Criminal Justice: Sounding out our criminal justice system

I recently listened and re-listened to a series of podcasts discussing the criminal justice system by the former United States Attorney for the Southern District of New York, Preet Bharara. Bharara interviewed a high-profile criminal defense attorney, a defendant convicted of insider trading and the former United States attorney in Chicago about what it is like to be involved in the inner workings of a criminal case. I would highly recommend adding the full series to your treadmill list or commute, and I found a few of their comments particularly insightful.

From the prosecutor

The former United States Attorney recalled that the most meaningful work he did was not the cases his office was responsible for prosecuting during his tenure. Rather, it was selecting who would serve the district as assistant United States attorneys long after his departure. He tried to hire individuals with good judgment and a sense of proportionality when it comes to their prosecutorial discretion.

From the defense attorney

The most rewarding work of the defense attorney is pre-charge. Resolving a matter in the early stages of a covert investigation is the only way a person can save their life and reputation before it’s lost. It is the ultimate “not guilty” verdict that nobody will read about in newspapers. In a transparent moment, the defense attorney also acknowledged that “knowing the secret” about which everyone else is in the dark is very “seductive.” Good defense attorneys have the judgment to balance what they know with what they should disclose and to whom they should disclose it.

From the accused and convicted

The former attorney who pleaded guilty to insider trading charges said the only way to have the best opportunities available with the prosecutor, jury and/or judge is to acknowledge that you have made choices, not mistakes. Once you have done that, it will be incredibly difficult to trust your own judgment, which is when you will be able to receive effective advice from all of your counselors, both legal and loved ones.

Putting it together

Reasonable minds can always differ about individual outcomes, but the criminal justice system seems to work best when the cards are dealt early and everyone knows more than half of what the others are holding. For the prosecutor, it may be an acknowledgement that the defense attorney at least knows the defendant better than you, if not also some of the facts. For the defense counsel, it is usually a healthy respect for the law and those whose judgment and experience have put them in a position to be the dealer. For the defendant, more often than not, it means accepting that you don’t want to stand on a pair of 8s. I do not think the fastest outcome is always the best resolution, or that the end result is always worse for everyone when no stone is left unturned. I do think Bharara is right to focus on personal judgment and responsibility as the key traits to an effective criminal justice system.•

Jonathan Bont practices in the areas of criminal defense, business litigation and government compliance at Paganelli Law Group. Opinions expressed are those of the author.