By Daniel M. Coble*
“Do the right thing, in the right way, for the right reasons.”
-Preet Bharara, Doing Justice
The power to prosecute is a heavy burden to bear. From a simple fine to the ultimate punishment, a prosecutor knows well that the crown is heavy to wear. While it can take years, if not decades, for a young attorney to learn the ins and outs of this newfound power, Mr. Bharara’s book Doing Justiceis extremely useful as a guidebook to those who wish to begin their legal career seeking justice. Mr. Bharara’s theme throughout his book is quite simple: seek justice and do what is right. While every citizen expects that from the people who hold other people legally accountable, it is much easier said than actually done. What this book does, though, is provide a credo for prosecutors. Through stories, Mr. Bharara illustrates how a prosecutor should act in a courtroom, how they should treat defendants, and most importantly, how they should constantly seek justice.
Part I of this review focuses on the contents and structure of the book. It will serve as a reference for anyone needing to quickly grasp the larger point of the book. Part II extracts the prosecutor’s credo that this book as put together throughout its chapters. Part III is advice for the judges themselves. The final part to this review focuses on what Mr. Bharara left unsaid. While I do admire the theme and structure of this book, there is one leg of the three-legged stool that I would have enjoyed Mr. Bharara’s perspective on: public defenders. A vital piece of our criminal justice system are the attorneys willing to work long hours for low pay to defend people who have been accused of some of the most heinous crimes. Although he did not specifically comment on the public defender and the role they play, Part IV is a sample chapter of what he should have written.
I. Doing Justice
What is prosecutorial discretion? What gives one person the right to decide the fate of another? These questions and more can run through anyone’s mind in an encounter with the criminal justice system. These questions become more intense and consequential for a young prosecutor who has to actually answer these important questions. When I first began my career as a state prosecutor, I had some of the most talented and gifted mentors available. These were prosecutors who had been handling criminal cases before I was even born. It was easy to sit in court and watch them work, evaluate how they interacted with a judge and jury, and most importantly, follow their thought process on prosecuting individuals. What I did not have, though, was a guide book to tell me what is wrong and what is right.
Now, I do not begin to hold Doing Justiceup on a higher pedestal than it deserves. No book can replace the gut instinct of knowing right from wrong, but this book is so important to young prosecutors for two reasons. First, it is simplistic in its theme and message throughout the chapters: seek justice. What does that mean? Well, it can be easy for a young prosecutor to get caught up in the wins and losses, the numbers, the swelling joy of hearing a guilty verdict. But what Mr. Bharara brings us all back down to reality to focus on what a prosecutor’s job is. He could simply tell us to seek justice, but how does a young attorney apply that principle to real life? How does that new attorney know which mentor to follow, when to follow, and when to walk away? Sometimes, they won’t ever know. Second, this book is important to young prosecutors because it not only gives specific advice that applies to any courthouse, but also is filled with countless anecdotes that can make a reader laugh and shout in fury all in one chapter. Mr. Bharara is able to bring the advice he gives to real life and exemplify how attorneys and judges can err.
It is easy to tell that Mr. Bharara is an attorney and will be for life. From the writing style to the chapter layout, this book feels like a professor showing his students how to handle a trial. And it works. The book is divided into four stages: Inquiry, Accusation, Judgment, and Punishment. Within each chapter, Mr. Bharara shares his advice on seeking justice. He follows that advice with thorough and detailed examples. Each anecdote is unique in its time and place and gives the reader a better understanding of his words of wisdom. In many of the stories the author shares, he is on the losing end. For example, Mr. Bharara advises attorneys to treat judges with respect and never speak negatively in public about judges because they are judicially and ethically prohibited from responding. The example he provides of an attorney violating this principle is none other than himself. These examples build trust between the reader and author to show the reader that even someone who has attained such a lofty position (the U.S. Attorney for the Southern District of New York) is still capable of making rookie mistakes.
The people that have come into the author’s life clearly have had an impact. A young attorney can ask any seasoned litigator who has influenced their legal career, and they will surely receive a litany of judges, fellow attorneys, defendants, witnesses, and on and on. This is an important part of any legal career. Because no person is an island, all attorneys have to understand and work with so many types of characters throughout their careers. Mr. Bharara imparts this wisdom on his readers by shedding light on how important these relationships have been to him.
D. Back to justice
Each of these chapters goes back to the main theme. This is what sets this book apart from countless other books offering legal advice for young attorneys. While most young attorneys would love to have books that simplify and explain the rules of evidence, civil procedure, negotiation, etc., this book is one that a mentor would give to his mentee in anticipation of his or her new legal career. It is the talk your father or mother has with you before they drop you off at college.
II. Prosecutor’s Credo
A. Advice for young prosecutors
There are no written rules on how to prosecute a case. There is no guidebook on what prosecutorial discretion is or when and how prosecutors must use it. t can take years, if not decades, for a prosecutor to develop their own sense of what is right and what is wrong. But what if we were able to give them a guide book, one that explained in general terms what the purpose of their job was? I believe that is what Mr. Bharara has done in Doing Justice. There is no author, attorney, or judge who is capable of giving moral advice without having other people question their motives, judgments, and past mistakes. While I’m sure this author has his critics, I believe that criticism of an adviser is necessary and, quite frankly, strengthens the advice. Mr. Bharara admits throughout the book that maybe he should have done some things differently, but one would be hard pressed to find a litigator who has not made mistakes in their legal career.
It would be easy for me to call the advice that Mr. Bharara gives in his book commandments, but that is too strict (and lacks a little self-awareness). His advice forms a credo, or “a statement of beliefs which guides someone’s actions.” If you’re a young attorney and you think the word “credo” is too over the top, then use this instead: “things that get prosecutors in trouble.” What follows is a table of contents young attorneys should use if they read this book.
B. Commandments (things that get prosecutors in trouble)
The search is about finding the truth
Truth is the most important part of any prosecution. Every party has their own version of the truth, but it is vital that the prosecutor not lose sight of this. It is easy to determine what the conclusion must be and then let the relevant and convenient facts guide you there. But that is putting the cart before the horse. Follow the facts as they come, and keep an open mind where they may ultimately lead you.
Prosecutors don’t exist to put people in prison
Our criminal justice system is changing, and views on rehabilitation and incarceration are shifting. A prosecutor is not merely a persecutor. Prison should be a last resort. With the creation of more alternative courts, defendants have more opportunities to address the underlying issues that brought them into the system in the first place.
Ask questions, and then ask more questions
Things can stay in the dark if you don’t ask questions. Ask lots of questions, and as soon as you’re done, ask some more. It is better to find out the facts of your case before trial, rather than learning about the facts on cross-examination. Try explaining your case to a nine-year-old; if they can understand it, then you understand it well enough, too.
Be deliberative, but make a decision
Being a prosecutor is not easy. You have to make tough decisions that often upset multiple people. Be deliberative in your decisions. Make sure to consider the consequences and how your decision may affect the outcome. Ultimately, though, you have to actually make a decision.
Not everything is a crime, and not all defendants are guilty
Just because a defendant committed some act you disagree with does not mean he committed a crime. Criminal actions are based on statutes and common law, but sometimes you need to look beyond the words written in a penal code and use your common sense. Prosecutors do not have to be sympathetic, but it doesn’t hurt to have a little empathy. The defense attorney’s job is to make you understand and explain why his client took those actions, so you might as well get a head start.
Expect and welcome criticism
If you don’t like criticism, then you are in the wrong line of business. From victims to judges to defense attorneys, someone is going to irritated with the job that you did. Rarely is there a kumbaya at the end of a jury trial. Expect to be criticized for an action you did or did not take. Use this as an opportunity for free advice. Some criticism is over the top and personal, so learn to let it slide. Other criticism is genuine and can frankly change your legal career. Know the difference, and welcome it.
Don’t forget the victim
Sometimes, prosecutors can forget about the victim of the case. While constitutionally the star of the show is the defendant, don’t forget why this case began in the first place. Don’t lose sight of what the victim desires as an outcome for the case. Keep them informed of the case status, and, more importantly, manage their expectations. Some cases cannot be made and have to be pled out. Others must be dismissed.
C. Practical advice
What good would a guidebook on prosecuting be without some practical advice? While Mr. Bharara presents many ethical considerations for young attorneys, he also throws in some practical advice to help prosecutors win their cases.
How do you convince a jury of your peers that a snitch is someone you can trust? It is not easy, but there are some steps you need to take during trial. First, get out the bad on direct. Explain to the jury who this cooperator is and why he is in the court today. Maybe he has received a great plea deal out of testifying, and maybe he hasn’t. But don’t try to pull a fast one on the jury and try to convince them that Mr. Cooperator is testifying out of the goodness of his heart. Get the bad out on direct before it ultimately comes out on cross.
Some prosecutors are old school and enjoy pencil, paper, and fax machines. However, the rest of the world has moved on, including juries. Jurors expect professionalism and high tech equipment. Just because the senior prosecutors have been using poster boards with case law written on them for the past three decades doesn’t mean you have to do the same.
You should probably read the book for some of Mr. Bharara’s trial tactics. Over the years, a prosecutor will hone and perfect his senses in the courtroom and become comfortable in his own skin. Confidence ultimately is the grand prize. A jury can feel an attorney’s confidence, and they feed off of it. If an attorney is confident and looks like a winner, then it is likely that will be projected onto their client. Get in the courtroom as often as possible, whether you are actually trying a case or simply watching a senior attorney in his thousandth trial. And remember, trials “are object lessons in persuasion, truth, and even civility.”
III. Robed Oracles
Although judges do carry authority and power that most attorneys do not have, they are not oracles. However, they do play an extremely important role in the legitimacy of our criminal justice system. A judge not only has to be impartial but also must constantly make decisions based on the facts of the case and the Constitution. While this charge may sound easy, it becomes more difficult when facing an odious crime or sympathetic defendant. Ask any litigator, and they will give you a list of judges they do not want to appear in front of. This could be because the judge is too fair and complies too closely with the law, or because she has become hardened by the bench and forgetful of the burden that attorneys must shoulder.
Mr. Bharara’s advice for judges is straightforward and refreshing. He offers criticisms that apply to many judges, but at the same time he explains why a judge does what she does. It is hard to understand how difficult rendering a decision is until you actually do it. No matter which way a judge rules, someone is going to lose. And Mr. Bharara is able to capture this sentiment as if he has donned the robe. By letting judges know that he understands the pressures they face and the difficulty that comes along with decision-making, he is able to once again build that trust with the reader and offer important advice.
Treating everyone in the courtroom with respect can make or break a judge’s career. It is easy for judges to get annoyed at attorneys in their courtroom, but a judge should always remember that the attorney has a job to do. A judge should never be the center of attention. Their job is to control the courtroom, protect constitutional rights, and allow the jury to reach a verdict. When the focus has fallen on the judge, then they have become a part of the trial instead of just be an umpire. Judges must avoid commentary that could look biased or prejudicial. It is hard for a judge, who is also an attorney, to keep their mouth shut as they sit on their perch with an unobstructed view of the trial. But it is the attorney’s job to make sure his case is proceeding properly, not the judge’s job. Remember, a courtroom is a solemn place where tough decisions are made and raw emotions are brought to bear. A judge should stay somber and emotionally restrained.
IV. Gideon’s Angels
A. Bharara does not address public defenders
As refreshing and empathetic as the advice was for judges, this book is missing a key component: understanding a day in the life of a public defender. One of the first people that a new prosecutor deals with is a public defender, and it is likely not going to be pleasant. But that’s good. Public defenders have to fight for their client’s constitutional rights. There is something amusing about watching a new prosecutor ready to take charge of their case, only to be halted in their tracks by a seasoned public defender. (I myself distinctly recall multiple times thinking I knew what I wanted and how I was going to get it, only to be shot down and embarrassed by a veteran public defender (who I consider a good friend for teaching me then how the real world works).) While it is easy, as well as childish, to equate defending those accused of crimes with defendingthe crimes themselves, the public defender is actually defending the Constitution. Perhaps in the second edition of Doing JusticeMr. Bharara will advise young attorneys on the role of public defenders, but until then I will submit an abbreviated chapter to his book.
B. Abbreviated Chapter
Overworked and underpaid. Remember that the next time you are about to get into a heated argument with a public defender. These attorneys work extremely long hours and long weekends for the sake of their client. And they do not get paid nearly as much as their private attorney counterparts. But this job is a noble one. Since the founding of our nation, we have had the small but growing idea that even those accused of the most heinous crimes deserve representation. This idea was further developed in Gideon v. Wainwright, when the Supreme Court held that all indigent defendants charged with a crime have a constitutional right to a public defender. Any public defenderwill acknowledge the significance of this case, but they will probably smirk at you to when they remind you that not all constitutional rights are realized.
Prosecutors may find it easy to battle with public defenders. After all, most of your cases will be handled by a public defender on the other side, and you will get to know them very closely. And some public defenders, just like some prosecutors, just like some judges, can be hard to deal with. But do not start your legal career with that mindset. Know that the public defender must advocate for all defendants and their constitutional rights. I have often seen law enforcement officers, and even sometimes prosecutors, speak scornfully that an attorney could ever represent such a type of person who is so evil. Although the defendant may have committed the crime, these other actors must keep in mind that the public defender is representing the Constitution. This document is more than just a few pieces of paper strung together a couple hundred years ago. They are living it every day. Never forget that.
Seek justice, and do what is right. That is the overarching theme for Mr. Bharara’s book Doing Justice. After practicing law for many years and spending so much time in the courtroom, the author imparts a great deal of knowledge for any young attorney. While I would like to have seen a chapter focused on the work that public defenders do in our system, this book is ultimately a wonderful guide for young prosecutors who are beginning their careers. Through his stories, Mr. Bharara illustrates how a prosecutor should act in a courtroom, how they should treat defendants, and most importantly, how they should constantly seek justice.
* Daniel Coble is a magistrate judge in Richland County Central Court in Columbia, South Carolina.