The New York Law Journal by Daniel Wise - January 29, 2010
Three years after publishing a book in which he criticized New York City Criminal Court judges as "belligerent" and "spoiled divas," a lawyer-turned-author has become the recipient of harsh words from the bench for his conduct in a proceeding involving a former client. David Feige left the Bronx Defenders to write "Indefensible," a well-reviewed chronicle of his legal career published by Little Brown in June 2006. The book, which is subtitled "One Lawyer's Journey Into the Inferno of the Criminal Justice System," later inspired a TV series called "Raising the Bar." Bronx Justice Richard Lee Price mentioned both Mr. Feige's book and the series in a Dec. 18 decision criticizing the lawyer's ethics and intellectual honesty. In that ruling, the judge rejected an application for post-conviction relief from Troy Radcliffe, who claimed Mr. Feige had provided him with ineffective assistance of counsel. People v. Radcliffe, 3714-2001, was published Jan. 15 on page 27 of the print edition of the Law Journal. In an affidavit supporting Mr. Radcliffe's application, Mr. Feige said he had made the "stunning and appalling mistake" of urging his client to opt for a bench trial before Justice Dominic R. Massaro because he believed the judge would acquit him. Instead, Mr. Radcliffe was convicted and sentenced to 15 years in prison for shooting a livery cab driver. In his book, Mr. Feige insists Mr. Radcliffe, who is identified by the pseudonym Ray Hartford, was "utterly innocent." He recalls that he "made the mistake of trusting Judge Massaro when he told me with a grave nod that he was 'well acquainted with the problems of eyewitness identification.' I believed he was telling me to waive a jury, which is exactly what I insisted on doing. But I erred." Mr. Feige writes in his book, in a passage to which Justice Price alludes, "Not a night goes by that I don't touch that file and think of him, alone in his prison cell." Justice Price scoffed at Mr. Feige's "mea culpas" and purported remorse in his affidavit. He noted that defense attorneys often affirm their own ineffectiveness either to help a former client or to protect their own reputations. The judge "[found] acutely disturbing that after spewing his mea culpas, Mr. Feige implicitly abdicates responsibility to Justice Massaro for the verdict not being what he anticipated. …To infer that Justice Massaro somehow made false and misleading representations is intellectually dishonest." Moreover, the judge suggested that "[i]f Mr. Feige is indeed guilty of that which he claims to be, it would perhaps be far more than ineffective assistance of counsel." In that case, he commented, "disbarment would be far from adequate." But Justice Price said it was "patently absurd to believe that an extraordinarily experienced defense attorney with an admittedly inherent distrust for the judiciary would suddenly unravel into a hideously incompetent advocate merely by the way a judge looked at him." The judge said that nothing in the record "remotely suggests that Justice Massaro assured, promised or guaranteed that he would acquit the defendant." Justice Price concluded that Mr. Feige's regret for misreading Justice Massaro "hardly qualifies as error, much less ineffective assistance of counsel; it is merely unsuccessful defense strategy." Justice Price is not mentioned in Mr. Feige's book, but the author describes Justice Massaro as "one of the most odd and temperamental justices in the Bronx." Justice Massaro declined to comment.
In arguing for the conviction to be overturned, Mr. Radcliffe's current lawyer, Harold V. Ferguson of the Legal Aid Society, had argued that Mr. Feige "attempted to perpetrate a fraud on the criminal justice system" in the mistaken belief that Justice Massaro had agreed to acquit Mr. Radcliffe. The case against Mr. Radcliffe was based solely on a cab driver's identification in a lineup of Mr. Radcliffe as the man who shot and robbed him 18 days before. Mr. Feige failed to persuade Justice Massaro to suppress the driver's identification but won a pretrial ruling—novel at the time—in which Justice Massaro ruled he could present an expert on eyewitness identifications, People v. Radcliffe, 196 Misc. 2d 381 (2003). In his affidavit, Mr. Feige wrote that he had agreed to have Justice Massaro try the case after a bench conference on the eve of trial at which the judge raised the possibility. According to the affidavit, Justice Massaro "fixed me with an unmistakable look, nodded his head in an affirming way and told me 'I am intimately acquainted with the vagaries of eyewitness identification.'" Based on that exchange, which the author described as a "wink," he said he was "absolutely convinced" Justice Massaro had "already decided" to acquit his client. However, while Justice Massaro acquitted Mr. Radcliffe of attempted murder and first-degree assault, he convicted him of the two lower counts and sentenced him to 15 years in prison. Mr. Feige said in an interview that he had become the subject of Justice Price's harsh critique "not because of who I am but what I did—put him in a very awkward position by revealing a company secret that everyone knows, but no one wants to publicly acknowledge"—that judges frequently signal attorneys that it would be in their client's interest to take a bench trial. Mr. Feige, a graduate of the University of Wisconsin Law School who was admitted to practice in 1992, worked in the Bronx for seven years, rising to become the chief of trials for the Bronx Defenders before leaving to write "Indefensible" after receiving a grant from the Soros Foundation. Mr. Feige said he was aware, when he submitted the affidavit, that his revelations could open him to ethical charges, but said the "honorable thing to do when you screw up a client's case is to say what happened, what is true, no matter the consequences." Justice Price did not refer Mr. Feige to the disciplinary authorities. Mr. Feige said that being a public defender was the "best job I have ever had" and "I have no intention of giving up my law license." Mr. Feige, who splits his time between New York and Los Angeles, said he would like to practice again eventually, but for the moment, "the glamour of being a Hollywood producer is fun." "Raising the Bar," which Mr. Feige co-produced with Steven Bochco, whose credits include "L.A. Law" and "NYPD Blue," was canceled in December after a two-year run. Mr. Feige is pursuing the development of another law-related TV show.