Doing Justice: Book Review

April 11, 2019

Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law (2019), Preet Bharara. Bharara was US Attorney for the Southern District of New York (SDNY), as the seat of Wall Street, probably the most prestigious federal attorney. He was fired by Donald Trump in 2017. Interesting read that will (simultaneously with Michelle Obama's Becoming) talk most people out of law school. The book has four parts associated with prosecution: inquiry, accusation, judgment, and punishment. Mainly is is stories of individuals involved in the various phases, many of which are well known. The Preface introduces useful concepts: "Certain morns do matter. Our adversaries are not out enemies; the law is not a political weapon; objective truths do exist; fair process is essential in civilized society" (p. ix-x). "The law cannot compel us to love each other or respect each other. It cannot cancel hate or conquer evil; teach grace or extinguish apathy" (p. xii). "The SDNY ... employs over two hundred highly credentialed, mostly young and idealistic lawyers, and a equal number of dedicated staff. Along with ninety-two other US Attorney's Offices, the SDNY is part of the Justice Department. ... Do the right thing, in the right way, for the right reasons" (p. xiii). "As a young lawyer and prosecutor I pretty much always felt dumb. It was my baseline self-appraisal" (p. 62). "Tell it to me like I'm your nine-year old nephew" (p. 65). Most of the rest of this review are quotes in the book, gathering information from a lawyer's perspective mainly on corruption.

 

Part I: Inquiry. "The discovery of truth requires a searching inquiry. In criminal justice, this is the investigation, which is not only the path to truth but also the way to accountability (or exoneration). The fairness, effectiveness, rigor, integrity, and speed of any investigation naturally determine whether justice will be done" (p. 3). "Sophisticated people trying to hide their tracks use lots of accounts, lots of intermediaries. They favor cash, they falsify documents, they create shell companies and fraudulent paper trails. Often there is no record or trace of incriminating transactions at all. The's the heart ad soul of money laundering, which can be an especially difficult crime to prove" (pp. 4-5). Depending on what other facts are true, these actions might be obstruction of justice (was the intent to shut down an investigation?) or insider trading (was the trade made on material nonpublic information?) or political corruption (was the vote bought by a bribe?" p. 5). "Keep an open mind, don't prejudge, don't assume, don't jump to conclusions, guard against bias" (p. 5). In the investigative stage: "The presumption of innocence would be a dangerous standard for an investigator" (p. 13).

 

He discusses Raj  Rajaratnam on insider trading around p. 17. Long discussion on Hassan Nemazee on bank fraud beginning about p. 18, how he could borrow vast sums without any collateral, using forged signatures, invented financial institutions and fake documents; described as a "less famous version of Bernie Madoff." Stockbroker Ken Starr who fleeced Hollywood stars using a Ponzi scheme (p. 24). "What deters that kind of fraudster is the fear that everyone he might deal with will ask questions, will require some proof, will not just take his word at face value" (p. 25). Introduces: "prudent hesitation" and "responsible aggressiveness" (p. 26). Problems of confirmation bias: bad first calls, which are hard to abandon; with some interesting examples, including the FBI as a "culture conducive to confirmation bias" (p. 35). Result is wrongful arrest and possibly conviction. "Our entire civil fraud enforcement program arose from the simple question, 'Why can't we sue banks for fraud under a statute called FIRREA?' (Financial Institutions Reform, Recovery, and Enforcement Act), a little-invoked law at punishing misconduct that 'affects' a financial institution, was passed in 1989 ... It had been employed only to pursue frauds committed by other against a bank. ... In rapid succession, three federal judges agreed with us, and all over the country the Justice Department--following our lead--began using FIRREA as a tool" (p. 71). "The principles of interrogation: barbarism is not necessary" (p. 73). "Strategy beats savagery, and patience outperforms force" (p. 78).

 

"Snitches: the moral quicksand of cooperating witnesses" (p. 92). "Tattling is not attractive. It is a betrayal" (p. 92). "The criminal justice system in any society necessarily implies a moral code. Law and morality are not coextensive, but to a significant degree what a society chooses to punish is a proxy for what it deems unacceptable, reprehensible, or immoral" (p. 93). "Andy Fastow helped bring down Enron's CEO. Scott Sullivan brought down WorldCom's. Several cooperators brought down the Galleon Group's chief executive in the largest insider-trader case in a generation. Bernard Madoff's co-conspirators" (p. 94). "Lance Armstrong ... what did him in? Cooperating witnesses--eleven of his former teammates" (p. 95). "You want to cooperate up, not down" (p. 95). "The decision to cooperate is fundamentally a cost-benefit analysis, so agents and prosecutors emphasize the costs and risks borne by the defendant" (p. 98). Noah Freeman and Donald Longueuil as "money managers at SAC Capital, the massive hedge fund led by Steve Cohen" ... trading on insider information" (p. 113). "New York State legislature was particularly corrupt" (p. 116). 

 

"Apart from the clergy, there is perhaps no profession more staid than the law and no subset of lawyers more culturally conservative than prosecutors. Law enforcers have to be meticulous rule followers ... handcuffed by statutes and codes of conduct" (p. 123). Cyber crimes: "hack of Citibank that involved at least one bad guy in Russia putting sniffer software on an ATM processing network in Texas, resulting in the theft of 300,000 accounts" (p. 130). "The epiphany was to build an undercover internet forum--a website where criminals could gather, but and sell stolen information" (p. 130). "A suspicious activity report is an important lifeblood of generating leads in connection with money laundering, securities fraud, and every other kind of financial misconduct. A suspicious activity report, or SAR, is required by law to be filed by financial institutions in a central repository when they believe someone has engaged in, well, suspicious activity" (p. 132). Problem with key word searches.

 

Part II: Accusation: commitment to deliberate, contemplate alternative interpretations. Accusations are concrete; specific, start and public. Fraud at Long Island Railroad for disability and injuries, but no hard evidence; need for cooperating witnesses to outline scheme (p. 140). Investigative plan: agents fan out, serve subpoenas, surveil, search records, tap phones and approach witnesses. New York political leaders investigated: Democratic assembly speaker Sheldon Silver and senate majority leader Dean Skelos (p. 147)--both tried and convicted. Conspiracy: agreement between two or more to break a law. Use of power but also fairness and proportionality. Accountability: "Sometimes prosecutors are in a position to provide it, because the law and facts align, because evidence is obtainable and admissible, because the system permits it" (p. 180). [Plus when to walk away. Note: Comey spoke disparagingly about Hilary but not prosecuted.] In the 2008 subprime debacle: "Heads of financial institutions did what they could to evade culpability, diffusing responsibility and wrongdoing throughout entire companies and through reliance on third party professionals" (p. 184). "Accident is not enough. Negligence is not enough. Mistake is not enough. Even recklessness is not enough" [reselling of mortgages] (p. 185). "It is frustrating, enraging actually, to think that professional accountants and attorneys might have blessed potentially deceitful practices" (p. 186). "The feeling that people with power and money are harder to hold accountable, are more able to hurt people with impunity, is not wrong" (p. 186). "For good or ill, the market rewards aggressiveness" (p. 188): talking about prosecutors but could be applied to business and political leaders.

 

SAC Capital--2013, office charged four hedge funds with insider trading, plus eight SAC employee: "defiant corporate culture that ignored warning signs and red flags, that flouted norms and exalted greed, that used its compliance program as cheap window dressing" (p. 191). "Business leaders speak too infrequently about integrity. They speak about power and profit and market share and the bottom line. ... There are compliance officers and in-house attorneys and accountants and auditors, but they hold little sway with the corporate upper echelon" (p. 192). "In the shadow of most massive frauds and cover-ups are lurking all manner of enablers--people who were helpful either to the perpetration of the crimes or to their concealment. Think Enron. Think WorldCom. Think Madoff. Think Theranos. Think also Penn State and Harvey Weinstein and Bill Cosby" (p. 193). "In many places, there is a culture that is willing and even wanting to come up as close to the criminal line as possible, to maximize some perceived edge or profit" (p. 193). Plus attempts to quantify ethics. Scandal at Wells Fargo with fake bank accounts: "they were incentivized to do it" (p. 199). Attempts to discredit the prosecutor: witchhunt, bias. 

 

Part III: Judgment: Four basic outcomes: guilty plea, dismissal (charges withdrawn), guilty verdict (charges proved), and non-guilty verdict (charges defeated). Judges missing learning from watching other judges. "Truth is a victim of self-interest and extreme tribalism" (p. 251). Courtroom governed by hard rules: evidence, procedure, professional ethics. Rules are enforceable by the judge, punishable by contempt, bar sanction, or adverse ruling (p. 252). Importance of compelling stories (and good argument); e.g., greed, power, jealousy and revenge--not based on statute, but jurors understand it. Also important are strength of the evidence, competence of investigation, preparation, command, eloquence, and credibility (p. 261). More on Sheldon Silver and Dean Skelos (p. 256, more general about NY politics, p. 273: "state senator more likely to be indicted than defeated at the polls"; status quo benefits you). Martin Shkreli case (p. 261). Insider trading case: "Look, at Galleon, we did our homework, but we cheated too" (p. 266). Raj Rajaratnam insider trading, use of wiretaps (p. 277).

 

Part IV: Punishment: what a just society seeks--retribution, rehabilitation, incapacitation, and deterrence; need for uniformity versus individual justice (p. 287). Sentencing system use of numerical scores. Sentence: sufficient but not greater than necessary. Stanley Milgram (Obedience to authority) 1960's experiments to commands to hurt other people. "People would, under the mundane conditions of an academic experiment, blithely subject other human beings to tremendous pain by personally administering what they believed were high-voltage shocks. Why? Because a man in a lab coat told them to" (p. 304). Stanford prison experiment of Philip Zimbardo as guards and prisoners; guards became increasingly sadistic--prison rationalizes and rewards subjugation: "so many ways to dehumanize people in prison, countless ways to treat them like cattle. ... There is the baseline powerlessness and the perception of jailers' omnipotence" (p. 306). First prison: Eastern State Penitentiary in 1829 (by Quakers), brutal solitary confinement meant to rehabilitate. Rikers Island as a hellhole with a culture of violence (p. 308); housed more mentally ill inmates than all of New York State's 24 psychiatric hospitals. Importance of culture as Incubator of depravity. Policies seeking humane treatment considered coddling (even programs that minimize violence, improves safety, and enhances successful reentry, p. 318). Baseline tension between inmates and guards. "Certain values and ideals are beyond justice. These include mercy, forgiveness, redemption, dignity" (p. 323).    

 

 

 

 

 

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