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tv   After Words Preet Bharara Doing Justice  CSPAN  May 5, 2019 11:01am-12:01pm EDT

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southern district of new york. he's interviewed by senator richard blumenthal of connecticut. "after words" is a weekly interview program with relevant guest host interviewing top nonfiction authors about their latest work. >> host: hello. i'm richard blumenthal, united states senator from connecticut and i'm really pleased and honored to be here with preet bharara, former united states attorney for the southern district of new york and the author of a wonderful book, "doing justice." and i may say in the interest of full disclosure that i found this book to be really remarkable in its inside, it's readability and its profound ideas for not appreciating but also improving our public discourse. i want to ask you right off the
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bat, how did you come to write this book? i i know you thought about it aa guide initially 84 other prosecutors, why you are serving in the southern district of new york the talk about why you wrote the book. >> guest: it's an honor to be with you and to be interviewed about the book by someone like you given all the jobs you've had. you've had them all in law enforcement and incumbent so thank you. as i said in the preface of the book, my initial thought after i'd been used attorney for a few years were to jot down some of thoughts about how young folks or idealistic and are smart folks have gone to the best law schools but haven't applied their common sense and judgment to delivering justice to the community. what some lessons might before then. then i had this thing where i was fired by the president of the united states and i had more time and again to think of some of the stories i could tell based on the cases i oversaw and
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i did personally, maybe have larger lessons. the book ends up being for folks who are wondering, is it a law book am not a law book? and has a a very serious legal title on the cover, it's really for everybody because the issues of what is truth, what is the earnest, how do keep an open mind, how to discipline folks, how do you make sure you rely on expertise or evidence, , we alws making judgments about things. as i say at one point in the book about judges, we've all been judged and we both had judgment of other people. if that competition in business for an sport or the kind of activity where you have to make a a judgment about somebody else, you understand the judging is about. the book is really, told through stories that i oversaw in criminal justice but really it's about decision-making, moral reasoning, how to become a better person, how to do the
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right thing, whether you're a person who works in a a schoolr a business or a factory or a u.s. attorney's office. >> host: i think that's one of the remarkable features of the book is that something to say to such a broad array people, obviously any of us who are lawyers but also to nonlawyers, to ordinary citizens who have an interest in our criminal justice system and improving. you come to this book with such a depth of experience as an assistant training attorney for you became united states attorney, and then a legislative aide to senator schumer. you really bring a breadth of experience, in the political world, legislative world and that the prosecutorial world. i want to come right to what i found, one of the very significant abiding themes of the book, which is that people
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do justice. the law alone cannot do justice. when do you think in the course of your career you begin coming to that conclusion? >> guest: in a way that were mature and default until much later in life but as i cite in the early part of the book when i was 15 i got an inkling, this was about i was never good in sports but i did two of the kinds of competition including participating in speech competitions. there's a category of speech competition still to this day in high schools around the country where you deliver a speech that was written by someone else called defamation which is sort of the nerd version of covering someone else's song. i was 15, a software of school and it delivered a portion of a summation given by clarence darrow back in the 1920s when he was representing again man named henry suit. he was a young black man who along with his brother was defending their house and a suburbs of detroit back then.
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a nice suburb of detroit were a lot of white folks thought we can of black people here. they ms-dos idaho and a shot was fired in defense of the house and a white man was killed in henry went on trial for his life. that's the bad news. the good news is he has clarence darrow, one of the foremost defense attorneys in the country, maybe ever forced offense. he talks about the plight of african-americans in this country and talks about the law and makes his defense base of legal principles of self-defense and as you might imagine, but he says the law has made -- talk with african-americans, but man has not. what has been done? not what it's a london. as you know, you've taken an oath to the constitution and he introduced bills, you laws, you're a lawmaker. we are a nation of laws, not me. that's incredibly important principle we teach our children in civic classes and also law school but we need something out when we say only that, and that
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is we can of well-crafted laws, by statute, nice constitutional provisions of the people who are responsible for enforcing those laws deciding how to exercise their discretion, if they are not good and decent, then you have a problem. that was best encapsulated another part of the summation where he said the matter what laws with fast, no matter what precautions we take unless the people we meet our kindly and decent and human and liberty loving, then there is no liberty. freedom comes from human beings rather than from laws and institutions. >> host: the law really is dependent on good people to enforce it, people with character and value and judgment and decency and i think that comes across so strongly in the book as well as the i think you call it the ocean of discussion. >> guest: it's interesting to this conversation with you. i did an interview via united
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states sitting senator that you'll pass a law and you voted on many, and you can't have every statute be 75 pages long. some of them are but the matter what you do in order to reach a compromise with our colleagues across aisle, even within your own party, there are going to be decisions that prosecutors have to make a defense lawyers have to make an judges have to make where decisions go this way or that way and then you rely upon the goodwill and good faith of good people to carry out congresses content but also to make sure the spirit of law is to help as well. >> host: i tell my colleagues and heights that it ad nauseam on the floor of the united states senate, the best laws are worthless unless they are enforced, and last our enforcers are given the resources they need, less what are good people do the kind of work that you did. that brings to mind also another remarkable feature in this book. you really tell it in stories.
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it's not in generalities. you illustrate these points so vividly and so dramatically in the stories you tell. i want ask you to talk about one, eric gleason, as you say, talk about clarence darrow, criminal defense lawyers don't have a monopoly on fixing miscarriages of justice or writing wrongs, which i think is profoundly true about prosecutors, that they can really fix ms. characters of justice. >> guest: one way, the exercise their discretion not to bring a case. there's a chapter what talk about that. the case of eric gleason, that's when most inspiring things that i i had very little do with. the book is not about me. it's about these heroes, of the types i'm sure you oversaw when you had the same job who do the
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work, you don't go on television who were not in the newspaper articles and to try to make their community and the district better and safer. one day this gentleman, , eric, who had been prosecuted by the bronx the a's office 17 years earlier. he writes a letter and it's not that uncommon of a letter in which he says i'm in prison forr a crime i did not commit. he sent the letter to prosecute him in office who is long since left but it didn't go in the trash because there's a long time investigator or macabre in my office named john about it was great that in many, many ways, now retired. he once told the person who takes in the mail if you receive anything -- thousands, it's hard to discern what is real, what's not. he said if you have sent a letter about a murder, homicide, that's what i do, send it my way. one afternoon john o'malley read this letter from guy he never heard of who said i'm in prison for a crime that i didn't
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commit. he's reading the description and he notices it's in a particular street in the bronx and he thinks to himself, i think i heard about this before. all good investigators have steel trap mind. an encyclopedic knowledge of not just getting senior but the cases he been involved in. he realizes what is being described in a letter was very close to the homicide or attempted homicide that he heard the confessions about trump to make other people a few years earlier. he reads more and decide -- he could've put it to the site and said this person had a defenseless and a trial and an appeal that was rejected, i've got better things to do on my own cases turkey didn't do that. he decided to investigate further. he ended up over time talking with people who had flipped and had confessed to this crime. founded similar. picky try to get more documentation on it and longs for sure, people after the book to get all the twists and turns and details, but he ends up believing -- we don't want to
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spoil it fully. he ends up going to visit eric in prison at sing sing having come to the conclusion. he told me and the chief about it. he's innocent. he goes and the season in a waiting room and the guy can be forgiven a little bit for being certainly and first thing he says to john, when dede said she? the first thing said his who is after you? forget the surliness. john pulled afloat up as the du write this letter? eric changes face and said i did. i'm john and all. i'm from his attorneys office, southern district of new york and i believe you and ugly your innocent and of how to get you out of here. at which point eric felt under grant and began crying. it's not just a simple as that. snap your fingers because one guy in some of the office thinks you're in prison for crimes you haven't committed, you get out. he had to file an affidavit on
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behalf of the defense. work with defense lawyers and a turnout by others have been convicted of crimes that evening, the murder of a delivery -- livery cab driver in the bronx and they're also exonerate and set free. it's one of these stories that when i i tell it in greater del i think it is more force if i'm talking to a group of cops a group of other aspiring law students than any statistic you can site. you explain that it took the work of a good person like john o'malley what other things to do who didn't have to spend months of his life. by definition implicating sort of fellow law enforcement agents in something that didn't go right. eventually justice can be done. >> host: this case was one of the number where, in fact, you did exonerate people because you paid attention to the innocent,
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the wrongly convicted, as well as putting a lot of people behind bars, sending them away because they were bad people and they did bad things. >> guest: that's an important part of the job. people forget and watch a lot of movies and tv and the think the prosecutors job is is an people to prison. that's not the prosecutors job. the prosecutors job is make sure justice done and that means their freedom is taken away because a judge determines that to be the correct thing to do, but sometimes that means walking away from the case, hoping other people get out of prison because they don't belong there. that story enabled me to say based on the concrete example and there are other examples that we need to be taught to run just as fast to exonerate the innocent as we do to convict the guilty. >> host: that story had particular resonance for me because i served as united states attorney as you did. i served in connecticut, a much smaller office but then after i
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left the office i was asked by the naacp to represent an individual in florida who was on death row, wrongly convicted, managed to show he was wrongly convicted. he spent as did eric, a lot of years in prison, but as a member of our profession we had a duty and a responsibility to do justice, larger than just winning cases. the other reason i felt bad, and this whole book is quite remarkable, is that as you said, you give a lot of credit to the people who worked with you and maybe in terms of title worked for your but clearly you had a very collegial relationship with these professionals. they really are professionals who deserve our admiration and respect. >> guest: particularly at a time like today, not to get
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political but there's a lot of denigration of government service. we have this long shutdown which i blame all of washington for that at its politics which i dt fully understand, but what he didn't like is when certain people in certain quarters didn't really care. there were government workers who were assigned the name, you know, nonessential when everyone is essential, and didn't seem to honor their service. people who every day whether you're a postal worker or from my experience in u.s. attorney's office, they could be doing other things. they could be making more money. they could be bringing home or resources for the family. they could be working less hard. they come into the staff, investigators, the analysts, the assistant u.s. attorneys, , everyday facing really, really difficult work and sometimes depressing work because you see the worst people have to offer when you're doing criminal prosecution company do because
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they are idealistic and want to make the world better. all the credit goes to them, to my mind. i use free from time to time, i've tried as much possible to get out of their way and let them do the good work. i thought it was important for people to understand that there such good public servants around and get to know them in detail and by name. because ordinarily it's only the head of the office who goes on the indictment or the pleadings and two announces the case with the rest at a press conference. we would be nowhere without all those good men and women. >> host: i think readers of this book will appreciate that some of the denigrating comments about law enforcement, whether it's fbi or local police, that come from certain people in certain quarters are totally unjustified because these are really dedicated professionals who keep a safe.
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>> guest: they are. and the other thing, another theme in the book, brings into reality another to see on television is consistent with this idea that prosecutors are supposed to do justice and not just notched victories on their belt. but the way you go about serving justice is important. the monitor i recite in the book over and over again that i heard mary jo white say, and i could say south meck i could was, don't have one job, do the right thing in the right way for the right reasons. all three of those things are important. it's important to do it in the right way. when you also have people suggesting that you're supposed to rough up witnesses or torture people to get information from them, that's not right and that's that moral, but maybe even more effective argument with respect to this people is it's not effective. there's an entire chapter on interrogation and how you get information from people. i think i say something mildly obnoxious like in the real world
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where testosterone does also in the streets like a river, people understand cops, , fbi, dea ages can cia analyst can you name it, they understand the way you get information for people is by building a rapport with them and by having them think they're talking to someone who cares about them, and as a human being. not by weaving at bats around or by torturing them. if you want real good true and honest information, there's an antidote i tell, a former cop and there was this debate over whether not the fbi should begin videotaping interrogations of people in custody. when you think about this, he said, i'm not sure how i feel about that. i'm not sure the jury would like what it sees. you might think that meant he was concerned they would see agents and cops roughing up witnesses. it's the opposite. jeannie focus on terrorism cases sometimes turkey said i don't don't want it to look like this guy who tried to plant a bomb and kill americans, i'm offering
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the sandwich, getting coffee, i'm asking about his family. how is it going to look? on doing that now because i think is my friend. i think he did very, very bad things and should be a price for that, but if i want to find out who is co-conspirators were, find out what the plot is and find out how to keep everyone safe, and that how we have to be with the person. that's a very important myth to explode. >> host: i i thought that chapter was enormously important. as a you a stint i got to know john mccain pretty well and heard him talk about torture and how it is totally ineffective, which is why he as a former resident of war opposed waterboarding and other use of force and threats. anything some of the stories you tell, for example, the one about the police or agent who was interrogating i think his name was sameer and he brought in,
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lebanese food as a means of showing respect really to use that word respect. >> guest: some of the way to somebody's heart is through their stomach. there are a number of stories in a related chapter on cooperation. the question always, how do you get somebody to do what is in the best interest and help you convict of the folks? this is a story of jimmy who was a longtime dea agent, really, really smart person and as you see, it's not just about brain smarts which yet plenty of but also making a connection with people. the best interrogators, agents, investigators know how to make a connection with somebody. there was a time drug trafficker who was arrested with seven kilos of heroin and jimmy thought this will be a big deal cooperator if he flips at some point. he had in his head, i think the gentleman was lebanese as you say, he's not going to like the food he's getting at the
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metropolitan detention center in brooklyn. so we had this thought he would go to a food truck, a middle eastern food truck, , he was fit in around with the defendant and he would just bring him food and he would eat it and he would see that the jail issued ohlone and cheese for whatever it was, sandwich, was not going to cut it for him. he silently ignored the kebabs the first time. the second time, the third time. eventually at some point as jimmy tells the story the defendant looks up and says what do you want from the? they had a moment and he ate the food, which is not to say it was just the food. he had done some thinking, cost-benefit analysis for himself, but those kinds of things make a difference. as jimmy put, it's a sign of respect. if you bring food pictures from the home and that's a sign of respect and i respect and sometimes been be reciprocated. >> host: you talk about also i think in a very meaningful way
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the care that has to be taken with the cooperators, the open mind that you need to keep and the corroboration that you need to give them. maybe you can talk about that? >> guest: this whole issue of cooperative witnesses which some people up and looking for first time through the lens of the special counsel's investigation and my former investigation into michael cohen and what does it mean to flip and his lips and white and is it moral? as you remember, you do it and its bread and butter especially mod cases. you get this person on a charge and they realized it's good for them to flip against somebody else. but it's an odd business to turn one person against a former cohort and you need to be careful because they have incentives to tell you what you want to hear. you have to cooperate what they say. you just have to -- there's lots of pitfalls and a lot of areas
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of quicksand patch had to be very, very wary of. i quote my chief of organized crime who would give a lecture to the rookie prosecutors about how to do with various aspects of the job and he would give a lecture on cooperating witnesses. he would say look, you are not allowed fall in love with your core operator. it seems like an odd thing to say that is not so much because the witness of using a a cooperating witness is one day it's the united states versus joe, and he's the defendant and he's engaged and let's say a rash of violent robberies. but you know he didn't act alone. on day one and a day to your spending all your time trying to figure how to convict a person because he's a menace to society. one day his lawyer calls up and says joy can give you people that were higher up in the food chain of the robbery gang. all of a sudden joe who decides to confess all the sins and admit guilt, now he's your ally. all of a sudden he's gone from being some of you trying to convict to somebody who will
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help you convict these other people. in that transition a couple of odd things happen that you have to think about. one is they suddenly go from being sort of the name on an indictment and a person who see only through the evidence of your wiretaps and witness statements and maybe surveillance cameras, now did become a fuller person. the prosecutor begins to see maybe they are more than just the sum of their crimes. even more dangerously, that's a good thing for some it becomes human eyes of the dangerous part of it is you kind of start to want to believe what they're saying because their ally and trying to get the rest of your job done. there are moments of humanity that i didn't expect or appreciate that i would before it became a prosecutor. but also moments of risk we have to guard against it. >> host: you have to guard against the cooperator who just wants to sell you what he thinks you want to hear. >> guest: very much so. >> host: and someone who story
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will fall apart at the witness stand when he or she is impeached because that a is on your face. and also can into great injuste that that person simply wants to exculpate himself without really justice being served. i think that brings us to another area of decision-making as a prosecutor that i found very powerful in this book. the decision about whether to charge someone. as u.s. attorney people sometimes asking what's the most difficult part of your job? i tried cases the u.s. attorney. that was tough. i argued case in the court of appeals often difficult, but the toughest decision, the hardest part of my job i felt was always whether to charge someone. you make this point in the book that once someone is charged, even if they are eventually acquitted, their life is changed
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forever. i had the feeling that you took that part of your job there very seriously. >> guest: you have to. the book is divided in four faces. all augustine, are required a lot of attention and understand that they are distinct phases. your to do that with an open mind and a fair-minded that after you've done your investigation, hopefully you have not prejudge what he will bring a charge, then you have to decide in the face i call accusation, do you bring the charge are not? there are various reasons why you might not. the most obvious is investigation didn't yield any evidence. if someone says my neighbor burned down my house, you have to investigate because it seems a good-faith complaint and tip, you research it and investigated and is the evidence. that's easiest case. it's a a luxury to have an easy case like that. obviously you don't charge because nothing linked that person to the burning down of the building. it wasn't an arson. then and yet cases as i describ,
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categories of things that are so low level that depending on what resources are, depending on whether not theirs discriminatory aspect to it, maybe you don't bring that category of crime at all. example i give is subway turnstile jumping. there's some controversy about that keeping of whether or not you believe in the broken windows zero tolerance theories of policing of law enforcement, much in debate now. a lot of people in good faith on that think it's not a good idea. that's another category. there can be yet another category of the case where, and this may be interesting even your position and in my positi, something i talk about with my students who i teach at nyu law school. sometimes prosecutor exercise their discretion not to bring cases, to enforce certain aspects of the law even though congress has passed it. so, for example, i don't think we get a lot of grief for this,
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it is a federal criminal statute, written in the statute then mere possession of certain quantities of narcotics not just a state offense, it's a federal offense. in the southern district and i'm guessing most of the places we've only brought narcotics cases if there's a distribution or intent to distribute. if you can't somebody who is the nothing except possess some quantity, , we would never chare of those. i don't know how that comports with separation of powers are prosecutors have to make judgments and decisions about those things. look, a great controversy in the last june was the question of how do you enforce the law at the border? must you enforce it in a particular way so you separate parents from the children? i don't think so. it's an overreach. there are all these decisions you make about walking away and then of course there are cases where there's a technical violation of the law and this is hard to explain, but for whatever reason no one has ever
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before been prosecuted under in the circumstances under that provision. and then it's an interesting question of what's there and what's not there. the law is technically on the books. there's a technical violation of the. people talk about the logan act which is whether people can conduct their own foreign policy and don't think there's ever been a successful prosecution of the logan act of the people talk about and the question then is, if you all of a sudden have a case where someone you could make out the elements of a violation of the logan act, after scores and scores of your a never prosecuting that can is a somewhat unfair? those are hard questions. so yes, there's a lot of dilemmas surrounding whether or not -- >> host: you innovated in some areas, talk about financial crimes. you use some of the ferris statute which you sought to
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broaden accountability in the financial area by using the statute in a very innovative way, again one of your assistant step forward to bring cases and hold accountable people who did wrong. >> guest: with this conversation. they also do support and love that is defensive. when law enforcement agencies or other agencies get sued in federal court, it's a civil division, relevant office who defend but there's also an affirmative docket and their cases civil rights cases, brought cases try to enforce the americans with this will act and we talk of whether we can expand our enforcement to financial front. we had a discussion one weekend. to ask what kinds of tools are there and there's a thing called false claims act which we been using for a long time, fairly well-known which was passed during lincoln's time to there at waste, fraud, and abuse of
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government. there's another most recent act to sue fraud on a bank. the question was, what is the bank acts fraudulently, doesn't of impact on the bank? nobody had taken the position before even though plain language of the statute is very clear, and two, congress. that obviously the bank could take a fraudulent action and, of course, that would have an effect on the bank and we didn't think of as much of a stretch even the people had not done it before. the same way my predecessors had used wiretaps in connection with training cases, nothing prohibited, securities fraud is an appropriate predicate for wiretap but it did so would you think it for the first time. we brought these cases and in short order multiple judges said the plain language allows it even though the bank said it was never meant for that purpose. the court disagreed because the language was playing amid some ability to go after financial
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institutions under civil statute. >> host: i want to talk since on the financial crimes area, about a concern that i have had and i i shared it with the forr united states attorney general eric holder, that corporate culpability really has to be and on individuals in the corporate structure, and whether it's the volkswagen case or some of the financial crimes or now the other product liability cases that the corporations need to be held responsible, but so do individuals within those corporations when they of knowledge and still allow an unsafe product whether it's financial product or an airplane or a car to go on the market or i don't know what you have some thoughts on that. you talk about that in the book.
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>> guest: i couldn't discuss every case in the book but we brought to my friend breaking cases against auto manufactures, against toyota and general motors. in the case of toyota, there were individuals that may have been chargeable. toyota is a foreign company and not amenable to compulsory process. at the end of the day it was going to be very, very difficult to prosecute some of these individuals at toyota and also get the report reform with onee changes we wanted in the college and in the way they report safety violations to nhtsa under the department of transportation. so we had to settle for something a little less than that. i appreciate that there are folks who think that the best deterrence is to charge individuals and then garden friday of case i think that's true. there's also a role i think for more generalized corporate prosecutions. >> host: you charge individual for fraud, accounted for the whatever else and that
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it has a deterrent effect on his colleagues who say there but for the grace of god go i. i'm not going to do it. that may or may not be so. you also hope and pray that the corporate leadership in that place and in similarly situated compass was that i do want end up like that company, so we need to reform our compliance programs. we need to add complaints folks, changer software, but they don't necessarily do that. i understand these are controversial for sometimes the best approach is to begin charge individuals but also come up with an overall resolution like we do with toyota and gm with a enormous fines. part of this was because the maximum fine of think that was possible through department of transportation relation was like $16 billion which was a drop in the bucket for these folks. we get giddy when doing dollars plus for each of the scuppers and also a commitment to
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revamping their security procedures and notifications to regulators which you don't necessarily get just by charging individuals. >> host: part of it, we talk about corporations, his culture. i loved the line in the book that i think came from one of your assistance about one of the hedge funds that we did her homework. culture is enormously important for anyone of value. >> guest: it's important for us to do. it's important for u.s. attorney's office. it's important for journalistic enterprise. it's important for a school. people ask how can these guys are committing crimes? i think it comes to culture. an entire chapter in the book which might seem odd in a book about legal things about culture. i thought it was relevant to answer the question how come some people can avoid the prying eyes of the fbi and the dea and
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iris or whoever else? because it could culture. in connection with the hedge funds you mentioned, our member asking the question, is the fraud and the criminality so pervasive if we bring a case against the entire company? i remember asking the question, how did you make sure the culture was good? i got the anti-osgood, the other complaints official who went to grade school and we have this compliance manual, a number of people and the said that's all well and good here i sit, digit in example of the head of the firm ever in email, in a speech, in a toast come at a dinner, in a memo to the office ever upon bringing someone in and on boarding them ever say anything about how integrity is important? ever utter those words ever? maybe you might think it's
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lipservice and it doesn't matter what i want to go, was it ever said? the answer was no and that was a place that had a lot of problems. i think it's too facile to say those things are irrevocably intertwined with each other. but those things matter. it's got to be important to sometimes a basic things that i often would say if the only time you ever told your parents or your child or your spouse i thought he was a first moment that you came upon them and you never did it again, even though you might think it's obvious, you are not going to be in the relationship for a long time. the same thing is true in cultures of institutions. we had to see every day or as often as a good, your job is to do the right thing. not just to get convictions. people in other institutions need to say integrity is important. i tell the story, i spent a lot of time talking to does a student, the future of the country in business and companies.
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i had a student raises hand at harvard business school and say it's interesting you talk about these things because this past summer i interviewed to work on wall street, i interviewed with ten firms. of those conference, only one ask me any question that made it appear that they cared about my integrity or that they wanted me to know that they cared about the own reputation of integrity. one out of ten. this is in the midst of all the insider trading prosecutions and all these other criticisms. of the country leadership skills are important but the idea that you don't spend a look at a time when bring somebody in because that's the gateway, when you bring somebody in to care about their integrity and make sure they're not at a risk to the books. the what you need to talk about it with people when you're from people like me, you and your former job i'm sure, there's a nice states attorney will talk about rule of law, i would with the audience i would say that's important.
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it's also important -- >> host: this point it was important because you show it in the book with real stories about culture and about prosecution and how the culture led to the downfall of the institutions. i think that, again, we might call them war stories, but they're very, very important. i want to jump to the two last sections and then will come back. as you say their four sections of the book and one of them is on the trial and you talk about judges. i think this section is enormously important. you shot judges make a difference in achieving justice. you talk a little bit about the good and the bad. the reason why mention it is because i'm on the judiciary committee. we are now approving as an
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institution, i'm voting against a lot of them, nominees who will serve their lifetime. they are young. they have distinct ideologies and they lack, many of them, any trial experience at all. maybe you can talk a little bit about the role of the judge as you have seen did and at the next difference, and why some trial experience is important for judges. and why life experience is important and also about for example, you have very astute in the book said district court judges, the trial court judges never see of the judges at work because they don't go into somebody else's courtroom. >> guest: it's all true. i begin the chapter with a story and all -- i said bring into some function a very well-known hollywood movie director. it was steven spielberg or out
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of know why captain hidden in the book but it was steven spielberg and personal it was while i was talking to steven spielberg. he did not what was. yet some medicine understand as prosecuted of some sort. i don't know why he got into the subject of how to judge -- how judges get picked. i sit in the southern district of new york in the magistrates court there's a wheel. multiple reels and they are octagonal and they are old would pick when you go in the grand jury presents, present the grand jury indictment, they turn the wheel and to take out a card and in the card, in the envelope is a card with the other judge. he was so taken by this he said there's an actual real? i suggest. almost a second he says, i could imagine a tv series or a movie about that fateful moment of what judge you get. i didn't know that ever happened but it goes to your point. the reason i start the chocolate that is it so consequential
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picky think it should be. it shouldn't matter if you have what judge. but if one has ever practice law knows that you can tell an awful lot. we used to do a saying which maybe i should not fully confess, on certain cases we would send the lucky guy was a lucky woman to go for the wheel out because the lot matter. at a minimum you would know how long the trunk was going to take the you would know if you can tell that a lot. you would know it would be a pleasant fixed-rate or not because the judges, they are masters of the courtroom and there are all sorts of ways a a judge, and mostly they don't. judges are people, to you, and they can have bad days, , to coe and they can decide they don't like the governments case and a little ways what they can decide they like the governments case
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too much and they can treat one side like the class pet and the other side like they don't like what they are saying. they have enormous power, not just invalid promotions but also in sort of putting an idea in the might of the jury. almost every story in the book are cases i was so. i talk about the paul manafort trial where the judge got some general is criticism for maybe criticizing the prosecution too much in front of the jury. it's incredibly important. one way to make sure that justice is done is as you say and it's an important role you have, and i was -- is to make sure the judge is putting a part ideology which is a separate question that becomes more troubling overtime, is basic confidence and interest in how a court rules there are some people who are geniuses and they can understand how to do everything i guess without a ton of experience but generally speaking that's not so. what's an alarming watching as
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an alum of that committee is seen the degree to which there are people who have been deemed completely not qualified by the american bar association not based on ideology or philosophy, but who just don't know anything about how courtroom works. and you know, , boy, if you have judge who doesn't have the first clue about how to control the courtroom, about how to make sure that argument not been made, to make sure you're not letting the jury get poisoned by inappropriate arguments, that makes a world of difference whether your defense or the prosecution or civil litigants for that matter any case. nothing could be more important. >> host: a judge can have enormous impact by an aside or a denigrating remarks as happened with judge allison and amend for trial, and that's in part because as you say in the book, the most important thing that anyone can bring to a trial is credibility. if the judge undermines the
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prosecutors credibility, the jury is going to take a signal from that tragic the jury as you remember, hanging on every word of the judge. the judge is the figure, where's he wrote come has a kappa, sits higher from everyone else, everyone stands up when the judge comes in the courtroom. i do extensive when you want to address the court or the judge. there is an enormous guilt and and that's good because people need to understand the importance of sobriety of the occasion. it's the judges was in every witness, that you swear before the judge to tell the whole truth. the judge has enormous power and can abuse it. >> host: the other part of the section on the trial but i thought was very, very interesting, you use it as as a kind of metaphor for our public discourse. because it is a search for the truth. you can't hurl insults. you can denigrate people with
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sort of personal injury. i was struck by that because often i think the courtroom is a pretty rough and tumble place. it can be. >> guest: not compared to cable tv drama made you could talk about that thing which is also very insightful. >> guest: for the lawyers and nonlawyers alike are watching, it has become passé and maybe deserved to maligned everyone knows lawyer jokes and our profession often deserves the ridicule and complaints that we get. but in modern times i think a special class couple of years, three, four, five years or something to be admired in how lawyers deal with things. and especially in my experience from justice. lots and lots of problems obviously, but when you go to the basic issue how to resolve a dispute or how to persuade someone to your point of view, what you have i think too much
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in society as you succumb you to problems. one, when people to engage the yell and say you are ugly or your fat or there's what about his and all sorts of non-logical arguments they got one that's very mean-spirited and terrible and it affects peoples opinion of the whole process. what's even worse i think in some ways is the other problem, people don't engage with other site at all. you have your view about tax policy. you have your view about foreign policy, healthcare, whatever. your view interview and the only people you'll ever hear from or follow on twitter or listen to an television people who have your exact same point of view and that's it. both of those things are anathema to a court of law. use magic of the defense or the prosecutor wendy didn't like the argument made any of the second put their hands over there is as if they're saying a nursery rhyme or something and didn't pay attention. it is your obligation under the constitution to represent.
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you have no choice but to listen and engage. and to make your points to persuade the jury, your point of view. when you do it as you say, you can't do it with a broad brush. you can't do based on hatred or cynicism or racism or xenophobi xenophobia. imagine an immigration case you're having argument about an immigration crime and people were allowed to say things like mexicans on rate this as a general matter. people are allowed to say s-hole country. seems that pastoral care in modern dialogue. the final point is the jurors are admonished everyday to do what? keep an open mind even while the debate is going on. the one most interesting way to me you can get kicked off a jury, you are late or violate the judges rule, but if you choose not to deliberate, if you go into the jury room at the end
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of the trying to my mind is made up, i know what i i know, i saw the evidence, not guilty guilty and you don't deliberate, there's a legal basis for being kicked off a tree. imagine a society or to have the full benefits and privileges of citizenship, there was some obligation to talk to your fellow citizens who disagreed with you and do it and respectful way, i think would be better off. >> host: before simmons even chosen for a jury they are asked by the judge do you think you can listen to your fellow jurors and take their views into account, and use that word listen in the book. it's a very powerful way. the other part of the book that i think will be illuminating for a lot of folks is the emphasis on the rules, talking truth telling and about seeking the truth. the rules that exclude certain evidence entered are also told you can't read about this trial. you can't talk to relatives
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about it while the trial is going on. you have to focus on the evidence that is presented in corporate sometimes have no to our frustration, prosecutors are barred from presenting certain evidence, even confessions that are ruled admissible. the rules of inadmissibility i think are important. >> guest: it has come directly to the question of guilt or innocence. people would be surprised about how many things, not just a bad search, there was a bad search by cop and you surprise the evidence, , people see moves understand that but there's a paradox. trials about openness and truth and transparency but they are done through a series of concealment. we can see all sorts of things. we conceal from the jury most circumstance of what this person ever been guilty of a crime before. we conceal from the jury what the party affiliations of the fiddler is in the prosecutor is. we conceal what president
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appointed the judge. we conceal from the jury what other people may have done in connection with the crime that could impinge on the question of guilt or innocence on the part of the persons on trial then. you do that in the away you sometimes have exams. you can sue big entities so people can focus on what's important, only in what's right and proper to have before you. there's a lot to learn from the trial process. >> host: let's talk about the final part of the book, which is sentencing. i always felt when i was a federal prosecutor, i also served as state attorney general, but i always felt that was in some ways the most consequential part of a criminal proceeding, and very often the prosecutors abuse carried less weight there then maybe other parts of the call. maybe you can talk about sentencing.
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>> guest: it is actually called punishment about sensing and all sorts of punishment in regular life, too. from granting the children. punishment is really, really hard. i seem to book one reason i i never aspired to be a judge is it might suppress some people given we would advocate ranges the punishment for people to be prosecuted. the idea i would wear a robe and decide what the perfect and chest since would be for this person whether it is 70 months or 78 months and that eight-month differential which seems just a few months difference on a piece of paper on the sheet you fill out, the judgment form, that is eight months of someone's life. a lot of things can happen. it can mean saying goodbye to her father and mother before they pass away. i don't want to do that. our system, i know congress has struggled with it mightily and courts of struggled with it mightily over time. punishment is a very difficult
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thing to get it right. you have two things that conflict with each other that are both good faith principles you care about. one is uniformity here it should make a difference if preet bharara gets arrested in maine or gets arrested in san diego for the same crime, same criminal activity. shouldn't matter what color you are, what your gender is almost thing shouldn't matter. so congress developed the sensing guidelines and to try to impose some rationality so the people would have some sense there was uniformity and fairness. on the other hand, you can't possibly do in every case proper justice militia look at the individual and the noise of things that are unique about that particular case. individualize justice and uniform justice sometimes clash with each other when you talk about sensing. it's a very, very difficult thing that i think is another reason by the way you want judges who are very, very thoughtful and have perspective
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and understand the consequences of the disease. every judge i've ever talked to said it's a most difficult thing they do and it's hard to know how to get it right. probably you can figure out the ways to make it more fair. >> host: the irony is that congress is moving in the direction of criminal justice reform and limiting some of the mandatory minimums. ..
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even though did this to him. he told the story that mark anthony. there is a lot of discussion about rules and laws and all of
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that. the things that are really special they transformed the person that victimized him. i was so inspired i ended the book with it. so people will want to read this book the quote before his execution. i want people to read the book and go to the end and what he has to say about it. he was put to death. what he said is so powerful and of the justice system that can bring about redemption and grace. since we are out of time i have
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notes hear, yes, lawyers take notes. >> you must be a real lawyer. this could take us another three or four hours. that's the good news because people could read this book there is so much to learn from it. i would like to thank you. >> it's an honor to be here with you. thank you so much.


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