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May 31, 2018

STAY TUNED: The Defense (with Ben Brafman)


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Ben Brafman is one of America’s most prominent defense attorneys. He has represented Sean Combs, Martin Shkreli, and Harvey Weinstein. Brafman speaks with Preet about the clients he won’t take on, why everyone deserves a good lawyer, and what it’s like to represent someone everyone hates.

This is the first episode in our series on the roles and players in the criminal justice system.

Plus, Preet answers your questions about the latest developments in the case against Michael Cohen.

Do you have a question for Preet? Tweet them to @PreetBharara with the hashtag #askpreet, email [email protected], or call 669-247-7338 and leave a voicemail.

Preet Bharara: Ben Brafman, welcome to the show.

Ben Brafman: Thank you.

Preet Bharara: You’re one of the most sought after criminal defense lawyers in the country, if not the galaxy, so I appreciate your taking the time.

Ben Brafman: My pleasure.

Preet Bharara: So, what I thought we’d do today is spend some time sort of discussing how you do your job and how criminal defense lawyers do their job. So, let’s start with this. So, first, you gotta get retained by a client.

Ben Brafman: Right.

Preet Bharara: So, a guy, let’s say, gets arrested by the federal authorities or state authorities, and he’s looking for a lawyer. And he calls you up, and he’s thinking about hiring you, but hasn’t made a decision yet. That happens to you on a regular basis?

Ben Brafman: Regular basis.

Preet Bharara: How does that work? Give us an example of how you persuade someone to pay what it costs to retain the likes of you.

Ben Brafman: Well, a lot of my clients come through other firms. It’s not often that somebody just picks you out of the Yellow Pages at this point in my career. So, people come to me referred by other lawyers, and then it’s my objective not to screw it up.

Preet Bharara: You close the deal. Right.

Ben Brafman: So, I meet them, and they come in all sizes and shapes and backgrounds, and some are easier to deal with than others, and some have never dealt with a lawyer, and most have never dealt with a criminal defense lawyer. I’m rarely representing someone with a serious criminal record, at least not in the last 20 year. So, people who come to me for the first time, it’s culture shock for them, and I have a lot of explaining to do.

Preet Bharara: What’s your pitch to those people?

Ben Brafman: Well, I think it’s a pitch that’s fact-specific. Not every case is the same, and some people retain me to keep from being prosecuted, and I think that’s a big part of my practice that nobody ever reads about. Some of my greatest successes, no one will ever read about, because I kept prosecutors from prosecuting. And it’s a much bigger win when you give someone back their life before they’ve been destroyed by an indictment or an arrest. And that’s a different pitch than when you’re representing someone who’s been indicted. If you’re summarily arrested, it’s a nightmare until you arrange for bail and get them through the system. And that’s often the most difficult part of the case for me.

Preet Bharara: Maybe there’s no typical defendant, but someone who’s a high-profile person because they’re a celebrity, or they’re wealthy, or they’re prominent in some way, and they’ve been arrested, are they looking for someone who will tell them, “You’re gonna beat the charges”? You’re gonna fight hard for them, that you have a legal strategy. Are they looking for someone who is reassuring and gonna hold their hand a little bit? What’s the psychology of someone over the course of the years that you’ve been doing this that you think people in that position have when you get called?

Ben Brafman: I think they want to verify that you know what you’re doing, and I think they want to know that you’re competent. I think there’s a certain amount of humanity that you have to inject into the process, because it’s the worst time in the lives of the most of the people when they come into my office. I’m sort of like an oncologist. No one is happy to see me, and they wish they never met a guy like me. But after they meet me, I try and put some comfort into their life that it may not end badly. There is no script. You’re really, you know, rolling with the punches. Is this person sophisticated? Did they come in with an entourage? Do you need to impress more than the defendant? Are there lawyers they bring with them?

Preet Bharara: Who had an entourage?

Ben Brafman: I think a lot of my clients, certainly the celebrities come in.

Preet Bharara: Like who?

Ben Brafman: Puff Daddy had more people than could fit into my conference room. [Laughter] It was difficult at the outset, because you know, he didn’t know me. The people who were around him were around him for a long time. They had enjoyed his success, and he was their meal ticket, if you will. And suddenly, you know, he has this, you know, short Jewish white guy who is injected into the process and wants to call the shots. Sometimes I have to say things like, “Look, you’re having a heart attack and I’m a cardiologist. And you don’t always survive a heart attack, but the best chances you have are if you listen to a trained cardiologist.”

Preet Bharara: So, did you call him Puff Daddy?

Ben Brafman: Well, I started with Mr. Combs. It went to Puff Daddy, it went to Puff, it went to Diddy. And that was my opening statement.

Preet Bharara: What did he call you?

Ben Brafman: He called me Uncle Benny after he warmed up. But that was my opening statement, to be candid with you. You can call him Sean Combs, you can call him Puff Daddy, you can call him Puffy. You just can’t call him guilty.

Preet Bharara: [Laughs] That’s pretty good. Did you write that yourself?

Ben Brafman: It was pretty good. I wrote it myself.

Preet Bharara: Remind folks what he was charged with, and maybe some folks who he was or is.

Ben Brafman: Well, this happened 20 years ago, and—

Preet Bharara: He’s not as well known as he was.

Ben Brafman: 20 years ago, he was the hottest talent in the hip-hop world, and he was dating Jennifer Lopez, who was the hottest talent in the female hip-hop world, and they were in the club, and there was a shooting, and he was charged with attempted murder and weapons possession and bribing a driver to take the weight. And after a 10-week trial, which at the time was the trial of the decade, he was acquitted of all charges.

Preet Bharara: Who was he charged by?

Ben Brafman: The Manhattan District Attorney’s Office.

Preet Bharara: Bob Morgenthau’s office.

Ben Brafman: Bob Morgenthau, yeah.

Preet Bharara: Right. Legend.

Ben Brafman: Legend.

Preet Bharara: But you are too.

Ben Brafman: At the time, I was not.

Preet Bharara: [Laughs] But you’re saying now you are. It’s like, that’s a nice concession.

Ben Brafman: No, but I think I’ve earned some credit as a good criminal defense lawyer.

Preet Bharara: So, let’s take that example of Mr. Combs. He had an entourage. Did he decide to retain you before he met you, or did you have to sell him?

Ben Brafman: I had to sell him. But he was referred to me by Johnny Cochran, who he had known since he was a little boy, so.

Preet Bharara: One of OJ’s lawyers.

Ben Brafman: Correct. Cochran vouched for me, if you will, and I wasn’t retained by Combs until after he met me several times.

Preet Bharara: How about Michael Jackson? How’d that retention come about?

Ben Brafman: That came through Johnny Cochran, quite frankly.

Preet Bharara: He was very helpful to you, Johnny.

Ben Brafman: He was, and I miss him. And he was a brilliant lawyer.

Preet Bharara: You say that when you try to encourage and persuade a client to retain you, you don’t oversell the likelihood of success. In my experience on the other side, the sense that I’ve gotten from a lot of people is some people get retained because they tell the defendant, who’s been charged by a prosecutor, the case is nonsense, the case is BS, I’m gonna get it dismissed. I think some of them go on to say, we’re gonna attack the prosecution, we’re gonna attack the FBI or the NYPD. We’re gonna get them disbarred, and they’re gonna regret the day they ever decided to mess with you. Which may be an overstatement, given what the facts are. Do you know people who do that, and what do you think about that practice?

Ben Brafman: I think there are a lot of people practicing criminal defense work who should not be practicing criminal defense work, and I think anyone who would start a conversation like that or make those type of representations is asking for trouble. And ultimately, a lot of these people last a couple of years in the industry, and then you don’t hear from them anymore. And you certainly don’t hear about them. But understand, there are several levels of criminal defense work. There are a number of people who are represented, as you and I both know, by the Legal Aid Society, Federal Offenders, [?CJA]. Some of the best lawyers in New York practice in those offices, and they represent people who are either indigent or who don’t have the ability to retain counsel. And then you have a whole level of criminal defense lawyers who are just going through the motions of being a criminal defense lawyer. And sometimes, in order to land a client, they need to say things which maybe are not appropriate or are potentially dangerous to themselves personally. Because you make these predictions and it doesn’t happen, you’ve got explaining to do.

Preet Bharara: Yeah, look, I see it all the time. A lot of high-profile defendants who we charged in my old office, many of them retained you. And some retained folks who had a reputation for being bullies and loudmouths, but not very good in the courtroom. Because my sense is, which is why I asked the question, that they convinced the defendant, who’s in a vulnerable place, even if they’re high-profile, that they had a larger chance of winning than they actually did.

Ben Brafman: People in that position are desperate to hear that. They want very much to hear it. They want to hear the doctor say it’s operable. It’s not malignant, and you’re gonna be okay. You’re gonna go through some pain and suffering.

Preet Bharara: Right. So, they go with the doctor not based on how realistic they are, but on how hopeful they are. So, now let’s say you’ve been retained. And in case where someone has been charged—let’s say it’s a violent crime, or it could be a financial fraud—what do you do? You sit down with the client. Do you go through all the facts? Do you wait? Do you get to know them a little bit first? Do you tell them, “There are some things I don’t want to know”? You know, people who watch a lot of television and watch crime fiction on crime TV, they may not appreciate.

Ben Brafman: I like to know. Rarely do I ever put a client on the witness stand anyway unless I’m convinced that they have an explanation that’s, A, truthful, and B, consistent with reasonableness, because I’ve won a lot of trials where the defendant never took the witness stand. And it’s a question of creating reasonable doubt or creating a legal defense that will ultimately help me explain the reasonable doubt to a jury as a matter of law, even if the judge doesn’t agree. It’s different in every case. And you need to allay some concerns early on, because people who have never been injected into the criminal justice system really have a few of the system that’s fueled by either television or movies. And it’s not really an accurate depiction in most cases.

And people who’ve been involved in the criminal justice system their whole lives, they don’t want to have those conversations. They understand, sometimes it’s much easier to represent someone who’s essentially been in and out of the system, and they’re easier because they don’t need the handholding and the comfort that comes with my job. I tell people that I’m almost as much a psychiatrist sometimes as I am a criminal defense lawyer. And what the people who look at my job don’t really understand is how hard it is when you’re dealing with someone who’s hanging by a thread emotionally. And sometimes it’s scary, because you think, you know, people are gonna go out and kill themselves. And I need to convince them that this is either gonna end well or that there is life after this issue passes.

Preet Bharara: Do you think it’s important to keep some distance from your client? Because based on what you described, they’re going through a very difficult time. Do you become their friend? And is that okay, to become their friend, or does that bring you guys too close?

Ben Brafman: Again, depending on the client, sometimes I keep really substantial distance, and I really don’t want to have anything to do with them personally outside a courtroom, outside my office. And then there are people who right now are still close to me 20 years after I’ve walked them through this, you know, horrible event in their lives. They invite me to their kid’s weddings. I have a—

Preet Bharara: So, it depends on the person.

Ben Brafman: It depends on the guy. I have a baby who was named after me by a Bukharian [ph/] man who was facing deportation.

Preet Bharara: A daughter?

Ben Brafman: A son.

Preet Bharara: Okay. Because Benjamin is, you know.

Ben Brafman: No. It was a son, and they said, “I’d like you to come to the ceremony tomorrow.” I said, “I really can’t. I’m on trial.” He says, “I’m naming my son after you.” And I said, “I guess I have to go.”

Preet Bharara: [Laughs] What kind of case was that?

Ben Brafman: It was an arson case in which I think he was framed by a Russian street gang, and since he didn’t pay the extortion, they burned down his supermarket. And it was a horrible case, because there would have been a good plea but for the fact that the plea would have resulted in his deportation. He had 62 members of his family who lived here. His children lived here. His wife was a doctor. She lived here. And he was not a citizen. I could have gotten him 18 months on a plea, and yet we went to trial. And at the end, if he had been convicted, it was a mandatory minimum 10-year sentence, because a fireman had been hurt in an arson. Two months after 9/11, I had to cross-examine a fireman in full parade uniform. You know what my cross was?

Preet Bharara: Tell me. We’re gonna get to cross-examination.

Ben Brafman: “It’s an honor to meet you, sir, and I thank you on behalf of my family for your heroic service to the city of New York after 9/11 and during 9/11.” And one of the prosecutors in the case turned to me, and he said, “I think you just won the trial.”

Preet Bharara: [Laughs] How do you deal with a client who’s difficult and maybe a jerk? One example comes to mind that people may have read about. You recently represented a person by the name of Martin Shkreli.

Ben Brafman: Right.

Preet Bharara: Who’s not a particularly popular person. You said at his sentencing, “There are times when I want to hug him and hold him and comfort him, and there are times I want to punch him in the face.”

Ben Brafman: And that was a true statement. I said it in court. And it turned out to be the quote of the day in the New York Times. And I don’t think I’ve ever said something more appropriate in the [?well] of a courtroom, because I think he’s a brilliant young man, and I think he is a very good person fundamentally. I think he’s misunderstood. I think he has, you know, serious issues that he himself is dealing with. And I’ve never been in a case where someone, after a reasonably good verdict, has done more by his own statements to undermine all of my efforts and to alienate himself from the government and ultimately the court. I think the judge is a terrific judge. I like her a lot. I have a great deal of respect for her. I’m absolutely convinced that he got two or three years more for his sentence because he was Martin Shkreli, and not necessarily because of the crime he was convicted of.

Preet Bharara: Were you able to control him at all?

Ben Brafman: Yeah, I was, and I was—

Preet Bharara: So what we saw, so what the public saw was a kinder, gentler Martin Shkreli, because of you.

Ben Brafman: Well, he came to court every day. He was never late. He was always on the best of behavior while on court. On one occasion, he wandered into a press overflow room and got into it with the reporters. But understand something. He was vilified, I think unfairly, and essentially turned into the most hated man in America. And the venom in the voir dire when we were picking the jury—and I’ve had, you know, clients who are murders who have dismembered people, and jurors would hear the charges and say, “I can be fair.” And then, you know, they heard it was Martin Shkreli, and they wanted to take him out in the courtroom. So, it was pretty scary.

Preet Bharara: How do you mitigate that if you have a client who’s so vilified, in your view?

Ben Brafman: I think my opening statement in that case, I got up and I said, “Look, like Lady Gaga said, he was born this way. I don’t think what you’re gonna see is a terribly difficult person. I don’t think he’s venal or corrupt. And I think you’re gonna find him not guilty. But you gotta get beyond the bizarre behavior and the bizarre, you know, twirling of his hair and turning in his seat, and the smirks that I think you will ultimately conclude that he can’t control.” I humanized him, and I think what I think bring to the well of a courtroom, at least I’ve been told, and I think it’s true, is by force of my own personality. I want jurors to like me, I want jurors to believe me, I want jurors to be able to rely on me, and I want them to have comfort in doing so. And when I got up and I tried to humanize Martin Shkreli, everybody in the courtroom relaxed, because they were under the impression that he was such a bad person that they had to hate him, and we went through a very extensive voir dire.

And I picked people with my colleagues who I thought were really just decent person. There was no profile of a juror. I wanted people who reasonably impressed me as being someone who if I had to have a cup of coffee with them, I could sit through the ordeal and probably make conversation with them. And you could see by how they carry themselves, by the statements, by sometimes the humor by which they responded to questions. I like that. And when I finished my opening statement, I had 12 people in their body language softened up. They relaxed in their seats. You could actually—in my view, I could see a change in the way they carried themselves before they came into the box and after the opening statement.

Preet Bharara: Do you try to be more likeable to compensate for an unlikeable client, or are you always as charming as you were in that case?

Ben Brafman: I had a lot to work with in that case. And when the jury acquitted him of five out of the eight counts—you know, to be honest with you, I’ve had a lot of straight-out acquittals that I’m very proud of—I think this was maybe one of the best verdicts I’ve ever received, even though he got convicted and is now sentenced to prison, because I got a jury to say not guilty five times when the defendant was, in their view, someone who was supposed to be the most hated man in America.

Preet Bharara: So, let’s talk about, now, cases that you make go away before there’s a charge, or you make go away before there’s a guilty plea or a trial. Because as you say, and I agree with this, that the biggest victories for someone are when they don’t have to go through the ordeal of the trial at all, and you convince prosecutors, who are difficult people to convince, and they can be very obstinate, and I know that from personal experience. You represented someone by the name of Dominique Strauss-Kahn, DSK. Tell me how that felt, and remind people of what that case was about.

Ben Brafman: Well, Dominique Strauss-Kahn was on his way to becoming the President of France. He was the head of the International Monetary Fund, and perhaps one of the most important economic leaders in the world. And he was arrested in New York in 2011, I think, and charged with attempted rape of a maid in a hotel in Manhattan. He was remanded and held for five days at Rikers Island. We ultimately were able to have him released on $5 million bail.

I’ve never seen a media presence in all of my cases collectively, not in Puff Daddy and Michael Jackson combined did you see the number of people with cameras and reporters from—it was from all over the world. And it was hundreds of people. They were camped out in my office for three months in the summer in the 100-degree weather taking pictures of me getting in and out of a car without saying anything. And the decision we made, which I think helped us, was not to attack the District Attorney’s office, and not to discuss the facts other than to say—and if you look at the clips, I said this 2,000 times—“We don’t believe that the encounter was forcible, and therefore, it wasn’t criminal, and we’re not gonna answer any other questions about what went on in the room,” because as a practical matter, what went on in the room could be offensive and unpleasant, but if it’s not a crime, it’s really nobody’s business. And that case was then indicted.

And as you know, that’s another step in the process, summary arrest, indictment. And we maintained that the witness was not telling the truth, and what she described was, in our view, not only physically impossible, but it changed every time she gave another statement. And her lawyer, who is now—turned into a good friend before he died, Ken Thompson—

Preet Bharara: Became the Brooklyn District Attorney.

Ben Brafman: Very bright guy. I think he made a very big mistake. He allowed her to speak publicly on several occasions. And most notably, he allowed her to be interviewed by Robin Roberts on television. And when I watched the Robin Roberts interview, I said, you know, game over, because the account she gave Robin Roberts was so different than the account she gave to the police and the complaint, and so different than what the District Attorney had told me. And I said, you know, she’s just not going to be a witness that’s gonna provide you with proof beyond a reasonable doubt. And I think they began to worry about her vulnerabilities. And the forensic evidence in that case was not consistent with the testimony. So, Bill Taylor and I did a very good job in, one, understanding the science. You know, people think, well, you just talk good. No, you really work hard.

Preet Bharara: You gotta talk good also.

Ben Brafman: You gotta talk good, but you gotta know what you’re saying.

Preet Bharara: Of course.

Ben Brafman: You know? And in that case, the forensic evidence, or the lack of forensic evidence, was so inconsistent with what the allegation was that we used it affirmatively. But that case began to spiral out of control from the District Attorney’s perspective because she kept giving them different issues. And one of the things we did—we learned a lot about this woman that was bad, and yet we did not seek to trash her and give it to the media. We gave it to the District Attorney’s office.

Preet Bharara: You’re relatively restrained in the press when you represent someone who has a high-profile. Not every lawyer is. You see, you know, people who are listening, you turn on the TV and someone prominent gets arrested, and the defense lawyer goes to the microphone and says, “This is an outrage. This case never should have been brought,” attacks the prosecutors. There may or may not be a president who does that from time to time. It is your decision to be minimal and minimalist in your statements after you have a client charged. Is that a strategic thing, or is that just how you are?

Ben Brafman: It’s how I am, but it’s also a strategic thing. And even if I wasn’t that way, I’m disciplined enough to understand that you should not attack a prosecutor who you may then be on your knees in front of six months down the road—

Preet Bharara: In that same case.

Ben Brafman: Almost every case. Look, I have people who ultimately have to plead. And as you well know, I work very hard in trying to get the kind of plea that gives me the best chance of convincing a judge either not to incarcerate someone or to incarcerate them for a modest period of time. And if you’re trying to work out a reasonable plea, and what you’ve done is, you know, called the prosecutor incompetent or unprofessional or corrupt, that stings, and it doesn’t go away. So, when you want to go in the door on your hands and knees, as I say over and over again in this profession, you need to have the door open, and not have this become personal. I’ve rarely seen prosecutors who have done something that is so outrageous that I can actually criticize them. And even then, I don’t, until and unless it becomes an issue in the well of the courtroom.

Preet Bharara: But there are other considerations too when you have a high-profile client, right? It’s not just ultimately being able to have a good relationship with a prosecutor with whom you might have to negotiate. But you also want to defend their reputation publicly. I presume that’s why some lawyers do it. And they come out swinging because they want to make sure that the public appreciates that they think that the charges are outrageous. Like, how do you think about that aspect of it?

Ben Brafman: I think there is something to be said for being able to, on occasion, try to defend the client and level the playing field. But you can’t do it by making reckless statements, because at the end of the day, that undermines the objective. Now, you know, you’ve been in the eye of the storm as often as I have, and maintaining your credibility with the media is very important to being viewed as a serious player, to being viewed by the judges who you appear in front of as a serious player. And you need to sometimes shut it down. On the other hand, you know, when I had—I go back to Puff Daddy, for example. You know, he was starting a fashion company right when the trial started. And he said to me, “Look, I’m not gonna talk about the case, but I gotta be able to talk about my fashion company, ‘cause I got millions of dollars by investors who have a right to have me promote this company.” I said, “You’re right, and let me help you.” So, Johnny Cochran and I went to the runway party at Bryant Park on the night of the show. It was a brilliant show. We talked about what a brilliant entrepreneur he was. We didn’t talk about the case. But that was seen by the jury pool, it was seen by the people who ultimately got on the jury pool. So, what we did was not say, “By the way, this brilliant entrepreneur is also falsely accused by a raging lunatic in the DA’s office.” We said, “Mr. Combs is gonna go to trial, and we’re gonna try that case in the courtroom. But tonight is his fashion night, so let’s not talk about the case. Let’s talk about that grey suit, which I think is just outrageous, and it’s great.”

Preet Bharara: [Laughs] Do you think that your colleagues in the Defense Bar who come out swinging and punching are making a tactical error in almost every case?

Ben Brafman: In most cases, yes. And some do it better than others. Not every high-profile case is a high-profile case because the person in the defendant’s place is a celebrity. Some high-profile cases get extraordinary coverage because of the notorious nature of the crime. This kid who, you know, did the mass shooting in Florida, that’s a high-profile case. But you don’t know who represents him. You don’t know whether they have any experience with the media. It’s very seductive. You have to be really on your A game not to be seduced by the fact that suddenly, you know what everybody in the world is trying to figure out, and you know, and you’re not telling anybody.

I mean, I’ll tell you a very funny story. In the Dominique Strauss-Kahn case, I was being invited to Germany on a private plane to go on a talk show, Japan, and I was like, laughing at some of these offers. These people didn’t know me. It was the Dominique Strauss-Kahn case. And one Sunday morning, my cell phone rings, and I pick up the phone, and the voice says, “Ben, it’s Matt.” And I said, “Matt who?” And he said, “It’s Matt Lauer.” And I said, “Matt, you’ve never called me before. How the hell would I know it’s you?” And he says, “Well, you know, I’d love for you to go on, you know, my program, and bring Dominique Strauss-Kahn, and have him be interviewed by me. You know, a Matt Lauer interview is a great way to get your side across.” I said—

Preet Bharara: Back then.

Ben Brafman: Back then, it was, right? And I said, “You know, I’ve turned down Barbara Walters. I’ve turned down The Today Show and Good Morning America, and I’m just not doing it.” But when you get a call like that, it’s seductive. It’s not every day that a substantial media personality calls you on your private cell and invites you to be on. And I’ve often told lawyers when I’ve lectured about this, you know, the worst thing a lawyer can do is exploit the attorney-client relationship. Clients don’t like it. Judges don’t like it.

My career has received a great deal of press coverage by virtue of who I’ve represented and some of the results I’ve been able to get. But if I do something to create a good press day for you and we lose the case, no one will ever remember the good press day. If you get a bad press day, and a bad press day, and a bad press day, but we win, no one’s gonna look back at the bad press day. They’re gonna look at the good press day.

Preet Bharara: Right. So, you have a smart strategy, tactical strategy of being low-key in the press when you have a client who is in jeopardy, and you don’t want that client to be talking, and you try to tell them not to do that. There’s another related thing that happens with high-profile defendants who have other interests too, business interests like you said Puff Daddy had. Martha Stewart had a business interest—

Ben Brafman: Correct.

Preet Bharara: —at the time that she was charged. And they want to make sure that they are defending themselves publicly so that investors have confidence, and customers of their business have confidence. And sometimes, they want to come and talk to the prosecutors to explain themselves. This is before trial, right? And they want to be able to convince them in this process that we talked about, you know, so the charges are either dropped or not brought at all. There is inherent danger in people coming and talking to the prosecutors, particularly if they’ve done something wrong. How do you handle the issue of bringing your client in to convince the prosecutors to drop the case?

Ben Brafman: Well, I’ll answer it in two ways. The number of cases where that is even an option are few and far between. The number of cases where the client wants to do that, the more powerful they perceive themselves to be, the more difficult it is to sort of wrestle them to the ground. And I think people should be reminded that Martha Stewart went to prison because she spoke to the government, was charged with lying to prosecutors, and went to prison because she was convicted of lying to federal agents in the course of a criminal investigation. She did not go to jail because she was convicted of securities fraud. And I had the following conversation at least 25 times in my life, where I say to somebody, “You can’t talk to them. You need to invoke, even if you’re subpoenaed.”

Preet Bharara: Invoke [crosstalk] 00:28:09, yeah.

Ben Brafman: Invoke their Fifth Amendment privilege and not go in and talk. And they look at me and they say, “If I invoke my Fifth Amendment privilege, they will think I have something to hide.” And I will then say, “You do. You do.” If you go in and tell the truth, you’ll be incriminated, and if you go in and lie, you’ll get indicted for lying. There is no upside to going in. Now, I’m a very good proxy, and if I can’t sell a prosecutor on pausing, it’s gonna be hard for the client to sell them. I don’t cry wolf. I don’t go to you in the five or six or seven years that you were there at the Southern District.

Preet Bharara: Sorry, seven-and-a-half.

Ben Brafman: Seven-and-a-half years. I think I came to you once or twice, and it was really to try and work out a different plea. I don’t think it was to persuade you to listen to my client or on an attorney proffer.

Preet Bharara: I’ll tell you what you did on a few occasions—

Ben Brafman: Okay.

Preet Bharara: —which other people haven’t done. And you know, obviously you’re a member of the Defense Bar, but I took your word when you said this a few times. When you had a trial against people in my office, whichever way it went, and usually it went our way, if you had a good experience with the prosecutors, you would call me up.

Ben Brafman: Right.

Preet Bharara: And you would say, “You should just know that Prosecutors A and B are fine lawyers, and they tried the case fair and square, and you should be proud of the work that they did.”

Ben Brafman: Very few people do that.

Preet Bharara: Almost no one does that. It’s not unsmart to tell the U.S. Attorney that, but I know you meant it.

Ben Brafman: I did mean it.

Preet Bharara: And there’s no reason why people can’t be, especially when they’re repeat players, collegial with each other. It is not only a good way to be as a person, because decency is important, and you know, collegiality is important, even when you’re on the other side of the aisle in politics or the other side of the well in a courtroom, it’s also smart.

Ben Brafman: It’s also an honest way to practice. Prosecutors have not easy lives. I was a prosecutor. They don’t get paid well. They work very, very hard. And I think probably one of the nicest things ever said to me in the well of a courtroom was by a prosecutor. The case had resulted in an acquittal. It was sort of a resume kind of a case for a prosecutor who was, you know, in his cup [ph.], sort of holding his head, and I could see how disappointed he was, and I was smart enough not go over and say, “You tried a great case,” ‘cause he didn’t want to hear from me then. But I was packing up my stuff and trying to get out of the courtroom before the jury changed its mind, and he looked at me and he says, “I’m gonna tell you something. Right now, I hate your guts. But if a member of my family were ever arrested, you would be my first call.” And I was touched by that.

Preet Bharara: Well, that’s the best compliment you can give someone.

Ben Brafman: It is.

Preet Bharara: It’s not how they are on TV and not what you thought they did in court, but if you were in trouble—we would have these conversations, by the way.

Ben Brafman: Right.

Preet Bharara: You know, I’m sure that you appreciate, in the same way that you folks talked about the prosecutors, when we sat around at lunch, and including during my time as U.S. Attorney, the most powerful question to ask to answer the issue of who is a good lawyer is if you were in trouble or your parent was in trouble, who would you call? Because that’s where the rubber meets the road.

Do you think that sometimes you have to act less collegial to the prosecutors in front of your client?

Ben Brafman: Sometimes clients don’t want you to schmooze with the prosecutors. I’ve tried to convince people on both sides, both clients and prosecutors, they’re not the enemy. I’m not the enemy. We’re adversaries. This is an adversarial system.

Preet Bharara: That’s really hard for a person whose liberty is in the balance.

Ben Brafman: It is.

Preet Bharara: ‘Cause look, I’ve had people glare at me and curse and me, and curse at my prosecutors. There has been, you know, occasions of violence, and the Deputy Marshalls have to be called in because someone throws a punch. That’s a tall order, to convince people not to think that the prosecutor is the enemy.

Ben Brafman: But those clients are really, in my experience, rare.

Preet Bharara: Are there any clients you will not take on? Is there any category of case you will not do?

Ben Brafman: You know, I’ve been asked that question a lot. I think because of my own background, my own heritage, I’m not the right person to represent, you know, a terrorist charged with doing an act of mass murder.

Preet Bharara: But why? But why? Why is that?

Ben Brafman: Well, I think—

Preet Bharara: If you believe everyone deserves a chance.

Ben Brafman: I do, and I’m just not the right guy. You know, like I lost much of my family during the Holocaust by people who were so filled with hate that they were willing to take my grandmother and shovel her into a crematoria. That’s in my DNA, and I don’t want to be in a room with someone who hates America so much that they’re willing to kill several thousand, you know, men, women, and children indiscriminately, and then rely on my legal skills and experience to defend them. Those cases don’t come to me as a practical matter.

Preet Bharara: Well, not if you keep saying things like that.

Ben Brafman: Well, and I’m glad that they don’t come to me, because I do believe that the most vilified among us are where the Defense Bar needs to shine. I mean, it’s very easy to represent someone who’s popular, and smart, and funny, and gregarious. It’s very easy to do that. But I think people who come to me are at the worst moment in their life. And for me to be obnoxious or unnecessarily harsh or cruel is really not right. And I’m not supposed to pass moral judgment. You can’t do what I do—and I had a great conversation with my wife 25 years ago where, you know, at that point, if you wanted to learn how to be a trial lawyer, you had to try organized crime cases. You know, today, God bless them, there’s very little if any organized crime. But in those days, some of the people you represented were like, sort of dangerous people.

So, I’m representing someone in a Southern District who’s charged with numerous murders and horrible dismemberments, and I have the 3500 material, the exhibits, on my kitchen table where I’m working. And my wife sees it, and she’s a librarian,  so this stuff, you know, she doesn’t understand why I want to do this and why I am doing it. And she looks at this stuff, and she’s horrified by it. And six months later, by client was acquitted. And I remember coming home, and I said to her, “He was acquitted.” She looked at me and she said, “This is good?”

Preet Bharara: [Laughs] You’re making a living.

Ben Brafman: Right.

Preet Bharara: I want to talk about trials. Is trial theater?

Ben Brafman: Some, but it’s—

Preet Bharara: Do you consider yourself to be an actor on the stage when you’re in trial?

Ben Brafman: No, but I am in the well of a courtroom. The difference between me and an actor is I’m not scripted. Is there some theater in a courtroom? Sure. Being able to speak well, and being eloquent and having a gift for gab is helpful, but unless you put in the hours and know the subject matter so well that the words just jump into your face, you’re not gonna be successful. I know a lot of charming, very good-looking, attractive, eloquent people who have the intelligence to do this, but just don’t want to do the homework. I mean, I have a job where every night, I basically have homework. And when you’re in a trial zone, it’s nonstop, and you don’t sleep, and you, you know, want to throw up three or four times a day, even at this point in my life, when I think I’m a very experienced trial lawyer.

Preet Bharara: Look, I agree with all of that. I also think that people who think of it as theater are off-base to the extent that they think they need to be someone that they’re not. And the most important thing, and I think you’ll agree with this, is to have authenticity. That’s important in life; that’s important in politics; that’s important in the courtroom.

Ben Brafman: Absolutely.

Preet Bharara: How important is jury selection?

Ben Brafman: Very important.

Preet Bharara: Do you have a theory of the kinds of people that you think should be on a jury when you’re the defense lawyer, and the kinds of people who should not be on a jury as a general rule?

Ben Brafman: I think the general rule as a defense lawyer is you want people who are essentially looser, not buttoned up to the point where they can’t see the other side of an argument. I think most people will tell you that Republican conservative people who have always, you know, worked either in a bank or a structured environment are probably not good defense jurors. I know it’s good to say the presumption of innocence, but most people don’t think you were picked out of the Yellow Pages for the distinction of being named in an indictment. So, it’s a lot to overcome in terms of that built-in prejudice. I’m up against the government or the State of New York. That’s a lot to overcome, ‘cause I think people identify more with prosecutors than they do with defense lawyers.

Preet Bharara: Well, that’s not always true in New York.

Ben Brafman: It’s not always true in New York, but I like people who have an alternate lifestyle. I like people—

Preet Bharara: Right. Prosecutors don’t like those people.

Ben Brafman: Right.

Preet Bharara: Prosecutors like—I was told when I first started trying cases, you know, the kind of person you want is a middle-aged accountant.

Ben Brafman: As a prosecutor, yes. There are usually, in my experience, two, three, four, or five people who run a jury, and the rest of the people are not necessarily fillers, but they’re not looking to take a stand. And sometimes, if you guess right about your strong juror, you win. And I’ll give you a perfect example. So, I’m being told by a jury consultant, that juror gets a zero on our profile of one to five, and we were looking for fours and fives. And I said, “I like her.” “What do you like about her?” “She teaches autistic children.” He says, “What does that have to do with this case?” “You cannot be a teacher of autistic children and be a mean person.”

Preet Bharara: You have empathy.

Ben Brafman: And you have to have patience and empathy, and you have to have a heart. My defense in this case, that you can’t convict unless you’re sure, and you can’t be sure, therefore you have to acquit. A person who’s a good person gets that. And I won.

Preet Bharara: Do you have a theory of cross-examination?

Ben Brafman: People think every cross is a knockdown drag-out slugfest.

Preet Bharara: Most are not.

Ben Brafman: Most are not. Most—

Preet Bharara: And they mostly don’t work if that’s what you’re trying to do.

Ben Brafman: Correct. Yeah, there are times when you’re cross-examining a career informant where you just need to just leave in a puddle on the seat, and I can do those crosses, I think, as well as anybody, I’ve been told.

Preet Bharara: Which means what? Which means you’re not yelling, you’re not doing a-has.

Ben Brafman: You’re not yelling, but you’re not giving them any room. You’re not giving them any ability to explain their answer. You’re keeping them on a very tight leash, and your cross-examination, if it’s really done well, gets “yeses” and “nos”, and you know exactly what’s coming before you ask the question, and you don’t allow them to squirm out, and you don’t give them the room. And by the time you’re done, you have essentially created reasonable doubt, regardless of the redirect the prosecutor can do.

My best cross-examinations, I believe, have been my affirmative cross-examinations, where I’m dealing with someone who knows my client for 30 years, and I’m not putting the defendant on the witness stand, and I’m trying for the first day to get everything good about my client into the record that I possibly can, on the argument that it can test the witness’s memory. But I’ve turned the prosecution witness into maybe a character witness for my client. And then at the end of the day, there’s an area where I turn, and they don’t see it coming, and there’s a point or two that I want to make, and then I sit down. And the worst cross-examiners don’t know when to sit down. They get an answer that’s breathtaking, and they ask it again.

Preet Bharara: They ask another question.

Ben Brafman: It’s just crazy.

Preet Bharara: And do you ever start hot, or do you start soft and built up to hot?

Ben Brafman: It depends. It really—you know, it depends.

Preet Bharara: Yeah.

Ben Brafman: There are cases where you have to start hot because you have an arrogant, obnoxious witness who is gonna try and run the cross-examination, and you want to make sure they understand the ground rules right upfront and personal. And you know, I’ve started cross-examinations with one right between the eyes, and people say, “Why didn’t you leave that for the end?” I said, “Because I don’t need it at the end.”

Preet Bharara: Do you think prosecutors put on too many witnesses?

Ben Brafman: Yes. I think the biggest failing of prosecutors is they over-try a case, and at the end, they create doubt where none would be. If they have three people testify to the same thing, my job is to get them to be inconsistent with each other, and it’s generally pretty easy to do that, ‘cause no three people say the same thing the same exact way.

Preet Bharara: More is sometimes less.

Ben Brafman: More is sometimes much less. So, you haven’t asked me the question I’m always asked: does humor help?

Preet Bharara: No, ‘cause I know the answer to that question. Of course it does.

Ben Brafman: Okay. Can I give you one example?

Preet Bharara: Please.

Ben Brafman: All right. I had a very important FBI agent who was so full of himself that it was impossible for him to suggest that he had made a mistake or to agree that he had made a mistake. I saw it 15 times in the course of his direct examination, where prosecutors were trying their best to help him just acknowledge that it was a typo, or—no, he wouldn’t go there. And I had nothing to cross-examine him about except one little vignette that was in the line sheets, which the agents prepare when they’re on a surveillance or on a wiretap. This was a physical surveillance. Now, I’m about 5’6”, and the agent was a very big man. And I’m—now I’ve got to question him, and I have a line sheet which says the following: “Special Agent X, at 10:03 AM, did you see someone who you described as being 5’8”, wearing a navy blue suit, white shirt, and a red tie go into this garage?” And he said, “Yes.” “30 minutes later, did that man leave?” And he said, “Yes.” “And did you describe him as being 6’4”, having a blue suit, white shirt, and a red tie, exactly the clothing he wore going in?” And “Yes.” “Going in, he was 5’8”, and coming out, he was 6’4”, is that correct?” And he said, “Yes.” And I said, “Can anybody go to that garage?” And I brought the house down. And it was before a judge who just hated me. And even he laughed, and the agent was so angry that I really thought he was gonna shoot me on his way out of the courtroom.

Preet Bharara: You raised something that I think is very important, and that is the need to sometimes concede. And people don’t concede as much as they should. That’s true in politics, it’s true in business negotiations, and it’s true in the law. You know, you get these people, they come in, and they don’t want to give up on any point at all. And one thing you’re taught as a prosecutor, at least I was, and I think it’s good training, that if there’s something that is not in your favor, concede it and say why it’s not important. But you earn credibility that way, and you earn trust that way. I see a lot of lawyers unlike you who will never give on any point, and they think that’s what fighting is. That’s what losing is, often.

Ben Brafman: I agree. And you have clients who refuse to let you stipulate sometimes because they want to fight on everything. And in the cases where I’ve stipulated, when the stipulation is read, I’ve stood up in front of juries with the stipulation and said, “They didn’t prove this.” I agreed.

Preet Bharara: What’s the biggest mistake people make when they’re arguing to a jury?

Ben Brafman: I think not having eye contact with the jurors they’re trying to influence. I think it’s a mistake that they sometimes talk down to people. I think they sometimes talk over peoples’ heads. You know, I’m a person who law firms come to on occasion, not criminal defense lawyers. I’ve tried cases for law firms who say, “This is such a complicated case, we need to make it jury-friendly.” I’ve been taught, and I’ve learned, and I believe that every case has a heart. And you need to find the heart, and you need to either expose it or cover it up, depending on what you’re trying to accomplish.

And I really think that sometimes, making a case jury-friendly when the other side isn’t gets the jury to rely on you. They get to see you as the honest broker. They see you and the judge as the person who’s not trying to confuse and obfuscate, and that you’re the person who’s gonna enlighten them.

Preet Bharara: Right. Well, that’s exactly the direction we give to prosecutors, that you have to be the reliable one. That’s why you concede when the point is worth conceding. That’s why you don’t overstate. That’s why you don’t exaggerate. That’s why you don’t get emotional, because you have to be the definitive voice of truth in the courtroom.

Ben Brafman: Well, I’ll tell you one thing prosecutors don’t get a lot of experience in, and that is cross-examinations. You know, ‘cause very few defendants take the witness stand, and very few witnesses are called that are substantive, so you don’t develop cross-examination skills. Developing cross-examination skills makes you a better trial lawyer, but developing direct examination skills over and over and over again, sometimes you sound boring, sometimes there’s no personality. When I was a prosecutor, I think I was an interesting prosecutor. I tried to tell a very emotional story.

Preet Bharara: Emotional story, [crosstalk] story. Right.

Ben Brafman: Interesting story. Made it into a story.

Preet Bharara: Look, the best prosecutors also understand that every case has a heart, and it’s not just about if you want to win at the trial, prevail and get the conviction at the trial—that you have to make the case about something. And most opening statements of out my office began with a simple declarative sentence—not all, but most—“This is a case about X.”

Ben Brafman: Right.

Preet Bharara: This is a case about greed. This is a case about corruption of power. This is a case about, you know, you name it, because even though you don’t have to prove what the case is about, and they understand the story that’s being told, it is not necessary to prove motive for most crimes. You know, you did the thing. You shot the guy. You had the intent to shoot the guy. That could be homicide. But motive matters to normal people—

Ben Brafman: Right.

Preet Bharara: d—who are curious about human behavior and conduct. And before they’re gonna decide to find someone guilty, they want to understand why, even if the law doesn’t require you to prove it.

Ben Brafman: You know, when I grew up in this profession, and people were telling me when I started as a defense lawyer, “Don’t give an opening statement, because you’re not gonna know what the evidence is, and you might say something that you’re not gonna be able to prove.” And I, you know, was mentored a little bit by Herald Price Fahringer, who’s no longer alive, who was a very fine lawyer. And he said to me, he says, “Ben, you know, studies have shown that, you know, after opening statements, I mean, jurors are pretty much leaning in one way or the other. And if you’re not giving an opening statement, they’ve gotta be leaning in the way of a prosecutor, and you’ve got to play catch-up the rest of day.” And—

Preet Bharara: They probably also think that you don’t got nothin’.

Ben Brafman: Right. Right.

Preet Bharara: [Laughs] Right.

Ben Brafman: So, I’ve been able to craft opening statements that I think are interesting, they’re creative, and they intrigue a jury, even if what you’re just telling them, you know, pay attention, or even if what you say is, “Look, this witness is gonna testify. I’m asking you, when they testify, don’t just listen. Watch them. Feel that witness in the courtroom.” I mean, I had a jury almost afraid. You could see them move away from Peter Savino in the Windows trial was on the stand for nine days. I had him for three days, and he had everything taped. But there was one vignette when the jury just basically turned away, and I knew it would happen.

I said, “Mr. Savino, you killed three people.” “Yes.” And you told us on the rec that you murdered those people.” “Yes.” “And you didn’t tell us that you buried them under your desk in your office.” He said, “So?” I said, “So? You worked in that office every day for four years, and you had Louie DeNome [ph.], and Charlie Principato, and—rotting away under your desk, and that didn’t bother you?” He said, “No, why?” And jurors moved away, further away from the witness. You could physically see, it was like a wave, that just they go, “Oh my god, what a disgusting human.” They didn’t care that he had killed them. But he had buried them in his office and then sat on them for three years. It was just such a stunning moment, it really was.

Preet Bharara: Well, okay. [Laughs] So, Ben, I’ve only invited you to have a conversation with me twice in some public way. Once a few years ago, I invited you to come speak to my office, and you were gracious enough to do so. And I wanted you to speak to the prosecutors in my office to give the perspective of the defense side, ‘cause we often have people who come in who say what they expect to hear. And so, I thank you for doing that. And the second time I invited you to do something publicly is this podcast.

Ben Brafman: My pleasure. I enjoyed it very much. And to be honest with you, this is an important discussion for me, because most people don’t have a clue what I do all day, they really don’t. They think they do, but they don’t.

Preet Bharara: Well, now they know more.

Ben Brafman: Now they know more.

Preet Bharara: Thanks again.

Ben Brafman: Thank you.

[End of Audio]


STAY TUNED: The Defense (with Ben Brafman)