On a hot August night last summer in the South Bronx, David M. was walking toward the front door of his friend Dee’s high-rise public-housing building. As he approached the door, he saw an NYPD paddy wagon stationed on the corner and a police officer starting to climb out. So David thought better of it and decided not to visit Dee, to just keep walking.
Then he heard footsteps behind him. Soon his face was pressed against the wall of Dee’s building, with his jeans pulled down to his ankles and his T-shirt pushed into his armpits as gloved hands ran over his body. The police officer kept shouting at him to give up the stash, and David kept insisting he didn’t have anything.
Twenty minutes later, David was shirtless, chained to a few other people in the back of the paddy wagon, and charged with trespassing. He spent the next four hours in the back of the sweltering NYPD meat wagon as police rounded up other young men for trespassing.
David eventually became my client, but there is nothing unusual about his story. Every attorney in my office has had dozens of similar cases. David’s story is unique in one way: He is fighting it. Unlike virtually all of my clients, he wasn’t worn down by the methodical torture of Bronx Criminal Justice and taking a guilty plea.
Before coming to the Bronx Defenders (where I am a staff attorney), I had never had a misdemeanor case, and rare was the client I was certain was innocent. In the Bronx, well over half of my cases are misdemeanors, and I have had a disgraceful number of innocent clients, many of whom plead guilty to a trespassing charge, either in a “Clean Halls” building or a New York City Public Housing building. “Operation Clean Halls” allows the NYPD to stop, search, question, and arrest anyone in or even near the building in an action called a “vertical.” Clean Halls has been touted as a tool for keeping drugs and drug dealing out of low-income housing, but once a landlord signs a Clean Halls affidavit, no one can leave their home without their papers.
Trespassing arrests are up a staggering 25 percent since 2002—and this is no crime wave, no trespassing epidemic. The Clean Halls program is a major component of “Operation Impact,” which was launched by the NYPD in 2003 and targets neighborhoods like the one David grew up in by flooding them with rookie police officers trying to make as many arrests as possible. In the 28-month period following the launch of the operation, 72,000 arrests were made in the targeted areas.
I have handled more trespassing cases than any other single criminal charge, and I’ve never had one actually go to trial. That was unheard of. But the D.A. had offered a ridiculous deal—seven days of community service and five for social service—and when David refused, off to trial we went.
I was scared. A conviction would mean that David, at 18 years old, would have a lifelong criminal record (there is no expungement procedure in New York); his DNA would be taken and forever stored in the state criminal database; and $210 in fees would be assessed—maybe even more jail time.
Now, in the elevator up to the courtroom, we prepped for trial. I read part of the complaint out loud: When asked who he was visiting in the building, the defendant failed to provide a name or apartment number and stated that he was there to purchase drugs, to wit: marijuana.
David clasped his hands over his head as if he were handcuffed and exhaled at the ceiling in an incredulous rage. I had seen that same absurd statement attributed to my clients many times before, a routine, boilerplate lie.
Justice Phyllis Bamberger, a veteran judge in another trespassing case: “This Court does not credit testimony that the defendant disclosed to a person wearing a badge that he was going to buy marijuana . . . [that] makes no sense.” Indeed.
David grabbed my arm when the cop walked into the courtroom.
“That’s not the cop who arrested me!” he hissed. “That motherfucker wasn’t even there! I remember him. He was driving the paddy wagon; he never got out of the car.”
The cop, who had sworn out the criminal complaint, was a year out of the Police Academy. He began his testimony by reciting his absolute authority over anyone he encountered while performing a vertical.
The cop reported that he had observed “the perpetrator” in the lobby of the building “loitering.” He went on to claim that he had questioned David as to his purpose and “he admitted he was in the building to buy marijuana from a chubby guy with a Chevy truck.”
This was how the criminal-justice system looked to David. It was a farce: Cops made stories up and the assistant district attorney—who had obviously done no independent investigation and never even questioned his witness—did the rest.
I asked the cop to describe exactly where he’d been when he first observed David. He answered that he had been parked on a nearby corner, about a block from the building, rather than inside the building in the midst of a vertical, as he had testified on direct examination.
Next I asked him how David had entered the high-rise, and he claimed that he had slipped in behind a woman with a key. When I asked what had initially attracted his attention to David, the officer began to dig himself a hole. But he charged recklessly on, throwing in, almost casually, that he believed David was going to rob or assault the woman once inside the building.
“What made you think so?” I asked.
“Because, counselor,” he smirked at me, “your client stalked that woman for nearly a block.”
“You watched my client prepare to commit a violent crime . . . and you waited to exit your vehicle until my client had already gotten inside the building?”
“It happened very fast, counselor.”
He then balked when I pointed out the first door is unlocked and didn’t require a key.
“How was it that the woman had used a key for the first door?”
“She had her key out, counselor.”
“David was alone when you observed him in the lobby?”
“And you arrested him in the lobby?”
“How did you get into the lobby?”
“I walked in.”
“So the door was open?”
“Ummm . . . yes, I believe so. I don’t remember.”
The judge looked over his glasses at the cop and changed expression for the first time. I could see David shaking his head in disgust.
The D.A. stood by his cop, arguing in his closing statement that he had observed my client trespassing in the lobby of a Clean Halls building and that any minor inconsistencies were irrelevant to the trespassing charge. My arguments were to the contrary: The officer’s testimony on direct examination, I argued, bore no resemblance to his testimony on cross-examination, which, in turn, bore no resemblance to the criminal complaint he swore out.
The judge acquitted David, reasoning that if he had been in the building to visit a specific individual, he had not been trespassing, even if he had been there for an illegal purpose. (Odd, if defensible, logic. My guess is that the judge was reluctant, as most judges are, to call any cop a liar.)
I was elated, but David didn’t feel vindicated—he was disgusted. The entire process left him feeling only bitterness. He had been falsely arrested for “trespassing” in his own backyard, like so many others before him.
Like so many others right now.
Fabricant is the author of Busted! Drug War Survival Skills (HarperCollins, 2005).