Thursday, April 25, 2019

Book review: Doing Justice by Preet Bharara

A book with a blurb that I agree with:

“Simply, utterly brilliant ... Bursting with humility and humanity.”

You may have to make allowance for the fact that Mr Bharara is an American, with all the hubris that that implies. Outside America (meaning, the United States of America) we might get a little tired of being told how wonderful Americans are, with the best of everything. A claim that Mr Bharara supposes is right is "Nobody does trials like Americans” (p 264). Many of us will mutter, “Just as well.”

The subtitle of this book is “A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law”. This, matched against the title, raises the question, are prosecutors the ones who “do” justice? If they are, doesn’t anyone else do justice too? What does Mr Bharara mean by “justice”?

“Justice is a broad and hazy subject ... 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 ... [it is] a way to reach the truth.” (pp xiv – xv)

But truth isn’t always the outcome: the high standard that must be reached by the prosecutor means that many guilty defendants will escape conviction. And the prosecutor’s proper reaction to such outcomes, when trials have been properly conducted, is to say “the jury has spoken, justice was done, and we move on.” (p 294) “That nervous feeling you have when the jury comes out [to return its verdict], prosecutors? That is justice working. Unpredictable verdicts, what a luxury.” (p 283)

So it is the process, rather than the result, that either is or is not just, and more people than only the prosecutor are involved. Each participant is entitled to an opinion, of course, although their sweeping generalisations must be read with their perspectives in mind.

Even from the short passages I have quoted you can see that the book is written in accessible prose, suitable for a wide age-range readership. It brings to mind some of the dangers that those who try to make justice work must strive to avoid: improper charging and plea bargaining, uneven rewards for co-operators (“snitches”), concealment of enforcement officers’ misconduct, over-preparation of witnesses for trial, erratic judicial behaviour, and the brutality of prescribed sentencing regimes.

There is, too, plenty of advice for lawyers. Most important is the need to develop listening skills. And, relatedly (no spoilers), flashes of humour (pp 262-263). A clever retort to judicial rudeness is also memorable (p 247). And lots of humanity, including concern for conditions in prison (“Rikers Island is a broken hellhole” p 308), and humility (his daughter’s description of the author on p 279).

Few criminal lawyers would not want to read this book by the former senior New York prosecutor (technically, U.S. Attorney for the Southern District of New York), who has the distinction of having been asked to stay on in his job by the President, only to be sacked by that same President (guess who) after refusing to take a phone call that might well have been one that the President should not have attempted to make.