Inside My Brother's World As A Public Defender Of People Accused Of Murder

Samuel Roberts tells us what it's like to be on NYC Legal Aid's Homicide Task Force.

Samuel at home where he lives with his wife, his daughter, and his puppy Bug

You credit the launch of your legal career to an allegedly botched nose job. Explain.

I was a teacher for a couple of years after college, my first job, and then my friends and I opened the first of what would be a couple of restaurants in New Jersey, and then in lower Manhattan. And it was a great run.

And then we found ourselves in our early 30s, after 9-11, deciding whether we were going to continue to live the insane hours of restaurant life for another 10-15 years or do something different. And part of that was driven by 9-11. Part of that was driven by just the age that we were at, including my partners at that time, getting married and having kids, and we chose to do something different. I had no idea what “different” meant for me.

I happened to be called for jury duty. My first time. And I was the only one of my fellow panelists who was thrilled to be selected on a civil medical malpractice trial, which was a trial of an allegedly botched nose job.

The young woman who was the plaintiff had suffered a childhood playground accident and busted her nose, and then had gone through a series of nose surgeries. And she had clearly become pretty obsessed with her nose. And she sued her last doctor who was a pretty prominent plastic surgeon.

And he looked the part. He looked like Hollywood casting. He had a great studio tan, beautiful suit.

He had practices in Park Avenue and Beverly Hills. And he just came across as kind of smug and unlikable on the stand, but also very competent. And it was pretty clear to the jury, myself included, that he had done nothing wrong.

And the only reason we didn't come back immediately with a verdict in favor of the doctor was we wanted to wait for our lunch order to be filled.

But when they announced the verdict, the plastic surgeon, the defendant, started weeping hysterically. And I found that to be really, really strange and interesting and totally contrary to any stereotype that I had formulated in my mind about him. And I waited around afterwards to talk to him and his attorneys.

And he looked exhilarated, emotional, exhausted. And he talked about how important his job was to him and how he felt for this young woman. But he didn't want to settle.

And he had to fight with the insurance company. And this was a day that had been years in coming. And it was a huge, huge day for him.

And there was this level of intensity about it that just really attracted me.

And then you volunteered at The Innocence Project.

I had started to think that being involved in litigation was something I might want to do. And then I met a friend of a family member, a guy who had just graduated Yale Law and was a staff attorney at the Innocence Project.

And he suggested I volunteer. And I did. I said to myself, why not? I'm totally at sea with myself.

I wanted to do something meaningful and important and interesting and at least galvanizing to me. And at the Innocence Project I got hooked on the idea of indigent defense work.

My volunteer work was basically opening letters from people who had claims of wrongful conviction. As you can imagine, there are a lot of people in the United States serving very long sentences, with a lot of time on their hands who, guilty or not guilty, want to write letters.

One of the letters I opened was from a guy named Al Crotzer. There was something about his letter that moved me. I made a few phone calls and it turned out that a slide from blood testing from a rape kit was accidentally preserved, not thrown away, because it was stapled to a manila folder rather than trashed as it was supposed to be after seven years. And that slide turned out to be the linchpin in exonerating Al Crotzer three years later, from the 138-year sentence on a conviction for armed robbery and rape of a 12-year-old girl, which he had nothing to do with.

So after the first few months with the Innocence Project, I thought this is the work I want to do. I think I could be pretty good at it. And like with most things in life, the things that you like happen to be the things that you happen to be good at.

I applied to law school and joined the public interest program at Fordham Law and graduated and clerked for a judge for a couple of years and then immediately joined the Legal Aid Society in 2008 where I am now. I was forty years old.

You were in the first generation of attorneys that formed The Homicide Defense Task Force in 2019. Why was the Task Force created?

Something like 90 percent of people charged with murder are indigent. They can't afford an attorney. Before the Task Force was created most of these murder cases were typically farmed out to private attorneys who are court appointed and paid by the government. And there was some concern about judicial cronyism, judges sending these murder cases to their lawyer friends. In murder cases there’s a ton of work, a ton of billing.

And the private attorneys who are court appointed range from being extraordinarily good to really weak. But they all lack access to institutional resources and have to go to the court to get approval for third party resources like investigators and experts. And the court will often give the private attorneys a hard time on who they can use and what they can spend.

So indigent murder defendants were getting uneven and unequal representation. Our Homicide Defense Task Force was created to redress this by recruiting the Legal Aid attorneys that have the highest experience and drive, the most institutional knowledge, and who know how to make use of Legal Aid’s substantial resources.

What are the resources of Legal Aid?

In terms of resources, we're nearly unconstrained. And it's amazing.

I've never been denied a request for an expert or more investigators. I usually get an approval from our director, literally within minutes of an email. There was one time when I had to work for an approval, but it goes to show you what resources we have.

I was defending a client from Honduras who stabbed his girlfriend to death. Brutal, brutal murder.

There were definitely psychological elements. But his whole background, his history was in Honduras, and this was during COVID. To have a shot at mitigating the charges, we needed to have information about his history outside of the United States.

On Legal Aid's dime, we flew an expert death penalty investigator and a Spanish-speaking attorney who was also a social worker from LA to Honduras for two weeks. They went into these small villages and interviewed people who knew our client, got records, took videos, and photos, and wrote a compelling report.

It cost about $40,000. To get approval, I had to write a three-page memo, and that was it. And it's amazing that we got that done.

Who are your typical clients?

Within the five boroughs of NYC, most of the people getting arrested are people who cannot afford an attorney. Most of them are men of color. Every single one of my clients in the homicide unit has been Black or Hispanic or a mix. Only recently did I get my first female homicide client. More than half of my clients have no criminal record before they allegedly commit their first homicide.

To be represented by Legal Aid, you have to be at or below 250% of the federal poverty guideline. For a household of three people, husband, wife, maybe one child in NYC, that comes out to about $60,000 a year.

So the worst position to be in is to be a lower level white collar professional in New York charged with a serious crime. If you make say $100,000 a year and you're charged with a murder, it's a terrible position to be in. As a murder defendant, It's best to be poor or really, really rich.

Throughout their lives, most of my clients have been forced to rely upon government assistance of some form. SNAP benefits, Medicaid, whatever, and their experience is usually crap.

So they assume that their public defender is going to be crap too.

And sometimes my clients in their greatest compliments to me say after a case and a good outcome, they look at me and they look around and say, you know, if you really want it, you could be a paid lawyer. And for them, they mean that as the highest compliment.

What’s a first meeting with a new client like?

I've never had a bad first meeting with a homicide client, meaning bad like I don't like this guy or this guy doesn't trust me.

I go in thinking this is probably the worst moment of this person's life. I am so focused on getting some essential information that I won’t be able to capture in the same way at any later time, particularly if it’s about their arrest and if they gave a statement and anything else that goes to what we call pre-trial suppression issues.

I tell clients, look, you've just met me. You're being arrested for murder. I'm a white guy you've never met before, and I happen to wear a suit and I tell you, I work for Legal Aid Society. My job right now is to earn your trust, and I don't expect you to give it to me.

That's my preamble with my clients and it seems to resonate..

I'm trying to get information. I'm trying to establish trust. So I'm thinking, like, what's the human angle? What's my relationship to this person? It's all about trying to get them to be open to trust in me. And that takes up a lot of my emotional and intellectual bandwidth.

For example, am I going to make a preliminary bail application in front of a criminal court judge who would never in a million years even consider release conditions on a murder case? But I might because I want to let the client know that I'm fighting for him. Or am I better off saying you're going to hear me tell the judge I'm reserving my bail application? That doesn't mean that we're not trying to get you out, but it’s best to wait until we have more facts. Everything matters, everything’s a calculation.

Closing arguments seem like some mix of persuasion and acting.

Every year, I give a lecture to the incoming class of new Legal Aid lawyers on closing arguments, and I say, look, this may sound pretty basic and kind of cheesy, but when you talk to a jury, you've got to believe everything you say.

And you have to make your argument accommodate the facts and the law and the emotion of the case. If you’re at trial you need to believe that your client, if not actually innocent, is deserving of the lesser charge.

So it's a little more complicated than whether I think my guy did it. No matter what, I'm giving the best defense possible.

That piece of advice I give newer attorneys, to believe everything you say, reminds me of how actors talk about don't judge your character. You're in your character, you are your character. There's no outside of your character at the moment you're acting.

Like, I'm trying to dig into the emotion that I feel and that I hope the jury shares in. And it's unique in my experience. I mean, there's nothing like giving a closing argument after a serious trial where you're leaving it all on the field. And feeling this immense privilege that what you might say to a jury can have operative effect on the fate of another human being.

Most of your cases don’t go to trial. Yet trials seem to be at the heart of what you do.

All the training to become a public defender or prosecutor is your trial advocacy, like how do you cross-examine people? How do you make these arguments? How do you prepare for your closing statement? And as a percentage of the hours you spend working on your cases, trials are very small, but it's what our enterprise points toward.

The analogy for me of going to trial is like you're going to war. It’s a last resort and it's kind of like the way I view, say, the U.S. military. We don't want to have to go to war, but if we do, we want to be the best and we want to win and we have to be prepared. And the only way an army is effective is if your adversaries know and fear you and that you'll do what you must do if you have to go to war.

How does the mindset of a prosecutor and a defense attorney differ?

The personalities of district attorneys, they tend to be rule followers and very much about maintaining the current order. The prosecutorial theory of their cases is most often that there's no nuance here. It’s black and white. We all know what this is. We all know exactly what happened. Plus your client’s a bad guy no matter what. And that’s that.

Whereas I think public defenders think the system's messed up. It's about the individual. It's about fighting the bully. It's taking a pause. Thinking about things. Using your mind.

We’re going for doubt, reasonable doubt, and they're going for certainty. I think reasonable doubt is generally a very, very important aspect of life both inside and outside the courtroom.

Prosecutors are there to protect the public. They represent the people of the state of New York. But as I sometimes tell juries, I do as well. I'm just doing it one person at a time.

Since we’re brothers, it’s no secret that we both grew up with a lot of privileges and advantages. What’s that like for you given your job?

For most of my clients, my Instacart order tonight would make a material difference in their day-to-day lives, in terms of the money spent.

I have inherited wealth that has allowed me to do this without compromising my lifestyle. There are newer attorneys at Legal Aid who still work second jobs.

So having family money makes it a lot easier for me to do this. There is a sense, however, in which I believe that one of the reasons I love this job and love doing what I do is because it is sort of a sheer meritocracy.

It's like, okay, whatever inherited money I have, the jury doesn't know about that. The client doesn't know about that. The facts of the case don't know about that.

Newly minted lawyers at Legal Aid year one, when I started, they were making like $55,000 a year. I have a salary now after seventeen years of about $150,000. That’s less than a first year associate just out of law school at a top corporate firm. And it’s a fraction compared to what I would get in the private criminal defense market, given my experience level and skillset.

You love your job more than anyone else I know.

I do love my job. I feel it defines me more than most people that I know. Yeah, I think that's probably fair.

There’s obviously a dissonance between my lifestyle and that of my clients. I go to Rikers Island and come back to my Tribeca apartment, the contrast is ridiculous. And I do think about that.

But using the freedom of my privilege to do something to help people who are the opposite of privileged is definitely part of my motivation for this work.

I feel that it's so easy to start to believe that “I'm worth more or I’m more interesting or better than someone because of all the advantages that I've had.” You can believe that without even knowing you believe it.

And my job is a way of redressing that.

How annoyed do you get watching legal shows on TV?

I still love legal shows, but it's more like sinking into this warm bath of stupidity. Although I can't watch Law and Order because it's so extreme and the prosecutor always wins there.

The hardest thing for TV shows and movies to get right is the amount of time a case takes and the amount of slowness and, to most people, the dullness of the litigation. To me, it's not dull. In Law and Order, somebody gets murdered and 40 minutes later, there's a trial. By the markers from the show itself, it looks like maybe a few weeks have gone by, and that’s ridiculous.

Tell us about a memorable case

I think of a bench trial (in front of a judge, not a jury) where my client was a 16-year-old kid who was charged with illegal possession of a knife with a blade longer than four inches. He’d never been arrested before, never been involved in anything before. Really sweet kid. He was a little sort of geeky, a little pudgy.

And he was hanging out with his friends on Lexington Avenue and like 112th Street. And it was the same day as the Puerto Rican Day Parade. He was Hispanic.

And he's with a bunch of guys near a bodega. They were getting sodas or whatever.

And the cops were doing sweeps because they're worried about gang activities.

The cops went up to my client and his friends and they start questioning them without any legal basis for it. And then one of the kids has a kitchen knife on him. Not like a big chef's knife, but like a steak knife or something.

And this kid with the knife throws it to the ground. Nobody says anything. It lands right near the foot of my client.

And they arrest my client for carrying a knife not with intent to use unlawfully, but in excess of a four-inch blade in public. And I meet him at arraignments.

And he tells me the whole story. I said, was that your knife? He said, no, I didn't carry it.

And then he said, like, well, the police have the right to do that, right?

I'm like, why do you think they had the right?

He goes, well, I don't know. I'm just like a kid and I'm Hispanic. And I don't live in a great neighborhood.

I'm like, actually, that's exactly why they don't have the right to do that. You know, they'll probably give you an offer on this, but you want to talk to your parents, we can go to trial on this. There’s really no risk given the charge.

He's like, really? And he talked to his mom and dad. He's like, yeah, I didn't do anything wrong. So why should I say I did anything?

And we had a bench trial in front of this very kind of weird turtle-like judge but a decent guy. And the kid, my client, couldn't believe we could contest it.

And I remember walking into the courtroom and hearing the DA, who I didn't particularly like very much, tell the arresting cop, this defense attorney is so annoying. High praise.

And I went in and I cross-examined the cop. I had his notes. I had everything. I made the cop look like an idiot, because he was like, “well, it had to have been the defendant’s knife.” I was able to establish that the limit of what the cop could say was that he heard the sound of an object landing on the street and then saw the knife on the ground near my kid’s foot. That was it. The cop tried to make some arguments about mechanics and distances, and it was glorious. Because he sounded like a fool.

I remember going back to the table and the kid was beaming. I moved for dismissal, which is like saying the evidence is not legally sufficient to support the case. But dismissal can be appealed.

And the judge granted the dismissal. And the DA said, well, judge, we're going to appeal this right now. And then immediately, I knew that if he just delivered a verdict, it wouldn't be appealable. So I remember saying, judge, actually, on second thought, I'm withdrawing my motion for trial order of dismissal under CPL 29010. And I move for an immediate verdict.

And the judge sort of popped out of his shell and said with sudden alertness and enthusiasm “you got it, not guilty.” And the kid was so happy.

That was a great moment. I just remember feeling so happy about that. And that's one of the smallest and least serious charge I've ever taken in a trial.

You like to say if you believe in the system you can’t pull your punches.

I've never lost a case where I've thought I've had an innocent client convicted, and I'm very, very lucky for that. I've also never lost a case where I thought that the verdict was fundamentally unjust.

That said, when I lose, I’m often devastated. Doesn’t matter whether I believed or knew that my client “did it.” Gerry Shargel, a well-known criminal defense attorney said

“A trial may be a search for the truth but I’m not part of the search party.”

[Samuel refers below to a very brutal case where I witnessed part of the trial].

Did I believe that guy was innocent, gun to my head? I don't know. But there's never a gun to my head, though. That's not ever a condition that I suffer under.

I was out of my mind after the summation in that case, three hours long. It was a nine week trial and it was really, really draining. It was really, really hard every day to see the family of the deceased. To see them watching me with anger and hatred as I vigorously defended the man on trial for brutally killing their family member––a 69 year-old great-grandmother.

But each client is a life, whatever they’ve done. I’ve had a client who was a stone-cold sociopath, who would rape, would kill again if set free. But that cannot enter your mind when you're defending these guys.

I don’t and can’t worry about exonerating someone who goes out to convict another crime. I had a case my first year, a misdemeanor case, Alejandro, a guy who slugged a stranger on a New York City bus. He was charged with misdemeanor third degree assault. And he had a record and he had serious mental health problems.

At night court, 12:30 AM on a Sunday morning, I got Alejandro released on his own recognizance. It was a good bail application for a beginner like me. A small victory I took pride in. And the next day, because of an argument over a video game, Alejandro stabbed his seven-year-old nephew to death.

And had I not gotten him out, it wouldn't have happened. And I remember hearing about this, and I remember preparing myself for this onslaught of emotion, of what have I done? And then feeling just nothing. My job the night before was to get Alejandro released if I could. So yeah, that's such a clear test case, if you will, of your ability to compartmentalize case by case. Because you can't ever pull your punches if you're going to do this job well.

At the end of the day, I sleep OK

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Here’s a video with follow-on questions for Samuel about bail reform, the idea of a speedy trial, and takeaways from 17 years of doing public defense work.

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Question for the comments: Samuel will be in the comments to answer questions you have about his interview or anything else you want to ask about his public defense work.

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