Review of Doing Justice: A Prosecutor's Thoughts on Crime, Punishment and the Rule of Law (Bharara)
A Prosecutor's Thoughts on Crime, Punishment and the Rule of Law
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Preet Bharara was described in March 2017 in the New York Times as “the nation's most aggressive and outspoken prosecutor of public corruption and Wall Street crime”. He was the United States District Attorney for the Southern District of New York from May 2009 until his dismissal in March 2017, when he declined to resign having been instructed to do so on the instruction of the Trump administration's Attorney General Sessions, along with all other US DAs appointed by former President Obama.
In this book which is part memoir, part training manual on lawyering and leadership, the author shares with us his insights of many years at the heart of US criminal justice. It is enlightening and an enjoyable read.
The author dispenses his advice and experience in the format of a criminal process from investigation to trial and ultimately punishment. This is a helpful approach, as it is broadly common with a system we recognise in Scotland, albeit practices such as witness preparation and testing jury speeches in advance of trial, where “a group of us eavesdropped from leather chairs, through one way glass, on the focus group's 'deliberations'”, are alien. However, to learn from others' systems is enlightening.
For example, we also learn about “assisting offenders” who engage in “proffer sessions”, where they are first required to admit their involvement in the crime charged but also “cleanse their soul... to all other bad conduct”. The latter is demonstrated where an investigator chanced upon a letter from Eric Glisson, who had been convicted and sentenced to 17 years' imprisonment for a crime he did not commit. Glisson's letter maintained his innocence. The investigator, John O'Malley, recalled the crime and through careful diligence uncovered that years previously Gilbert Vega had confessed to the crime during a proffer session. Bharara uses this as an example of the need to maintain an open mind and not lightly dismiss complaints of false conviction, as well as the need for locus inspections as a method of confirming the likely credibility of oral witness evidence. Likewise the arrest of Brandon Mayfield, whose fingerprint initially led him to being detained as responsible for the Madrid train bombings, but this was ultimately found to be wrong and led to a public apology from the FBI and compensation of $2 million.
Many chapters offer sound advice for the young or inexperienced court practitioner. One such chapter addresses the judiciary. In common with all systems, Bharara observes, the judge and their known ways dictate the experience in court. He describes the conduct of the judge in the recent trial of Paul Manafort who, while outspoken, “did possess some self awareness. He said at one point, 'I am Caesar in my own Rome', duly and humbly noting 'It's a pretty small Rome.' Later when faced by criticism from the Mueller team of his comments reflecting prejudice of the prosecution, he said: 'This robe doesn't make me anything other than human.'” Quite. [Quote marks OK? How much is a single passage?]
The author also describes many of the most significant trials which were prosecuted under his tenure. They include that of corruption by Sheldon Silver, Speaker of the New York State Assembly, and Dean Skelos, New York State Senate majority leader. The latter is a profound example of preparation and, in doing so, looking at your case from the defence perspective. What will be advanced, and how can the prosecutor address that? The defence narrative for the Skelos trial was estimated to be that the father had secured business for his son but, rather than being criminal, it was simply the act of a loving father looking out for his son, albeit the son was in his 30s. This proved crucial and the work undertaken to address that narrative was successful in securing the conviction.
While the invocation to bring humour to the court room to deflate the judiciary, in appropriate situations, may be less well received in Scottish courts than appears possible in the US, there are numerous techniques and sound advice on how to approach the criminal process with an open mind, the overarching importance of fairness, and preparation. Now, a challenge. A similar book from one of our own to refine these principles for those in the Scottish system would be welcome.
The author writes with confidence about his own contribution to the system and delivery of justice of some of the most serious cases and offences in the US. However, he writes also with humility, demonstrating the role of the prosecutor as wider than seeking to persuade a judge or jury to convict those believed to be guilty but also to be independent, bold and take courageous decisions when that is called for. As Bharara writes: “Do the right thing, in the right way, for the right reasons.”
This book should be essential reading for any prosecutor. However, it offers much more to all involved in the court system, whatever crucial function they play to ensure the rule of law is maintained and justice delivered effectively, fairly and humanely. As Shakespeare wrote (The Taming of the Shrew, 1.2.280), Tranio:
David J Dickson, review editor
“And do as adversaries do in law,
Strive mightily, but eat and drink as friends.”