbers," which is both impressive and a little disconcerting given that, when arguing before judges, he rattles off dates and times and intervals between arrest and arraignment and arraignment and trial with preternatural precision and confidence. A defendant is entitled to be arraigned within 24 hours of his arrest, and he is entitled to a trial within 90 days of the arrest. Failure by prosecutors to do either is grounds for dismissal of charges. Consequently, O'Connell says, "a lot of what we do is litigate and posture so [the prosecutors] run out of time."
Even when a defendant is convicted, a head for numbers helps. "The faster you can do the jail calculations and sentencing determinations in your head-what's mandatory, what's concurrent, how do weekends and holidays figure in-the better it is for your client. The DA will ask for 30 days, you ask for 10; the judge can write down 10 days, but my guy gets out after just a few days if I do a good job of figuring holidays and weekends and how long he's been held already and what counts as time served. That's not law, that's knowing the game."
I ask if he ever worries about putting dangerous people on the street. "Your worst fear," he says, "is you represent a misdemeanor, and later, the same person commits a felony, and the lawyer handling the felony looks at the file and you screwed up somehow on the misdemeanor."
Screwed up by freeing a guilty person?
"I don't care about guilt," he says. "I don't care if my guy shot the other guy in the head, in cold blood. It doesn't matter. I care about representing my client to the very best of my ability. That's my job."
O'Connell handles arraignments in criminal court three or four times a month. Most of his clients are charged with misdemeanors or low-level felonies-D's and E's on a scale that ranks murder as an A-1 felony. "We call the E's 'Easy E's' because a first arrest on an E felony is a minimum of one and a half to three years, so they're good to try, because what are you gonna lose? What I mean is, the guy's going away for one and a half years anyway, without a trial. So if a lawyer goes to trial and loses, he's probably not gonna get much worse than that."
O'Connell is waiting, again, in AR-1. He looks around, taking in the 35 defendants on the wooden benches in the front of the courtroom, slumped, talking, sobbing, staring. In front of them, in the "well," a judge sits above assistant district attorneys (like O'Connell, they're relative novices) and court officers and lawyers with cases on the docket and corrections officers and police officers. Officers chat with other officers. Lawyers ask the clerk questions-often, when their case might be called. The court clerk talks on his telephone. The people sitting on the benches continue to stare and sob and talk.
Even from the first row of the gallery, which is reserved for lawyers and police officers, it is difficult to follow what is going on in the well, to make sense of the charges and questions and arguments exchanged among the judge, the attorneys, and the court officers.
To a visitor, the scene resembles nothing so much as a seventh-grade classroom with badly dressed, oversize, sleep-deprived, behaviorally challenged, and criminally inclined students. It's chaos, barely controlled.
Here is some of what I manage to pick up in 40 minutes:
Assistant DA: "Crack cocaine, intent to sell, the arresting officer made eye contact with the defendant . . ."
Judge: "Parole violation, no community ties . . ."
Court Officer: "Quiet!"
Assistant DA: "Defendant has extensive criminal history, over 75 misdemeanors . . ."
Judge: "Approximately eight aliases, absolutely no regard for the criminal justice system . . ."
Court Officer: "Quiet down! Face the bench!"
Defense Attorney: "He's been working for the past two years, your honor . . ."
Court Officer: "Quiet! You, in the back! This is the last time I'm telling you. No talking. Next time I see you talking you're going outside . . ."
Assistant DA (reading from the transcript of a recorded phone message): " 'You're a stupid bitch. I will beat your fucking ass up. . . . Don't play with me. You had better call me up or I'm going to come down there and fuck you up. . . .' "
Court Officer: "I need quiet in the well. Sir, take the beige hat off!"
Defense Attorney: "He works, your honor, and he lives with his mother, and from the record, I can't tell . . ."
Judge: "Quiet down. Please."
Despite the madness, a Legal Aid lawyer can not only follow the action in the well but can also see things an untrained observer won't. Labor unrest and weather patterns, for example.
"There's not a lot of bullshit today," O'Connell says. "There aren't a lot of trespasses and fare beaters and crack stems and public urination. My guess is with the [then] threatened transit strike, the cops were on the street doing traffic duty, and they were probably told 'Don't make a lot of those arrests.' "
When cops want to make a lot of arrests, though, it's easy, O'Connell says. "They go into a drug house, everyone with drugs is arrested for possession, and everyone else is arrested for public urination. Or they stop the city bus to Ward's Island. There's only one reason people get on the bus to Ward's Island, and that's to go to the homeless shelter there. So the cops stop the bus, knowing that almost everyone on it has a warrant out or has contraband or drugs, and they arrest people." He raises his eyebrows, purses his lips.
"You can always go after homeless people. They have warrants for something. Sleeping in doorways, vagrancy. Something. If there's a blizzard or a transit strike, though, there's none of the bullshit."
Legal Aid lawyers, O'Connell says, learn to recognize the crime just from the defendant or even from the name. "If it's someone from Senegal or Ghana-someone West African-[the crime is] unlicensed general vending. If it's a 60-year-old Chinese lady who's been in this country for a year, someone from the trademark squad on Canal Street got her and she has no idea what's going on. These people generally get screwed because they don't speak English.
"Eighty-five percent of people-no, 95 percent-who come through criminal court, where misdemeanors are adjudicated, don't have money," he says. "Most people who get arrested are poor. Except for domestic assaults and DWIs-everybody does that. And soliciting a prostitute . . . Only when you get up into the big felonies does it seem more egalitarian in terms of status and class."
One of O'Connell's clients today is a 43-year-old Dominican who was stopped by police, who found cocaine residue in a bag in his car. He then refused to take a Breathalyzer test. O'Connell is confident he can get the man released on his own recognizance, without bail. The man has a job, no record, he's in his 40's, and he said the drugs belonged to some musicians who were in the car with him. Plus, the judge has worked in Part SA (where substance abuse and DWI cases are heard), "so she knows the weight of a case. This guy will be out," says O'Connell.
He is not so sanguine about another client's chances. "He's drinking a bottle of Blackberry on 78th and Broadway, and a sergeant goes up to him. And there's another cop with him-a sergeant never approaches someone alone-and our guy runs, and one of the cops falls down chasing him and hurts his knee. So [my client is] resisting arrest; he gives a fake name when he's caught, which means 'false presentation.' And unfortunately, there's a parole warrant out for him."
O'Connell doesn't know yet exactly what the parole violation entails, but he knows it doesn't look good for his client. "He's gonna do more on the parole violation than on this bullshit where a cop fell: Cops are always falling down and hurting their knees and going on disability. Still, my guy is not going anywhere today."
O'Connell will ask for a dollar bail on the false presentation and resisting arrest charges, then make sure the dollar is not paid. "Look, I know he's going to take a 90-day hit on the parole absconding. This way, with the fictional bail, I make sure he gets credit for the time he's serving, waiting for the misdemeanor charges to be worked out. Plus, this way we can keep him downstate near his family. You don't want him doing time upstate around the holidays, away from his family."
"I learned about dollar bail from my clients. I'd never heard of it. They told me about it."
O'Connell's third client this morning presents a different situation. Very different, and very rare. The man had a few drinks, got in his car, and crashed it into the Christmas tree in Washington Square Park. That he's never been arrested before will help. That he has a job will also help. But mostly what will help, O'Connell says, is "he's white. He's a white New Yorker. Thirty-six, never been arrested. That he's even down here is pretty remarkable."
At 32, O'Connell is slightly older than the other members of his eight-person Legal Aid class, but in worldview, temperament, appetite for confrontation, sympathy for the underdog, and mordant sense of humor, he fits right in.
One of O'Connell's close work friends, Fredo Sta. Ana, often makes a point-when he is walking into a judicial hearing past waiting police officers-of whistling Darth Vader's funereal theme song. Another young Legal Aid lawyer does a dead-on impersonation in a courthouse elevator of a twitchy judge nicknamed "the Evil Cookie," complete with the judge's tics and her signature admonition to attorneys seeking drug treatment for their clients: "I've got a good program for your client. (Twitch, twitch.) "It's called state prison!" Three other Legal Aid lawyers in the elevator chime in on the last two words.
O'Connell wakes at 7 a.m. most days, skips breakfast, and comes straight to the office on the Lexington Avenue express. For lunch he'll eat pad thai for $6.95 at a nearby Thai restaurant or pick up a ham and Swiss for $2.95 at a local deli and take it back to his office, where he unbuttons the top collar of his shirt and rolls up his sleeves past his elbows. Then he eats, writes motions, and returns calls. If he's due back in court in the afternoon, he rebuttons his shirt and rolls his sleeves back down. After work, he has dinner with his girlfriend, whom he met in law school (she recently quit her job as an associate at a large corporate firm; she's looking for work at a nonprofit agency). The couple lives on the Upper East Side with their six-year-old golden retriever. For fun, O'Connell says, "I hang out with my friends, my family, my sister. I walk the dog. I try to leave the city, but you know, that doesn't happen too often."
He doesn't work at Legal Aid for the money, but he's not immune to its charms. "My salary is not a lot in New York City, especially when classmates are making $120,000 and you have law school debt you still owe," he says. "I'd like to make a lot of money, but I don't want to work by the hour, and here, you don't."
"Our friends in the private sector make our salary in their Christmas bonuses," says Sta. Ana over lunch one day.
"But they don't practice law," O'Connell says. "They're secretaries, librarians. At Legal Aid, it's your case. You walk around the projects looking for the complaining witness. You write the motions. You deal with the guy's crying mother.
"I feel a little sorry for the associates at the giant firms," he continues. "They work weeks or months on parsing a document, going over it word by word, and sometimes they don't even understand what the document's about, what the larger issue is they're working on. Here, you have so much responsibility. And you answer only to your clients and your conscience."
The day after the spitting hump, O'Connell helps defend a man accused of attempted murder.
"Basically," O'Connell says, "he and the other guy have been looking at each other funny for four or five years. It's a 'What are you looking at?' 'What are you looking at' kind of situation." (The judge refers to this as "an ongoing dispute.") "The other guy produced a gun, we think, then our guy produced a gun, and he shot the other guy in the face."
O'Connell and the defendant will meet in Part 81, where felonies are tried, along with Thomas Klein, the longtime Legal Aid lawyer who is the chief counsel on the case. Klein has been at Legal Aid for 20 years and trained O'Connell and the rest of his Legal Aid class.
"He only tries 'dead' murder cases," O'Connell says. "Nasty, hard cases, where basically you're just trying to mitigate how long the client goes to jail.
"I don't usually do attempted murder. I do the shit work. But Tom-he's 51 or something-he doesn't want to wander the projects, so I get to do that."
O'Connell is being overly modest. To work at all on a case like this at this stage in his career is a rarity, something of an honor.
O'Connell has wandered the projects for the better part of an afternoon looking for witnesses, visiting the scene of the shooting, attempting-and failing-to talk to the man who was shot in the face. Because he is prohibited from serving as his own witness, O'Connell always takes along someone when he's interviewing witnesses. Sometimes he takes another Legal Aid lawyer, more often a Legal Aid intern. "Interns are great for that," he says. When he visited the projects on Sunday, though, he couldn't find another Legal Aid worker, so he took his girlfriend.
The defendant turned in the gun to the police. He confessed, on videotape. "Are the chances of outright acquittal slim?" O'Connell says. "They're slim to none. There's no chance in hell."
Still, he will do his best. "On the 9-1-1 tape you can hear multiple gunshots, which helps us. And there are shell casings from two guns, but no one's been able to find the other gun." Also from the 9-1-1 tape, "we got from conversations between the cops and the dispatcher the license plate of the guy who took [the victim] to the hospital. We found the owner of the car . . . someone else to talk to." And "fortunately, the guy he shot is not a charmer. Since he got out of the hospital, he's been brought in on a domestic violence charge-a misdemeanor assault."
Klein will argue that the videotaped confession should be suppressed (the judge will reject the argument) and that the testimony of the people who identified the shooter should never have been admitted (the judge promises to think about it). The judge will tell Klein and his client to be back in a month and then set bail at $75,000, which guarantees that the man will remain in jail. "One thousand dollars for our clients is like a million dollars," O'Connell says. "It's not gonna happen."
But before all that, O'Connell will talk with the 28-year-old defendant's grandmother. She has been at the courthouse for more than three hours, since 7:50 this morning, waiting in the bitter cold until the doors opened at eight, and has been sitting in the courtroom, reading Daily Devotions for Seniors, praying, talking with a visitor about her daughter, a drug addict who died of AIDS shortly after giving birth to the defendant, and a granddaughter serving time upstate for dealing drugs. The woman worries about choosing a grandchild to visit in prison over the holidays. "I tried to talk to the other guy in the gunfight," O'Connell tells her in the hallway outside the courtroom. "He's a big, scary dude. He's six foot four, 300 pounds. If he was coming at me, I'd be scared, too." When O'Connell tells her that the man was big and scary, she seems cheered. When he tells her that Klein is working hard on the case, she thanks him and says she loves them both and that she will pray for them.
Then she asks O'Connell to make sure to ask her grandson if he received a money order for $25 from his grandfather and another one for $100 from her.
O'Connell promises to check, then turns to enter the courtroom.
She has one more request.
"Please ask him if he's still reading Psalm 43."
"Okay," says O'Connell. "Sure."
Then, "What's Psalm 43?"
"It asks the Lord to remove our enemies from our sight."
The eyebrows, the lips.
"That's good," O'Connell says. "We could use that."