by Michael Sarinsky
“Justice? – You get justice in the next world, in this world you have the law,” begins William Gaddis’ A Frolic of His Own, the 1994 National Book Award winner that I have occasion to revisit as I plan a subway route to the Kings County Supreme Court to serve my roughly sexennial jury duty this July. Frolic is Gaddis at his least accessible: five-hundred breathless pages of mostly unattributed dialogue, interspersed with legal opinions excerpted from increasingly burlesque cases. The book’s title is the operative quote from Joel v. Morison, the oft-cited 1834 English High Court case that helped to establish the modern understanding of vicarious liability, a legal doctrine that determines when employers are responsible for the extracurricular activities of their agents. (“The master is only liable where the servant is acting in the course of his employment… [I]f he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.” C & P 501, at 503 (finding defendant employer responsible for his servant’s negligent cart-and-horse accident that fractured plaintiff’s leg, and setting damages at a weren’t-1830s-prices-cute thirty pounds)). As a satire of the labyrinthine American judiciary, you can do much worse than Frolic. Gaddis is as sharp a political critic as he is a humorist. And I don’t know who softened ol’ Merriam and Webster, but “sexennial” doesn’t have nearly the lurid definition you’d want it to.
In 2010, before ever opening Frolic, I argued an appeal in the First Judicial Department of New York State Court’s Appellate Division on behalf of a Belizean immigrant I’ll refer to as Oscar.* I’d been assigned to Oscar’s case through a third-year law-school clinic, and worked in tandem with the tirelessly empathetic lawyers at the Office of the Appellate Defender at their downtown offices. We contended, (I’ll summarize here because, otherwise, how much time’ve you got?), that Oscar’s conviction for assault in the second degree ought to be overturned on account of his counsel’s failure to effectively assist him at trial. That Oscar had admitted on the witness stand to swiping at his accuser with a small paring knife from his silverware set (“I’m not a friendly guy,” he also told the jury) was none of our concern. He was my first client and was sure to be deported if he didn’t win his appeal.
*You know the drill re: names.
On a Tuesday night in the Bronx, not far from the Alexander Hamilton Bridge, Oscar was repeatedly punched in the face and dragged down flights of stairs by his ex’s new boyfriend. The boyfriend broke Oscar’s phone by throwing it out of the stairwell window, and then told Oscar that he needed to “get fucked in prison.” Oscar didn’t fight back. All of this was undisputed, consistent with testimony from both men. The next morning, the boyfriend was hanging out a block from Oscar’s apartment, and the two met as Oscar returned home from breakfast. Their stories diverged at this point, vis-à-vis who initiated the violence, but everyone agreed that Oscar swiped a knife he’d been carrying (for bicycle maintenance, Oscar later claimed – I don’t know) at the boyfriend’s abdomen, causing the kind of gash that irrefutably requires legal investigation.
This is called admitting to the elements of the crime, and it’s going to land you on the wrong side of a guilty verdict if you can’t convince the legal system that your actions were warranted. Yet Oscar’s trial counsel objected to the court impressing upon the jury the legal requirements for a self-defense justification, and so disappeared Oscar’s least congested avenue toward acquittal. He was quickly sentenced to five years of imprisonment. (If any of the terminology here goes ever-so-slightly over your head, keep in mind that it’s already being significantly simplified and then imagine washing up on the country’s shores without so much as a high-school education and, some fifteen years later, being police-escorted to the absolute middle of absolutely nowhere to serve a half-decade term for a Wednesday-morning crime that you still maintain was the surely-not-illegal act of protecting yourself against a violent aggressor.)
Oscar enjoyed writing us letters. His notes displayed a passing familiarity with English spelling, a better grasp of syntax and vocabulary, and a whole lot of heart. He repeated many times that he hoped the truth would reveal itself so that he could be reunited with what remained of his family. He addressed each message: “Dear Sir/Mom.”
Here’s some advice for your next visit to Mohawk Correctional Facility, a medium-security state prison in Oneida County: after you’ve been properly metal-detectored and glared at, head to the cafeteria’s vending machines and buy your client a Coke. A dollar purchases you a ton of goodwill from a convict who hasn’t seen a single family member in two years. Oscar peppered me and my supervisor with legal precedents that purportedly somehow proved his innocence. He explained that he’d refused to plea out because he believed too strongly in his own case. His legally damning self-appraisal aside, he was a friendly guy to me.
I argued the appeal before a panel of five inquisitive judges, just off Madison Avenue. Oscar wasn’t permitted to attend. I don’t remember much of the proceeding, which lasted eight minutes, except for the chief jurist asking me: “So that’s your argument and you’re sticking to it, eh?” After my time expired, the judges wished me well on the Bar Exam, which I’d taken a few months before. As coincidence would have it, the New York State Board of Law Examiners later that afternoon accidentally leaked a list of candidates who’d passed the test. (Server-overwhelming and furious screen-capturing chaos unfolded. It’s a whole other story, really.)
Within hours of arguing the appeal, I was among a growing cadre of young lawyers celebrating our newly-minted titles in an East Village bar, while, in a thirsty cell upstate, Oscar had whatever passes for a normal night in prison. And, three weeks later, the Appellate Division announced that he’d lost his appeal because a justification defense would have had little or no hope of success at trial, and a competent attorney could have concluded that the jury was more likely to return a favorable verdict without being instructed on the legal definition of self-defense.
The last we heard from Oscar was a note of appreciation, in which he thanked us “from the bellows of [his] heart.” For a final time, he addressed us as “Sir/Mom.” I still love that. All the sentiment, none of the tools. The only guy in the room to ever, at any point in the entire process, say something pleasing to the ear.
Oscar found the law in this world. My understanding from the New York State Penal Department’s website is that he was deported back to Belize after serving his sentence. And as the wounds heal, I recognize that there are plentiful reasons for society to imprison the knife-wielders among us, just as there were solid legal arguments for rejecting Oscar’s appeal and expiring his immigration status. But when I show up for jury service at 360 Adams Street at 8:30 a.m. on July 9th, I don’t know how many of them I’ll choose to remember.