By All Appearances
Every weekday for five years, Nash rode the elevator to the sixth floor of 1 Hogan Place and walked half-a-block length down the dim, green hall to Trial Bureau 50. The walk was a source of pride; the door sergeant knew him by name, the marble was impeccably polished, the secretary, with whom he had attended high school, smiled only for him. The Manhattan District Attorney’s Office rivals Los Angeles’s in size, and Trial Bureau 50 has a reputation for producing the toughest prosecutors around. Its chief, Warren Murray, is a military man. “Each case we were to treat as if we were Spartan soldiers who would not be fooled by the Trojan horse,” said Nash. In his first week as assistant district attorney, Nash was assigned 10 cases; in his second, he took on 20. “That was how our chief played with us. You never got comfortable. You were always in triage.”
It was the small crimes at first—drugs, theft, third-degree assault. Soon, Nash was working in the Early Case Assessment Bureau, where he interviewed officers after a crime had been committed to see if he had grounds to prosecute the case. From time to time, he questioned the perpetrator. “I was always shocked to find that even after I would read them their right to remain silent, their right to an attorney, their right to know that anything they said could be used against them in court, they still wanted to tell me their story, even if it might hurt them.” Once, a defendant requested that his wife speak with Nash. Nash agreed, thinking the wife may have been an accomplice. The three of them chatted for a while. “Eventually, I realized that the man just wanted his wife to witness him doing the right thing,” said Nash. “He thought he was being an honest guy, giving himself up, and he wanted to make sure she’d still be there when he got out.”
Even on the job, Nash expressed a playful sort of cool, a trait, perhaps, that drew the truth out of people. While most prosecutors left their office walls blank, he pinned his with photographs from his travels abroad. His fellow ADAs joked that Nash put more holes in his walls than the police shot through Amadou Diallo. One day, Nash went to trial in a salmon shirt and matching tie, though Murray had demanded that all prosecutors wear white shirts beneath their suit jackets. “I had to ask the chief a question, and he wouldn’t respond,” recalled Nash. “He stared at me like I was an alien. I was thinking, Is this question going to be answered? Then he said, ‘What are you wearing?’ I said, ‘Chief, I wore pink because I’m feeling like a pink day.’ He let me be.”
Nash believes it was his skin color that ultimately lent him an advantage. Most of his fellow attorneys were white, while defendants, and even officers, were often black or Hispanic. “I think they would look at me and decide they felt comfortable telling me all kinds of things,” he said. Nash became close with several officers; they came over to his house and talked about their kids. “I knew that an officer coming in would think, okay, he’s probably a chill, normal guy. He’s not going to bust my balls.”
In spite of this, Nash was a relentless prosecutor and, especially at the beginning, maintained a reverence for the law that some of his colleagues thought he took too far. Once, he charged two teenagers with trespassing for having sex on the roof of an apartment building. “It was dangerous, and they weren’t supposed to be there,” he said. Another time, he charged a Ron Paul supporter for selling political playing cards outside the Republican National Convention without a permit. Nash does not doubt these decisions, but he does regret one particular case, in which an elderly woman was caught selling drugs not far from a school in Harlem. At the time, Nash lived beside the school and woke every morning to children’s voices passing on the sidewalk below. In New York, selling drugs within 1,000 feet of a school earns a higher felony charge. Nash felt conflicted about this law. “There’s a school within 1,000 feet of anyone selling drugs in Manhattan. Black people tend to live in dense areas. So it puts the ones caught up in a system of selling drugs at an unfair disadvantage.” Still, Nash ordered the police officers to chart the distance with a measuring stick; it was 800 feet. “I wanted the jury to see that she had no respect for small children. And yet I still think that school zone law should be repealed. I charged something I didn’t think should be on the books.”
Eventually, Nash was assigned more difficult cases. He worked on the “smart stuff” like identity theft and, in his fourth year, prosecuted his first homicide. He didn’t like rape or child molestation cases, which wore on him emotionally, nor did he consider himself very good in the domestic violence unit. “I always wanted to solve the marriage problem,” he said, and admitted that he was more concerned with getting the victim to safety than with prosecuting the assailant. In most cases, defendants would plead guilty before the case went to trial, but Nash lived for the CSI moments. Every stand he took in front of a jury became a kind of performance: “Good morning ladies and gentleman of the jury,” he’d begin. “I’d explain that this was called voir dire. It’s French, to speak the truth. ‘I want you to speak the truth to me. I know it’s hard to judge another person, and if you don’t want to do it, then we can excuse you. But if you believe the person is guilty beyond a doubt, then will you convict?’ That was so natural to me, to look in their eyes.”
It was only after Nash had served several years at the DA that he began to notice some troubling patterns. For every case that he prosecuted, he wrote a report recommending a charge and submitted it to his supervisors. He recalled a few cases involving white, educated defendants in which his supervisors recommended lessening the charge, but when the defendant was black, he said, they often approved of his recommendation. “Once I thought a defendant had done a very violent thing, but he only got a slap on the wrist. He was wealthy, in college, and drunk in the East Village on a Friday night,” he said. White defendants, Nash found, were more likely to challenge a charge in court, while black defendants often pled guilty without a fight. He noticed, too, that black and Hispanic defendants, though most often charged with minor crimes, cycled frequently through the system.
At first, these observations puzzled Nash, who had never suspected his colleagues of racial bias. “Rarely in those five years did any officer say anything to me that made it apparent they were engaging in racial profiling,” he said. Then, in 2005, one case made things clear. It was summertime, and a white woman was idling her car outside a housing project in Harlem. Police had watched two black men get out and go into the building. Suspecting that the three were involved in a drug deal, they approached the woman, who told them that she was waiting for her cousins. It was a dangerous neighborhood, they replied, and ordered her to leave. When the men emerged, the police searched and arrested them. “If you thought this woman was involved in the crime, then why would you let her go?” said Nash. “The only reason was her whiteness. They were not concerned that she could be trafficking or carrying drugs, but those two black men were already seen as criminals.”
The police officers realized that in their system, blackness functioned as an asset: “You take a black body, and what you get is a payoff.” A white body might put up a fight—the charges might not stick, the reward may not be as great. Statistically, blacks and Hispanics don’t fare as well through the criminal justice system. Why? “Because they’re poor. Because they have public attorneys who are overworked, burned out, or jaded.” This made them more vulnerable.
Nash dismissed the case, but he had begun to think that the criminal justice system was broken beyond his fixing. How many similar cases had slipped quietly through, simply because the law enabled them to? Nash rarely suspected officers of racial profiling, he now realized, because officers weren’t aware of what they were doing; in fact, they had been trained to do their job this way.
In 1993, when Rudy Giuliani was elected mayor of New York City, he hired William Bratton as his police commissioner. Bratton was a proponent of the broken windows theory, that stemming small crimes and acts of vandalism would ultimately prevent more serious crimes. Stop-and-frisk was one way that police enforced this model. With only an inkling of suspicion—the smallest crack in a window, for example—officers could stop a person on the street and search for contraband. It was, by all appearances, a racially neutral policy—unless one looks to the numbers. Every year since 2002, more than 80 percent of individuals stopped and frisked were black or Hispanic. In 2011, 9 percent of those stopped were arrested. Officers may not intend to target people of color, but they are hanging out in poor, black neighborhoods. Why? Nash knew that if an officer was looking to fill a quota, policing a dense area was more efficient, but he began to think, too, that black neighborhoods simply had less political capital. “If police were to take this to the suburbs, people would complain, politicians would respond to those complaints, and the police would be told to leave. That doesn’t happen in these neighborhoods. Their power and voice has not always been very great—certainly not great enough to stop mistreatment by the police.”
It is a predicament nearly impossible to dig oneself out of. A third of America’s prison inmates are black. “They’re now second-class citizens,” said Nash. “Once they’re convicted of a felony, they lose their right to vote. They lose their rights to public assistance in housing. They can’t rejoin their families if they live in housing projects, so there’s a severing of family ties. It also makes them unmarketable for jobs. This is what we call social death. You cannot participate in the political system. Your voice means nothing.”
In his fifth year as ADA, while prosecuting his final homicide, Nash studied for the GRE. In 2008, he enrolled at Northwestern University. When I asked what his colleagues thought of his leaving, he told me, “I think they thought I always acted more like a professor anyway.”