III. Former DV Public Defender: Judges are Like ‘Jokers’

By David Feige

[NYC Judge Diane] Kiesel is tall and very thin, with an angular, bony face framed by a severe chin-length haircut. Her hair is processed to the color of curb cement, and she has long, spindly fingers that move impatiently while she presides, sitting imperiously straight in her high-backed chair. There is a pitched intensity to Kiesel; she seems to listen to the proceedings before her with an emotional palate that ranges from disagreeable to sour, the nervous twitching of her Grim Reaper fingers tapping out a constant rhythm of disapproval…

With almost all judges I appear before, I sense a combination of these factors: painful empathy, self-importance, and abject cruelty. In Keisel, though, I only see cruelty.

Kiesel will often refuse to accept pleas that an assistant district attorney recommends, her narrow face twisted into a scowl of disapproval – not harsh enough, she’ll telegraph. She’ll also remand defendants after another judge has released them – and do so on the flimsiest of excuses. It seems crazy that a judge and her politics should have as much of an impact as they do. But judges are like the jokers of the criminal justice case outcome deck…

And when that judge is Diane Kiessel, the outcome is a foregone conclusion. The mere threat of being forced to trial in front of her is enough to transform baseless prosecutions into strong cases, terrible plea offers into enticing deals, and it’s enough to make utterly innocent people plead guilty.

Kiesel is so openly pro prosecution, so astonishingly biased, and so relentlessly nasty that even assistant district attorneys quietly acknowledge it – and they use it, steering almost all of their cases before her toward bench rather than jury trials. When confronted by a touch case, or a recalcitrant witness, they simply “reduce the case.” That is, they cleanly and tactically lower the charges from class A misdemeanors to class B misdemeanors, depriving the defendant of a jury trial but not the possibility of a jail sentence.

Source: David Feige. Indefensible: One Lawyer’s Journey into the Inferno of American Justice. New York: Little, Brown, and Company. 2006. Excerpted from Chapter 10. Reprinted with permission.