I was outside the criminal court building the other day, the one that looks like it’s been around since the dawn of time and is bunched amidst nicer looking buildings bordering Chinatown, when I saw a middle-aged, Asian woman on the corner having a very animated conversation with herself, no Bluetooth present.
She was neatly dressed in pressed capri pants, a money pouch around her waist. Her hair was groomed and trimmed stylishly, her hands were clean. Basically she acted like she was a “crazy” person, but not a “homeless” person.
She stood on the street corner right between the Criminal Courthouse and the District Attorney’s Office, One Hogan Place and Centre. I saw police and court officers walking calmly by, seemingly used to her, some even saying “hi,” although she never acknowledged them or stopped her steady stream of conversation.
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Sometimes her voice was loud and angry, shouting in Chinese and pointing, but most of it was just a steady stream of words, unintelligible to me and maybe even to people who spoke Chinese.
I had just come out of a trial where a jury convicted a client of mine for Robbery in the First Degree, a class B violent felony in New York, just one below Murder.
Lenny was charged with going into an ATM lobby one morning, putting his finger in his pocket and telling a woman who’d just made of withdrawal of $200, “Give me your money, I have a gun.”
In her ensuing seconds of confusion, Lenny took the money from her hand and fled. He wasn’t arrested for several years and by that point when the complainant attempted to identify him in a line-up, she couldn’t do it with 100 percent certainty, only 75 percent she said. Reasonable doubt, in my book.
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The problem was, my client had been arrested the day before during a “vertical sweep” in a public housing building (that’s when police start on the top floor and walk down the stairwells looking for vagrants or other intruders). They found my client as they put it, “next to an unlit marijuana cigarette,” and busted him.
He was wearing a distinctive button-down shirt with epaulets and pointy pockets. It turned out to look exactly like the shirt the man who did the ATM robbery was wearing. The arrest photo from the marijuana arrest matched the still photos of the guy in the ATM robbery.
What had seemed like a good case because of no certain identification, had become the deadest case in the world.
The Assistant District Attorney had done her homework. She found that prior arrest photo of Lenny after a lot of hard work and matched it up with the ATM crime. Her case went in without a hitch.
My client, meanwhile, was never in the court room. The jurors never got a chance to match Lenny to the man in the photo. Although he was in jail just two floors up, he couldn’t make it to court. Having been in and out of mental competency for years, when Lenny wasn’t seeing ghosts or the devil, he just could not manage the stress, anxiety and paranoia that being on trial produces for even the sanest of people. So I tried what’s called in the vernacular an empty chair.
Now Lenny’s been convicted of his third violent felony (the prior two followed the same pattern), he will get a jail sentence of 20 years to life. Even though he only wielded a finger, there was no injury, and the loss to the victim was no more than $200, the judge must give him that sentence. Lenny’s what’s called a “mandatory persistent” felon. He’s now 54, and he’s likely to die in jail.
Lenny has fought mental illness his whole life. His mother and uncle committed suicide. He has been hospitalized for mental illness since he was a teenager and has been in and out of drug use and homelessness.
His Aunt Martha, his only living relative, would occasionally call me to check in on him, but in the last six months she had a stroke and never called again. Lenny was one of the most alone people I’d ever met.
I couldn’t help thinking when I saw the Chinese woman on the street right after the trial that had Lenny only had the community support, the family structure, and the network to support him in his mental illness, he might not have ended up committing a series of low-level ATM robberies. He might have found some housing, might have cleaned himself up, and might not be spending the rest of his life behind bars.
Lenny fell through the cracks. Sure, he shouldn’t have been committing crimes, but a life sentence where the judge has no discretion to consider mitigating factors such as Lenny’s history or the severity of the crime, is not right.
Lenny lost the genetic lottery. His brain was wired in a way that most of our brains are not. There was no safety net there to catch him, and he just didn’t have the wherewithal to do it on his own.
So I go back to the Chinese lady. I see her on the corner, groomed, tended to, and, I’m assuming, loved. I imagine her family knows where she is and collects her every night to bring her home to a place where she’ll sleep under a roof, get her daily meals and be kept safe. She’s probably never committed a crime; she’s probably never gone hungry.
Wouldn’t it have been great if Lenny had had that kind of backup.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at [email protected] ortonimessinalaw.com.