“Doing Justice” takes the reader on a chronological walk through the federal criminal justice process, covering such topics as interrogation, the use of cooperating witnesses, indictment (including a prosecutor’s decision to walk away from a case), trial and punishment. By taking this vignette approach, Bharara tells me that you can “pick up this book to any of the chapters and begin reading. You can start at the middle, you can start at the end or the beginning.”
But “Doing Justice” is no text book. It makes its points through Bharara’s observations, experiences and discussions of moral and ethical dilemmas, all of which are illustrated by fascinating accounts of cases handled by the SDNY. What makes it all so compelling are the closed doors that Bharara unseals. You are taken to places you never thought you could go.
And nobody can accuse the former prosecutor of wearing rose-colored glasses. He does not hesitate to point out mistakes made by his office and shortcomings in the system.
The book’s strength is in its main characters – the accusers and accused. At the stops along the tour, Bharara focuses on the human aspect. Those involved in the investigation process are subject to the risk of “confirmation bias” – once someone credible comes to a conclusion, subsequent examiners may be prone to agree with it. Interrogation is a course in psychology – the approach the interrogator takes and what makes the subject open up and provide information. Prosecutors face moral concerns when using cooperating witnesses. And for the cooperators, they must confront the decision to dime-out a friend or colleague for their own benefit.
All of this goes back to the lesson he learned from Darrow’s summation. “Justice is served, or thwarted, by human beings,” Bharara says. “Mercy is bestowed, or refused, by human beings.”
Bharara “did not set out to write a book for lawyers. This would have been a much easier task if I was writing a book for lawyers,” he tells me. “I could use jargon and I could assume knowledge and I didn’t have to explain cooperation, the grand jury. . . . I could have written that book in half the time. It also would have been an easier book to write if I didn’t care about being thoughtful about issues of decision making and ethical dilemmas and I just wanted to tell stories.”
While the book may not have been written for lawyers, not once in its 300-plus pages did I feel overqualified to read it. Hardly. Until now, everything I knew about the criminal justice system I’d learned from Law & Order reruns. “Doing Justice” is an eye-opening and riveting insider’s account of the criminal justice system.
Don’t Be Fooled
My conversation with Bharara is frequently interrupted by laughter. He is easy-going and quick with a witticism. It is easy to forget that this laid back guy was known for being unrelenting in the pursuit of justice.
Bharara says in “Doing Justice” that there is Justice Department guidance that a prosecutor brings a charge if he or she is more likely than not to obtain a conviction. But Bharara isn’t convinced that it should always be based on statistics. “It depends on the case and the circumstances.” Bharara explains: “If fifty witnesses tell me someone is guilty of a crime, and they all die in an earthquake, it’s still a righteous case and if I have a chance of convicting, I should bring it.” Of course, he is quick to point out that the prosecutor must not proceed, even in a winnable case, if he or she has a legitimate qualm about guilt -- “period.”
“You might have two cooperating witnesses who are kind of gross, and you have some concern, based on how unseemly they are, that they might not be welcomed warmly by the jury. But you believe that they are corroborated and you believe they are telling the truth in good faith. If it lowers your chances of prevailing do you not bring the case? I think you do.”
As head of the SDNY, Bharara was unafraid to be out-spoken. In “Doing Justice,” he defended his actions, as U.S. Attorney, in drawing attention to the problems of opioids, gangs, insider trading and public corruption. But he acknowledges that he can also see the argument for being quieter. Which path to take, Bharara concludes, “depends a bit on how ones sees the job and its potential impact. Is it purely to prosecute or also to prevent? Also to educate? Also to warn? Also to deter? The important thing was not to affect any particular defendant’s right to a fair trial. Which I made sure I never did.”
Bharara doesn’t hide that a federal judge took him to task for what she described as his “media blitz,” on account of a fired-up speech he gave in 2015, about the conduct of New York State Assembly Speaker Sheldon Silver, the day after the powerful New York politico was charged by Bharara’s office with public corruption. While rejecting the defense’s motion, to dismiss the indictment on grounds of pre-trial publicity, Bharara admits that the judge “slapp[ed] [him] hard.”
But Bharara is unapologetic when I ask him about it. It was a warning shot, he explains. “You . . . can’t get at every crime, so, yes, I wanted the other politicians who were corrupt, who were going to commit crimes, I wanted them to know.”
Landing A Job At The SDNY
The job of Assistant United States Attorney – for any district, and especially the SDNY -- can be a large stepping-stone to even greater things. Did Bharara seek to minimize turn-over in the office by attempting to hire career-minded prosecutors?
I hit a nerve with the terminology I used: “The way you ask the question, I didn’t like it if I got a sense that people viewed it as a ‘stepping-stone.’” Bharara explains that he sought out prosecutors who “respected the idea that it was an inherently valuable service that they had done. If it looked like someone [for whom it] was a way-stop for them to run for office, or get a partnership or some other thing, I tried not to hire those people.”
“Look,” Bharara admits, “it happens to be a catapult to greater things -- it was for me -- it is for a lot of people. But I would like to think that we made sure that we brought people in for whom that was an incidental consequence of taking the job.”
Bharara had other criteria for making hiring decisions. “Harvard doesn’t teach you how to speak to a Blood or a Crip. They should have a class,” he says, smiling. “Young prosecutors . . . haven’t lived a lot of life. They are really smart. We tried to make a great effort not to hire just people who are really smart. A lot of people are really smart. But hire people who are not only smart, but thoughtful, have perspective, because they are going to have so much power.” Being smart, Bharara tells me, doesn’t mean that you “know how to talk to regular folks, . . . how to talk to victims. You learn by doing and you try to find people who are not just at the top of their class at Harvard Law School.”
Bharara has the statistics to demonstrate the unparalleled demand for a prosecutor’s job in the SDNY. “I think I made 180 offers,” Bharara tells me. “I think 179 [accepted on the phone]. Nobody needed a day to think about it. Nobody needed to talk it over with a spouse. Nobody needed to say ‘well let me see if this other offer comes in.’”
Bharara shares with me the story of a billionaire who once asked him who his competition was for labor? “This is going to sound to readers who live in other districts as very arrogant,” Bharara warns, “but it’s a fact. We don’t have any. Because if they get an offer from us, they take it on the spot.”
“The Trump Effect”
What about the “CSI effect?” Did Bharara’s office see any impact of that? So the theory goes, jurors, accustomed to seeing forensic evidence used to solve crimes on television, will not be satisfied of a defendant’s guilt if the same quantum of physical evidence is not presented to them.
Bharara’s short answer -- yes. But he pivots and prefers to discuss a different challenge faced by prosecutors these days: “You didn’t ask this, but I am going to answer it anyway. A more insidious issue we are having now is not the ‘CSI effect’ but sort of the ‘Trump effect.’ It matters when the person with the largest microphone on earth decides that he is going to indiscriminately say ‘the FBI is terrible,’ ‘the intelligence agencies are terrible.’ It undermines people’s faith in the rule of law. It undermines people’s faith in how the justice system operates. Other people have said it, I think FBI directors have said it, if you spend a lot of time with the biggest megaphone on the planet, telling everyone that the FBI is terrible, . . . [it] undermine[s] the credibility of the entire institution. And that has an affect too on juries. They are more skeptical when they walk in the courtroom too.”
The Next Chapter
United States Attorneys frequently transition to the defense side. But can Preet Bharara, a man whose name is synonymous with law and order, see himself arguing to a jury that the government hasn’t met its burden of proof?
“I think people deserve representation, even if they have a lot of money,” Bharara tells me. “At this particular moment in my life, I don’t have an interest -- because I have other options -- in representing individuals or institutions who have been charged with crimes. Other people can do that. They deserve the best representation they can find.”
While Bharara has no immediate plans to spend his days in the Daniel Patrick Moynihan United States Courthouse in lower Manhattan, he gives me a clue as to what may be next-up: “If I were to go into that area [private practice], my preference would be a practice in which I could help companies reform after they admitted to doing conduct that is improper or less than ideal or doing internal investigative work with an eye towards ferreting out bad actors and bad conduct.”
But, for now, Preet Bharara is clearly enjoying the opportunity that his firing, and the resulting media storm surrounding it, have given him. “People maybe read the things I write. You can have some civic impact that way, which I think is good,” Bharara explains. “That’s why I’m doing it. That’s why I’m not doing what a lot people who may read this are doing. I’m taking a pause, from the traditional practice of law, to do this, and speak to people, and to pursue things that I care about and believe in and I think people can be educated on.”
“I’m very fortunate that I have a platform from which I can speak and teach and write and more than four people will listen and read. Maybe I won’t have that in five years,” Bharara considers. “Not everyone gets that chance. So I decided to seize it.” |