NYC can get pretty dark.
On opposite ends of the thirteenth floor at 100 Centre Street, two juries found two defendants guilty of two heinous crimes. At the very same time on some of the past cold April days, these defendants sat across the hall from one another, each with a curved Dominican back and long black hair like paired parenthesis. Next to their attorneys on the right side of the courtroom facing “In God We Trust,” they looked up to a judge, over to witnesses, out to a jury of their peers, and forward to whatever freedom “Not Guilty” could afford. They sat like this, quietly with folded hands, declining to say a word in their own defense, until what had been lost in the truth was found. Guilty.
While the judges’ gavels knock, knock, knocked for order and justice in unison, you only heard one of them. One of these trials was the famous “Nanny Trial,” the other was not. I’m telling you now about the other, the Not-Nanny Trial, because it was just as important. In fact, I found myself personally invested—if not engrossed—equally in these trials, so much so as to attend part of each live, get daily updates, and share in the sweetness of the prosecutors’ harvest.
My confidence, pride in our criminal justice system, the reasonability of our rules of evidence, the impartiality of our judges, etc. increasingly hinged on the right result not just in the Nanny Trial which the world watched closely, but in the Not-Nanny Trial which no one but me (and one excused potential juror) watched at all. The unrelated casts of characters interacted in my dreams. Unlike my own legal work, it wasn’t a matter of winning or losing. These trials were the real deal. Every minute of the Nanny Trial would be scrutinized through the conviction, but what about a trial in which there was no scrutiny? If reasonable doubt falls in a courtroom and no one is around to hear it, does it make a sound?
Over weeks, the Nanny Trial unfolded a story told around the world in different languages and stylized photos for the things words in any language couldn’t capture. Nanny Yoselyn Ortega slit the throat of the two-year-old boy she fed and bathed since infancy. She left him for his mother to find in the bathtub of his home, his blood pooling with his sister’s, a six-year-old who fought the Nanny for her life and lost it too. Ortega stabbed the little girl more than 30 times.
The children’s mother testified that she was unaware she had been constantly screaming for hours after she discovered what Ortega had done. She realized the ringing in her ears was the sound of her own screams only when a police officer tenderly asked her whether she could get herself to stop, whether she could help them do their work by allowing them just a few minutes of silence so they could focus.
The Nanny brutalized this family in their own home. She violated them in their safest space. The victims’ familiar conveniences of Manhattan’s Upper West Side, abundant money, enviable social status, privileged education may have played a role in creating the circumstances that lead to the tragedy, but none of it meant anything then. Nothing could help, none of it could be changed.
Taking my place in the third row of the seemingly double-wide courtroom, the black of the Nanny’s hair stood out from all-else. Her shoulders were slumped they way they would be if she was on the subway. Waiting, waiting, to get off at her stop.
I sat through the cross examination of the police officer who had taken the Nanny’s statements the night of the murders. He guarded her while she was examined and received treatment for self-inflicted stab wounds to her neck. She told him in Spanish that the children’s mother treated her horribly, among other things, vindicating what she’d done, proving that she had thought it through and intended to cause the children great harm and the mother’s hysteria.
As the questions and answers volleyed, often only slightly reworded, the Nanny’s lawyer did not impress me. She argued with the judge, who made measured and reasonable rulings on the prosecutor’s well-spoken objections. Sometimes she argued with the judge even when he ruled in her favor. I followed the twitching rhythm of her questions and the discordant beat of the points she tried to elicit from this witness. I was half lawyer critiquing form, and half concerned citizen rooting for the Nanny to burn.
Every news outlet covered the Nanny Trial. The New York Times, Slate, CBS, ABC, the Wall Street Journal, the flimsily feminine The Cut, local stations like NY1 and international tabloids like The Mirror. They each told and retold the story. They summarized testimony from the Nanny’s sister, the children’s mother, the experts. They reported the verdict.
The mystique around the horror caused by the Nanny has even inspired award-winning literature and art, launching careers around the reverberating fear of how evil someone close to us may secretly, patiently be. The story behind the Nanny Trial showed the grisly beauty that can be found in the deepest depths of grief. Given its correct outcome, the Nanny Trial meant that the worst of the worst could not escape culpability, at least not in New York, which is a good and comforting thing to come from all the badness.
The Manhattan District Attorney, Cy Vance, himself attended part of the Nanny Trial. He commented that he wanted to see “how our system was working.” He checked the temperature of his system, our system, by dipping his finger in the oil of the hottest pot.
In contrast, no outlet covered the Not-Nanny Trial. No one wrote a word about it in a newspaper or online. There were no profiles, no summaries of any testimony, no sketches, no predicted or reported verdicts. No one has created grimly lit art with the light of this story. Cy Vance did not attend any part of the Not-Nanny Trial.
I only knew about the Not-Nanny Trial because a close friend was one of the Assistant District Attorneys prosecuting it. I cheered her on for weeks while she prepared to make a guilty man accountable without absorbing the gravity of the case itself.
When I took my seat in the third row of the Not-Nanny Trial courtroom, the parties were arguing the admissibility of the victim’s 911 call. The judge reached an informed, fair ruling, which allowed only small bits of the call to be presented. I settled in as the judge introduced my friend to the jury. She took the podium and began her opening statement without saying “Good morning,” without restating her name or what she was there to do. Within the first 3 minutes of her presentation, I went from participating quietly 80% as a supportive friend and 20% a conscientious practitioner to 100% an alarmed citizen. I was no longer there to police verbal ticks or point out confusing elements. Suddenly, I was there because this, this trial would lay bare the redundancies and omissions of our criminal justice system. And only I was there to see it.
In the Not-Nanny Trial, Defendant Not-Ortega pressured his way into his victim’s apartment on a Saturday evening under the guise of connecting her to work and well-being. Once there, he made himself at home with liquor, weed, and small talk. When the victim asked him to leave, he went into the bathroom and came out with his pants down, demanding that she suck his dick. When she refused, he held her down, choked her, and rammed himself into her mouth. She vomited three times while he berated her, insulted her, and blamed her for being unable to keep his erection. Then he left, walked out of the lobby under three surveillance cameras smoking a cigarette. He sent the victim a text message probably before he even got home, “Please don’t be mad at me.”
The victim had her own conviction history. At sixteen, she came home to find that her roommates had kidnapped a federal prosecutor. He was bound in her living room. She had other imperfections. She said she debated calling 911 after Defendant Not-Ortega sexually assaulted her because she considered taking matters into her own hands and hurting him back. She said either she was going to jail, or he was.
Not-Ortega violated his victim in her own home. He victimized her in her safest space. Her life in Harlem, lack of money, low social status, poor education may have played a role in creating the circumstances that lead to the attack, but none of it meant anything then. Nothing could help, none of it could be changed.
I did not watch the victim of either trial testify, partly because of scheduling conflicts and partly because I couldn’t do it. I couldn’t bring myself to the place where a complete stranger was going to tell me to my face every detail of the most horrific moment of her life. And I anticipated that, to be even remotely effective, the cross examinations would be brutally invasive and strategically callous. I didn’t trust myself to sit quietly while defense counsel picked apart someone who had been through so much, making her out to be a liar or selfish or somehow deserving of the anguish she felt now. Instead, I watched parts of each trial that were easy to digest, clear components where the evidence adduced was important because it put damning statements or video in front of the jury. Each piece of evidence a brick laid around each Defendant until s/he was completely walled in.
Plea deals and non-violent offenders aside, for every worldwide-famous Ortega, I don’t know how many hidden Not-Ortegas there are. I don’t know how many lonely victims breathe in relief having told their story and being heard—believed—by their peers. I don’t know how many defendants sit down as convicts. I don’t even know how many other courtrooms there are on the thirteenth floor.
But having seen both trials, I have dipped my little finger in the pots of our system—from the hottest to the coldest—and it works. It has its problems, limits, but it is working. As a lawyer I’m interested to know that, but as a citizen, I find comfort in this. Now I know definitively that whether I am screaming so loudly the world hears me, or whether I am choked out of any sound at all, whether I’m standing in a millionaire’s home or public housing, if I gained things I never knew I could have or lost it all, justice will see me, find me. At least, on the 13th floor.