A Prosecutor’s Guide to the Just and Fair: On Preet Bharara’s “Doing Justice”
By Stephen RohdeNovember 15, 2019
Doing Justice by Preet Bharara
The SDNY (also known as the Sovereign District of New York, for its reputation for fierce independence) is now more prominent than ever. The closing of the Mueller investigation did not put an end to Trump’s legal troubles. Several major investigations are now in the hands of the very aggressive investigators and prosecutors in the SDNY.
Consequently, Bharara’s reflections on his seven and a half years in charge of the SDNY have taken on added importance. In Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law, he has transformed what early in his tenure he used as a guide to new and idealistic prosecutors into a “guide to justice generally, not only for practitioners, but for real people who strive and struggle in their homes and offices to be fair and just.”
And he succeeds admirably. In these days dominated by craven politicians like Trump, who lies pathologically, bullies and belittles his opponents, demeans women and immigrants, incites his supporters to violence, undermines American institutions, and fails to project high standards of morality, honesty, and integrity, it is such a refreshing antidote to spend some time with a man who cares deeply about these very principles and is eager to share his experiences which teach valuable lessons about justice, fairness, and good behavior.
Although readers may be disappointed that he spends so little time addressing Trump by name, Bharara is clearly worried that the “rule of law and faith in the rule of law, the state of judicial and prosecutorial independence, the meaning and primacy of truth — all are in question and under fire in numerous ways.” He fears that long-honored bedrock principles are slipping away and that it seems preferred these days “to demonize one’s opponents rather than engage them, to bludgeon critics rather than win them over.” He believes, and proceeds to demonstrate through a series of very engaging — at times very funny — stories, that “[o]ur adversaries are not our enemies; the law is not a political weapon; objective truths do exist; fair process is essential in civilized society.” He encourages us “to take a deep breath, to take a step back, to try to understand how justice is supposed to be accomplished.”
Bharara appreciates that justice is one of the most elusive and debated concepts known to mankind and he denies any intention of advancing some grand and novel theory of justice. Instead, he sets out to suggest that “people will regard a result as just if they regard the process leading to it as fair and if they believe the people responsible for it are fair-minded.” Although he structures the book around the four stages of a criminal prosecution — Inquiry, Accusation, Judgment, and Punishment — it is about far more than the legal system; it is “about integrity, leadership, decision making, and moral reasoning.”
“Truth is central to justice, and the discovery of truth requires a searching inquiry,” as Bharara sees it. To illustrate Roman senator Tacitus’s admonition that “[t]ruth is confirmed by inspection and delay; falsehood by haste and uncertainly,” Bharara uses the section on Inquiry to tell several intriguing stories about “the limits of science, the tendency to human error, the importance of hard work and professionalism, and the power of a single person to deliver (or thwart) justice.”
As one of his most ominous tales of caution, Bharara revisits one of the most egregious mistakes in modern American law enforcement. On March 11, 2004, 10 bombs, “stuffed into backpacks and crammed with compressed dynamite and sharp nails,” blew up four passenger trains in the heart of Madrid, Spain, killing 191 people and seriously injuring almost 2,000 others, in the deadliest act of terrorism on the Continent since World War II.
Within hours, Spanish authorities found a blue plastic bag containing seven copper detonators and the remnants of explosives. When the local authorities were unable to yield a match of two fingerprints found on the bag, they sent them to the FBI in Quantico, Virginia. After running digital images of the prints through a database of more than 44 million fingerprints, the FBI experts narrowed the match of latent fingerprint 17 (LFP 17) to a single individual. Three different FBI examiners confirmed the match. He was Brandon Mayfield, a 37-year-old white American lawyer living in Portland, Oregon, with his wife and three children. His fingerprints were on file because he had served as a second lieutenant in the US Army, honorably discharged after eight years of service.
The FBI relied on additional information about Mayfield to confirm they had their man: he had married a Muslim immigrant from Egypt; he had converted to Islam; he attended a mosque that had received “attention” from local authorities; and in a child custody matter he had represented a member of the “Portland Seven,” all of whom were convicted in federal court of providing material support to al-Qaeda and the Taliban. The FBI obtained a warrant from the ultrasecret FISA court to conduct 24-hour surveillance of Mayfield and his family, secretly searching his home, and delving into every aspect of his life, work, friendships, and travel.
Although the Spanish authorities disagreed with the FBI fingerprint assessment and although eight weeks of intense investigation discovered no corroborating evidence, on May 6, 2004, Mayfield was taken into custody and held for 13 days on a material witness warrant. As the investigation continued, the FBI initially claimed to have found incriminating evidence at Mayfield’s home, including documents written in Spanish; a computer search revealing Spanish travel information; and a note containing a Spanish phone number. In fact, it turned out these were, respectively, Mayfield’s daughter’s Spanish-language homework; his daughter’s class assignment on how to plan a vacation; and a phone number regarding his son’s potential participation in an international exchange program.
Mayfield’s lawyer hired an independent fingerprint examiner. On the day even that examiner testified that LFP 17 belonged to Mayfield, the Spanish authorities told the FBI that they had definitively concluded that LFP 17 belonged to Ouhnane Daoud, an Algerian terror suspect. Mayfield was released, and five days later the FBI rescinded their conclusion of a match on him. On June 1, Daoud was charged with 191 counts of murder. Mayfield was exonerated; the FBI apologized to him and his family, and paid him $2 million in compensation.
“How on earth could the FBI have made such a colossal blunder?” Bharara asks. “How on earth — given the combined expertise, repeated findings, high-profile nature, and sky-high stakes — could such a debacle have happened?” An internal FBI investigation subsequently concluded that the initial examiner had “failed to conduct a complete analysis” which led him to “disregard important differences in appearance between LFP 17 and Mayfield’s known prints.” As Bharara notes, “Simply put, according to the FBI, it was problem of initial ‘overconfidence,’ ‘the pressure of working on a high-profile case,’ and subsequently an unwillingness to go back and reexamine the initial findings.”
A separate 330-page report issued by the Office of Inspector General found that the “misidentification could have been prevented through a more rigorous application of several principles of latent fingerprint identification.” While the IG did not find that there was overt bias or anti-Muslim prejudice, he did surmise that Mayfield’s Muslim associations had dissuaded FBI officials from reexamining their first conclusions, and according to Bharara “clouded their judgment in a way that caused great pain to an innocent person.”
The FBI, according to the IG, had a culture conducive to “confirmation bias.” And this is Bharara’s main point. He repeats the IG’s conclusion that Mayfield’s “background,” i.e., his Muslim connections, “influenced the examiners’ ‘failure to sufficiently reconsider’ their initial identification.” Bharara bemoans the “continuing and lazy persistence” of past blunders; the “slow-motion miscarriage of justice through a fog of latent bias and stereotype,” and the myth of “foolproof science.” He cites Judge Learned Hand’s warning borrowed from Oliver Cromwell, speaking in a wholly different context in 1650: “I beseech ye in the bowels of Christ, think that ye may be mistaken.”
In his own words, Bharara beseeches us: “Justice is never assured, but if each person in the process remembers to be vigilant, rigorous, and open-minded to changing a view, justice is at least more likely.”
After Inquiry comes Accusation. “The first precondition to making a just decision in this accusation phase is a commitment to deliberation and against any predetermined outcome.” Check your facts, check your reasoning, and check your biases. This kind of deliberation is an antidote to trigger-happy decision-making. Bharara is very worried about the “dangerous psychological momentum” that comes when investments are made and expectations are set in a particular outcome. He quotes Dostoyevsky in Crime and Punishment: “A hundred suspicions don’t make a proof.”
Bharara uses a gruesome case to illustrate the challenges he faced in deciding when to prosecute someone for a crime. In October 2012, Kathleen Mangan and Gilberto Valle, a young married couple with an infant daughter living in Queens, New York, were experiencing a deteriorating marriage. Valle rarely came to bed, preferring to spend night after night in front of his laptop computer until the wee hours. Suspecting infidelity, Mangan installed spy software and discovered that Valle was obsessively visiting websites such as Dark Fetish Network, a hive for every kind of depraved and violent sexual fantasy. Mangan gathered up her daughter and the laptop and fled to the protection of her father, a retired cop in Las Vegas. She made a report to the FBI, and the case landed on Bharara’s desk.
For several years, prosecutors and investigators immersed themselves in the world of fantasy and fetishism. Valle was using the Dark Fetish Network as a virtual meeting place to share pictures — and plans — relating to abduction, rape, mutilation, and cannibalism. He was chatting with a small group of men about torturing, killing, and cannibalizing his wife and other specifically named women. The prosecutors were particularly alarmed because Valle was an active New York City police officer, with a shield and a gun, serving in the 26th Precinct in Manhattan. Bharara’s team realized that no one had been assaulted, no one had been threatened, and no one had been kidnapped. The network was arguably just a place that attracts people with fringe appetites and desires. “Surely, they were not all felons,” Bharara writes, “at least not anywhere that the First Amendment was operative.” But he pursued the investigation because “[s]ome fantasies remain fantasies. Some fantasies graduate.”
And the evidence continued to mount. Valle had performed online searches for “how to chloroform a girl”; he plotted the kidnapping of a woman he knew in college and he visited her in Maryland; he appeared to stalk a woman friend of his wife in the school where she taught; he illegally exploited the NYPD database; he and another man negotiated an actual price of $4,000 to kidnap a woman, an amount later raised to $5,000; and he perused recipes for human flesh (which are not just “fava beans and Chianti,” Bharara throws in to lighten the moment).
At each stage in the story, Bharara asks readers what they would have done with the mounting evidence. Had Valle “graduated” yet? At this point, Bharara still didn’t arrest anyone. His team continued to dig. They planned to introduce an undercover officer to test how far Valle was willing to go, but they never got the chance. Valle abruptly told the NYPD he planned to take a 10-day vacation. Balancing the risks of waiting against a premature accusation, Bharara decided to act.
Valle was charged with conspiracy to kidnap. He was ably represented by the federal public defender’s office. The case went to trial, the jury deliberated for 16 hours, and Valle was convicted. But the story doesn’t end there. The defense lawyers made a routine motion for acquittal; such motions are rarely granted. But in this case, after 15 months, while Valle remained in custody, the judge granted the motion and vacated the conviction. In the judge’s view, the fantasy had simply not graduated. According to Bharara’s summary of the judge’s decision, there “was too much nebulous discussion, too little action, too much moving of the dates, too little distinction between reality and fantasy, and he ruled that no reasonable jury could have found Valle guilty of conspiracy.” Mangan was shocked, and Bharara’s team was disappointed. They appealed the dismissal and lost again.
Bharara remains convinced that he did the right thing. He acknowledges that it “is of course not permissible to prosecute people merely for their thoughts,” but he says he think the charges were fair and he would pursue the Valle case all over again. That’s a troubling statement in light of the fact that a federal trial judge and appellate panel found that Valle did not commit a crime. But the case offers a firsthand example of the prosecutorial process in the hands of a conscientious prosecutor.
Bharara has the most fun when he gets to his third section on Judgment, exploring his familiar turf, including trials, judges, lawyers, and jurors. He thinks a trial is “the most exhilarating thing in the world” because it places a high value on preparation, command, eloquence, storytelling, and, above all, credibility.
When criminal defense lawyer Ben Brafman was representing Martin Shkreli, who prompted public outrage for hiking the price of Daraprim, a previously affordable drug used to treat patients with HIV/AIDS, by as much as 5,000 percent, Brafman conceded his client’s deplorable personality at the sentencing hearing. Brafman told the court that sometimes he “wanted to punch his own client in the face.” That rude admission built credibility with the judge.
And when it comes to judges themselves, Bharara doesn’t pull any punches of his own. A judge “is not always a fully disinterested figure, merely applying law to facts, merely calling balls and strikes.” Judges are people too. He tells of one curmudgeonly judge in the SDNY who admonished a female Assistant US Attorney for straying from his rulings in examining a witness. “If you do that again, I’m going to have your balls!” She calmly replied, “You know, Judge, if you can find ’em you can have ’em.” Fortunately for her, the judge laughed.
Another judge, out of the presence of the jury, during a spirited exchange, snapped at a prosecutor, “Basically, Mr. McCarthy, your position is fuck you.” “No,” the lawyer quickly corrected him. “My position is fuck you, Your Honor.” Again, the judge laughed. You can see why Bharara loves trials.
Turning to a more prominent case, the trial of Paul Manafort in the summer of 2018, Bharara describes how Judge T. S. Ellis III, a 78-year old Reagan appointee, announced that “I am a Caesar in my own Rome.” Exhibiting a small dose of self-awareness and humility, Judge Ellis added, “It’s a pretty small Rome,” but everyone understood the serious consequences of the Manafort case.
Judge Ellis sparred with the lawyers, belittled them, lost his temper, none of which Bharara considers “the hallmarks of a good referee.” He was particularly tough on the prosecutors, telling them to “rein in their facial expressions” and even accused them of crying. Having received permission from Ellis to allow an expert witness to attend the trial before he testified (witnesses are routinely excluded), the judge exploded when he saw the expert in court and reprimanded the prosecutors in the presence of the jury. The prosecutors were so concerned about the impact on their credibility in the eyes of the jurors, they filed a motion asking the judge to “clarify” the situation. After reviewing the transcript, Ellis told the jury to “put aside my criticism” because this “robe doesn’t make me anything other than human.”
Bharara believes that criminal trials are an object lesson in logic, persuasion, reason, truth, and civility in sharp contrast to the current crisis in public discourse and political debate. “It is coarse and vicious and tone-deaf,” he writes.
Truth is a victim of self-interest and extreme tribalism, as are decorum and respect. The very notion of civility — and even the need for it — are hotly debated. Meanwhile, political tribes insulate themselves more than ever. More than ever, people seek out only like-minded voices, only comfortable viewpoints, avoiding challenge, debate, and inconvenient facts.
Trials depend on evidence and facts, rely on examination and cross-examination, and abhor assumption and insinuation. In a book with very few references to President Trump, to drive home his point that at trial neither side is permitted to lie or misrepresent, Bharara leaves no doubt who he’s talking about:
You can’t call your adversary a “low IQ person” or name-call in any way; you can’t argue the prosecution is political; and you can’t make sweeping biased statements, like Mexicans are rapists or that some witnesses are from “shithole countries.” The courtroom rules force truth and prohibit garbage.
It is invigorating to see a bright, accomplished, highly principled lawyer condemn Trump’s appalling racist remarks. True to his message, Bharara does it in a measured and civil manner, which serves another of his lessons: always maintain your credibility.
The last section of Doing Justice is devoted to Punishment, which Bharara believes can take on “a deep moral, emotional, and even religious dimension,” as the system seeks to achieve the goals of “retribution as well as rehabilitation, incapacitation as well as deterrence.” How we treat “the human beings we deem dangerous or depraved enough to imprison is a moral imperative for everyone, prosecutors included.”
To explore all this, he tells the heartbreaking story of the kidnapping of 19-day-old Carlina Renae White. At Harlem Hospital in 1987, Joy White, just 16 and still in high school, gave birth to Carlina. The baby’s father, Carl Tyson, was 22 and holding down two jobs. When the baby fell ill, her parents brought her back to the hospital. They would not see her again for 23 years. Ann Pettway, a woman with a minor arrest record, took Carlina from the pediatric ward and raised her as her own child, first in Connecticut and then in Georgia.
When Carlina herself became pregnant at 16, she grew suspicious when Pettway couldn’t produce her birth certificate. When pressed, Pettway broke down and told Carlina that a stranger had given her up. Carlina’s suspicion mounted, and she began doing internet research on missing children and contacted the National Center for Missing and Exploited Children (NCMEC), which solved the mystery and reunited Carlina with her birth parents. In January 2011, the case reached Bharara’s desk to pursue federal kidnapping charges, since the statute of limitations had run out on any state law violations.
For Bharara, guilt was the easy part of the case; determining the just punishment was a separate and far more complicated matter. He uses the Pettway case to examine the complexities of reaching a sentence that is “sufficient but not greater than necessary,” recognizing, as he puts it, that “we should never be under any illusion that fallible humans can achieve perfect justice in punishment.” (Unfortunately, Bharara does not apply this insight to the question of capital punishment, where a host of imperfections in a fatally flawed system has led to tragic mistakes, made all the worse because an execution is irreversible.)
Bharara and his team considered their options in Carlina’s case. Do they pursue the letter of the law by imposing a mandatory minimum sentence of 20 years which the judge would have no discretion to reduce, or do they accept a plea to a lesser charge and leave it to the judge to decide? Bharara met with a team of about eight prosecutors and deputies, most of whom voted for the 20-year sentence. (Bharara later realized that everyone on the team who had a child voted for the mandatory sentence.) In the end, Bharara authorized the milder course, citing the victim’s well-being as the deciding factor, not wanting to re-traumatize Carlina. On the tactical side, there was also a good reason to avoid a full-dress trial. Carlina was no longer a friendly witness. She did not want to testify against the woman who had raised her.
Pettway pled guilty, and the judge sentenced her to 12 years. Joy and Carl were crushed. They had been denied their child for 23 years and wanted Pettway to spend that long in prison. Bharara’s prosecutors were disappointed. Carlina was not present at the sentencing. The judge “recounted Pettway’s difficult childhood, which included a history of sexual abuse, drug abuse, mental illness, and a series of miscarriages.” “I have considered the need for just punishment,” the judge explained. “This was not a crime of greed, it was not a crime of vengeance. But it was an act of selfishness, a crime of selfishness.” For Bharara, he’s glad our system rejects the antiquated biblical notion of eye-for-eye justice, but to this day he is still not sure justice was done in Carlina’s case.
What Bharara is sure of is the urgent need to rethink various aspects of criminal punishment, including sentence length, mandatory minimums, discretion in charging, and cash bail. But he saves his most detailed and scathing criticism for the deplorable conditions of incarceration. “Prisons and jails are crucibles of dehumanization,” Bharara writes. The very dynamic of a prison “rationalizes and rewards subjugation.” We “need to humanize the conditions of confinement,” and he refers in particular to the “entrenched violence at the New York City jail known as Rikers Island,” which he calls “a broken hellhole.” Opened in the 1930s, Rikers generally houses pretrial detainees, awaiting trial, convicted of nothing and therefore presumed innocent. They are disproportionately men of color, and close to 40 percent suffer from mental illness. According to Bharara, Rikers is “notoriously one of the worst correctional facilities anywhere.”
In 2014, following a two-year investigation, Bharara’s office released a lengthy — and, in his words, “damning” — report detailing “the culture of violence at Rikers, replete with alarming findings, facts, and statistics.” The report led to a judicial consent decree requiring new policies to protect inmates; to enforce use-of-force investigations; to install 7,800 cameras; to end solitary confinement for inmates under 19; and to track all this with an outside monitor and regular progress reports. Sadly, he reveals that four years after the report and consent decree, “violence did not much abate.” He’s very disheartened and questions whether hardened cultures are “too tough to fix.” If “you’re being honest, you have to consider that what may be needed for a place like Rikers Island, sadly, is to burn it to the ground and start over.”
Bharara has written a compelling book, serious and funny, engaging and shocking. Fortunately, it is free of legal jargon and often reads like a gripping crime novel. After finishing Doing Justice, one feels like they have been in a lively conversation with a very smart, fair-minded, decent person with the experience and wisdom of having carried the heavy burden of responsibility to investigate, charge, prosecute, and recommend sentences for persons involved in the federal criminal justice system. His closing words compassionately sum up his beliefs.
The law is an amazing tool, but it has limits. Good people, on the other hand, don’t have limits.
The law is not in the business of forgiveness or redemption.
The law cannot compel us to love each other or respect each other.
It cannot cancel hate or conquer evil; teach grace or extinguish passions.
The law cannot achieve these things, not by itself.
It takes people — brave and strong and extraordinary people.
Stephen Rohde is a retired constitutional lawyer, lecturer, writer, and political activist.
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