Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Ann, how are you?
Anne Milgram: I’m good. How you doing?
Preet Bharara: So you know how much I love you.
Anne Milgram: I love you more.
Preet Bharara: And the only thing better than Anne is two Anne’s.
Anne Milgram: True.
Preet Bharara: We have a special guest this morning.
Anne Milgram: We do.
Preet Bharara: We have Judge Anne Thompson. Anne, number one, would you care to introduce our guest?
Anne Milgram: I would love to. I’m pretty sure that I was hired by Judge Anne Thompson because we spell our name the same way with an E at the end. I graduated from NYU Law School in 1996 and immediately went to clerk for Judge Thompson who was then the chief judge of the Federal District Court in New Jersey. By the way, I would just pause for a moment to note that this is a great day because we have three people from the great state of New Jersey on the CAFE Insider Podcast.
Preet Bharara: We do.
Anne Milgram: Judge Thompson was, before she went on the bench, had been both a public defender and a municipal prosecutor. She’s a trailblazer.
Judge Anne T.: And the county prosecutor, please don’t leave that out.
Anne Milgram: In trouble already. Yes, and the county prosecutor. And appointed by Governor Byrne to be the county prosecutor, and then put on the Federal bench in 1979 by Jimmy Carter, and was the first African-American Federal judge in the state of New Jersey and the third African-American female judge in the entire United States. Is that right?
Judge Anne T.: I’m not sure.
Anne Milgram: Okay. Well, hopefully correct.
Preet Bharara: Judge, thank you for joining us.
Judge Anne T.: Well, I am delighted and honored to be here.
Preet Bharara: May I ask a first question?
Judge Anne T.: All right.
Preet Bharara: So what was Anne like as a law clerk? Was she your favorite?
Anne Milgram: Objection.
Judge Anne T.: She was terrific. She came to work about 9:25 in the morning because she was training for a marathon.
Anne Milgram: Late. Let me just say that for all the listeners.
Judge Anne T.: She was so New York. I mean, she was wonderful. She was stylish, enthusiastic. I was serving on a commission task force-
Anne Milgram: The Third Circuit commission on race.
Judge Anne T.: To evaluate and to study equal treatment in the courts.
Anne Milgram: That’s right.
Judge Anne T.: And we would go to seminars and panel discussions in Delaware. And we just became very close. Oatmeal, raisin, cookies.
Preet Bharara: I’m not hearing any law.
Anne Milgram: There were some law.
Judge Anne T.: That was sort of [crosstalk 00:02:21]
Anne Milgram: We did a lot of law.
Judge Anne T.: It was the background, but we didn’t focus on that.
Anne Milgram: It was a part of the deal, but we actually … I will say this. I went into my clerkship not sure if I would ever practice, in fact, thinking I would not practice law. And then judge Thompson being a former prosecutor, the one thing you always said was get in the courtroom, listen to the trials, watch the trials, and I absolutely fell in love with being in the courtroom, and that’s what made me want to be a prosecutor.
Preet Bharara: What did you think you were going to do if not practice law?
Anne Milgram: I thought I … I’d a congressional page in high school. I was interested in policy and government and I wasn’t sure. In law school, candidly, compared to the practice of law can be a bit boring, in my view. I mean, the law is very important, but law schools … I had a wonderful time. But it’s a very intense black letter law. You don’t get to see the application of the law and practice. And so when you get to clerk and you see it, it was a big aha moment for me.
Preet Bharara: Judge, did in from time to time in reading a brief, laugh uproariously because she couldn’t keep a straight … Every once in a while on the show, Anne can’t read a document because she begins to laugh.
Anne Milgram: In my defense-
Preet Bharara: Let’s the judge answer. Thank you.
Judge Anne T.: Well, I don’t remember that. But one thing I do remember, when she was sworn in as attorney general, she said something, she gave me such credit for loving what you do. She quoted me, supposedly, that I had said, “I was always shocked when I would get a paycheck because I hadn’t thought of what I do as working.”
Anne Milgram: Yeah, I remember.
Judge Anne T.: When I was county prosecutor, I loved it. I was scared to death when Governor interviewed me. I thought, oh my God, my stomach turned over at the very thought of being the county prosecutor. 21 counties in New Jersey, the governor appoints. No election, no having to run for office. Here I was, they never had a woman. He had sent, I understand, a little team to watch me as a municipal court judge, which was the job. I had part time to $15,000 a year in the Trenton Municipal Traffic Court. He had sent a team sitting to watch. [crosstalk 00:04:29]. Yeah. But he actually took a chance on me. I really felt that way, that he took a chance on me.
Anne Milgram: So judge, one reason you’re sitting here today is that you and I have been emailing because you read a certain book and fell in love with it. I don’t want to name names.
Judge Anne T.: Doing Justice.
Preet Bharara: By me?
Anne Milgram: Yeah.
Judge Anne T.: Yes.
Anne Milgram: And you said it really resonated with you.
Judge Anne T.: I loved it. I loved it. I read all the time. I don’t know when I read a book in recent memory of years that I loved as much as this book. Now, somehow I’ve never met or seen Preet before except on television. But your book resonated with me. It identified with the way I feel about court, about the law, about what we try to do. I loved your book.
Anne Milgram: I think you should retire now.
Preet Bharara: Ladies and gentlemen, I’m done. I’m never writing anything else again. That’s about as nice of things anyone said. Thank you, judge.
Judge Anne T.: Well, I really meant it. I wouldn’t say it if I didn’t really mean it.
Anne Milgram: And I’d also point out that we learned earlier today that when I was a law clerk we read, every day at lunch, we had sort of a chambers book club for Jeff Tobin’s book at the time, The People Versus O.J. Simpson, and it sounds like your book is the book of the chambers book club this year.
Preet Bharara: I guess so.
Anne Milgram: So all the incoming law clerks, I should just buy them copies so they’ll be prepared of doing justice.
Judge Anne T.: I’ve told everybody I know how much I love that book.
Preet Bharara: One of the things I write about in the book is how difficult a job it is for a judge to sentence someone. Is that true.
Judge Anne T.: Oh, my goodness. Yes. You can’t over describe the difficulty. Because that’s not what you learn in law school. There’s no law really. Sure, you could go to the federal sentencing guidelines. But that doesn’t do it for you. That individual person before you, and each one is unique. I’ve been at this now almost 40 years. It’ll be 40 years in November. Can you believe?
Anne Milgram: That’s amazing.
Judge Anne T.: But each single human being is different, and has his own story and his own burdens and his own handicaps and his own advantages. And all of that really has to be considered when you think about imposing jail. Not so much to fine, but jail, and what that means.
Anne Milgram: Judge, thank you so much for coming on with us.
Judge Anne T.: Well, thank you for having me.
Preet Bharara: Your honor, thank you. I kind of feel like we should have been standing up.
Anne Milgram: I know. We should [crosstalk 00:07:03]
Preet Bharara: Addressing the court. But I’m sitting down. I feel that’s not correct.
Anne Milgram: May it please the court. I forgot to admit that in the interest of declaring all conflicts that the judge married me, along with the chief justice.
Preet Bharara: That’s nice.
Anne Milgram: Thanks, judge.
Preet Bharara: That was very lovely. Having a judge who now remains an observer.
Anne Milgram: Yes.
Preet Bharara: With the rest of the folks.
Anne Milgram: I can still get in trouble.
Preet Bharara: How nervous were you the day you started your clerkship?
Anne Milgram: So nervous. So nervous? It’s a fascinating experience, because you don’t really learn how to be a law clerk in law school, you sort of show up and you’re working for a judge and there’s one or two other newly graduated law students and all of a sudden you’re thrown into helping the judge to decide motions and listening to oral arguments. What about you?
Preet Bharara: I didn’t clerk.
Anne Milgram: You didn’t.
Preet Bharara: I didn’t. Ask me why.
Anne Milgram: Why?
Preet Bharara: I couldn’t get one.
Anne Milgram: No.
Preet Bharara: Yeah. So everyone listening out there, you think it’s the end of world if you’re an ambitious young lawyer or law student and you want to clerk and you think that that’s necessary to becoming … For example, the US Attorney for the Southern District of New York, he did not.
Anne Milgram: Well, I’m glad that you didn’t tell Judge Thompson this before because she would have hired you over me. That’s so great. I do think there’s a lot of focus put on clerkships and too much focus in today’s world. It’s an amazing job, and I changed my career, but it’s not essential by any means.
Preet Bharara: So we got a few things to talk about this week. You want to first talk about Michael Flynn?
Anne Milgram: Yeah.
Preet Bharara: The former National Security Advisor to the President, short-lived.
Anne Milgram: And we can talk about another lawyer as well, John Dowd.
Preet Bharara: John Dowd, who was once upon a time, lawyer to the President, United States. And we’ve known already for some time, that there were conversations between John Dowd on behalf of the President with Michael Flynn’s lawyer. I remember when Michael Flynn was being investigated, and the various things were going on, there was the question of whether Michael Flynn would flip or not flip, whether he could be pardoned or not pardoned and the same kinds of things happened with Manafort and others. We did have a transcript of a voicemail, which is an odd thing for a lawyer to do. Leave a voicemail for Michael Flynn’s lawyer on November 22, 2017. But then by court order, now publicly available, is the actual recording, the sound. And sometimes the sound, do you agree, is better than the transcript.
Anne Milgram: Yes, I agree. And also, it’s worth pointing out that this was listed in Mueller’s Report. This is one of the 10 potential 10 or 11 instances of obstruction of justice potentially laid out. Muller really comes to this conclusion that because of privilege issues, they weren’t able to get a lot more information. Dowd, of course, represented the president. Flynn was represented by a guy named Rob Kelner at the time, and so clients and lawyers have privilege for confidential communications in order to get the best legal representation possible. And so Muller basically says, I can’t tell you more because of these privilege issues, but it raised obviously a lot of questions.
Preet Bharara: So this call, the voicemail, is not a good look. Let’s listen to the call.
John Dowd: Hey, Rob, this is John again. I’m sympathetic, I understand your situation, but let me see if I can state it in starker terms. If you have, and it wouldn’t surprise me if you’ve gone on to make a deal with and work with the government. I understand that you can’t join the joint defense, so that’s one thing. If, on the other hand, there’s information that implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know. Some issue, we got to deal with. Not only for the President, but for the country.
John Dowd: So, we need some kind of heads up just for the sake of protecting all our interests, if we can, without you having to give up any confidential information. So, and if it’s the former, then, remember what we’ve always said about the President and his feelings toward Flynn. I know that still remains. Well, in any event, let me know and I appreciate your listening and taking the time. Thanks, Pal.
Preet Bharara: Thanks, Pal.
Anne Milgram: That’s a long message.
Preet Bharara: So in the interest of full disclosure, I may have mentioned this before. I’ve had cases opposite John Dowd. He represented a big hedge fund guy named Raj Rajaratnam who we convict of insider trading.
Anne Milgram: You went to trial on that. The office went to trial.
Preet Bharara: We did. The office went to trial. His client was convicted, got 11 years in prison. During the course of that trial, John Dowd made various other statements on the record, including sending late night emails to reporters, accusing them of, I don’t know if I should say, this is a family show of sucking Preet’s teat. I don’t recall that ever happening. But he put that in an email. He also, I think gave the finger to a reporter who asked him about the verdict.
Preet Bharara: He also was reported some months ago that he and Ty Cobb and other lawyer for the president, were sitting outside a restaurant loudly talking about confidential matters relating to the representation of the President. John Dowd, whatever you think of his legal skill, is someone who on multiple occasions doesn’t necessarily show the best discretion in what he says.
Anne Milgram: It’s a bold move to also leave this on a voicemail. What’s the national security issue, Preet?
Preet Bharara: I don’t know.
Anne Milgram: Yeah. I sort of listened to it and I thought, well, first of all, if you’re part of the joint defense agreement, it means that there are a number of people who are potential defendants, your lawyers share information, you’re together, and you have the ability and that remains privilege behind that sort of joint defense agreement. But the minute he steps out of that, he’s on his own, and the other folks can continue to share information, but you don’t have privilege with those other people anymore. So that’s when lawyers and defendants, people who are about to cooperate, stop talking completely.
Anne Milgram: This is what happens, mean, this is normal. And so for John Dowd to call and try to pry out information by arguing that it could impact national security. I kept thinking, well, what’s the impact to national security that Donald Trump may be guilty of committing obstruction of justice? It just-
Preet Bharara: Well, I’m angered Donald Trump and … Donald Trump is angry. That’s a national security problem, which I think we maybe come to learn.
Anne Milgram: Yeah. Flynn was not the National Security Advisor at the time.
Preet Bharara: Obviously, he’d been fired, right?
Anne Milgram: Yeah. There’s also in the two parts I focused on … First, this whole what I think is a really speculative and somewhat absurd argument that there’s a national security issue. And then the second is that the President’s feelings towards Flynn. I mean, basically reminding Flynn’s lawyer that, hey, the President’s warm feelings towards Flynn, and you sort of know that and what’s implied but not stated is, if you testify against the president, that changes.
Preet Bharara: Right. And that’s the issue with a lot of these things, these conversations. Whether you’re talking about a conversation between John Dowd and Michael Flynn’s lawyer or conversations between Michael Cohen, a different presidential lawyer and the president. When people are trying to send messages, they don’t always use the plainest terms, but people understand what’s being conveyed. What’s being conveyed here is, the President has warm and fuzzys about you, and a little bit, you wouldn’t want that to change.
Preet Bharara: It was significant enough, that as you point out, it’s one of the incidents mentioned in the Mueller Report. But the problem ultimately for trying to say more than what was said in the Mueller Report is based on privileged and other reasons. We don’t know and Mueller’s team could not establish Whether or not that phone call was directed by the president.
Anne Milgram: And remember, the President was never interviewed by Robert Mueller and John Dowd was not interviewed. He was involved with Mueller in his role, formerly representing the president as a lawyer. He wasn’t interviewed as to, hey, what did you mean? Did the president tell you to make that call? So none of that information was ever discovered by Mueller.
Preet Bharara: There’s been a lot of discussion about this voice message. I’ve heard people say, sounds like a mob lawyer, and it sounds kind of thuggish, and there’s a lot of overtones. Do you believe that this call alone constitutes to crime?
Anne Milgram: I don’t. I think … So there’s a couple things. One is, it certainly it’s wrong and Dowd shouldn’t have been doing it in the way that he did it. In fact, my view would be at that point, once Flynn is out of the joint defense agreement, that’s it. And that’s the end of those conversations. So there’s no question in my mind that Dowd was trying to wield influence, and he obviously represents the president of United States and so he has a lot of influence to wield. But on its face without knowing more, it looks like terrible judgment. And obviously, potentially intended to stop Flynn from feeling comfortable cooperating, but it sort of comes close to that line. But a crime, to me, we would need to know more.
Preet Bharara: I think we need a lot more.
Anne Milgram: Yeah.
Preet Bharara: Should Bob Mueller have interviewed John Dowd?
Anne Milgram: That’s such a complicated question. I mean, as a rule there have been prosecutions of lawyers, obviously. And there are some famous examples of John Gotti’s lawyer, Bruce Cutler, being removed as John Gotti’s lawyer, because Cutler was really a part of the organization, was caught on a wire in the social club with John Gotti and other leaders of the family. This is one of those things that where the normal course would be not to interview Dowd, because you would make Dowd a witness in this case, and Dowd was still representing the President of the United States.
Anne Milgram: I think there could come a point at which you had sufficient evidence to believe that a crime was committed, and it would, in my view, need to be more than just this one voicemail. It would need to be a promise of a quid in exchange for not cooperating or something more overt than just this. But you could see circumstances in which it would happen, but they’re very rare. I’d love to hear what you think. It just feels to me like something Robert Mueller and investigators wouldn’t do, unless there was an extraordinary circumstance.
Preet Bharara: Yeah. Like, at some point, John Dowd, was no longer the President’s lawyer, and they had evidence of this voicemail. And it seems if you’re going down and checking all the boxes, you wouldn’t be the lawyer. I’m not going to second guess what Bob Mueller did or didn’t do. I mean, in a different circumstance, they investigated at great length, the White House Counsel, Don McGahn, who’s not the President personal lawyer. So it’s different, I understand. But lawyers do get interviewed and lawyers can sometimes be important witnesses to crimes.
Anne Milgram: Sure. And sometimes they get charged with crimes. Just because you’re a lawyer, you’re not off the table, I think is exactly right. What do you think about Michael Flynn firing his lawyers and switching to new lawyers? I didn’t see who his new attorneys are. I don’t know if they’ve announced them yet. But he’s about to be sentenced. He’s literally on the sort of eve of sentencing. And all of a sudden, he says, I’m want new lawyers. Yeah. What do you make of that?
Preet Bharara: So that happens all the time. You and I have seen it. A defendant gets nervous or where defendant loses confidence in the representation and thinks maybe someone else can do something better for him. Maybe he regrets having pled guilty or pleaded guilty?
Anne Milgram: Do you think he might … I haven’t listened to that part of the stay tuned podcast yet to hear the grammar.
Preet Bharara: It’s pled. This has been-
Anne Milgram: We should have asked the judge.
Preet Bharara: Ask Benjamin [Dwod 00:18:34]. No, because judges tend to go with pleaded. In fact, I will not reveal their names, but I got an email from the sitting district court judge copying for other district court judges.
Anne Milgram: Agreeing on pleaded.
Preet Bharara: Saying it’s pleaded. They don’t have.
Anne Milgram: Case closed. As the president says.
Preet Bharara: But you know what, they don’t have podcasts.
Anne Milgram: Right. Because their federal judges. I don’t know if they can, but yes, okay.
Preet Bharara: I don’t know, maybe somebody should. Judge [Reyco 00:18:59] maybe should have a podcast. So maybe he wants to withdraw his guilty plea, as you and I both know, it’s not as simple as that. Once you plead guilty and there’s been an allocution and a full-on proceeding, under Rule 11 of the Federal Rules of criminal procedure, you can’t just say, hey, I changed my mind and undo it. There are circumstances in which you can, but this doesn’t seem like one of them.
Anne Milgram: Yeah, it looks like he got rattled. I mean, I think he expected to go into court a number of months ago and have the judge sentence him. The government was asking for no incarceration, and so I think he thought I’ll walk out with probation. And then the judge made it very clear that it wasn’t going to go the way that the government or Flynn, I think, wanted it to go and ask Flynn if he wanted to continue his sentencing. And he and his lawyers decided, yes. But I bet that shook him up a fair amount. So that’s my guess for why he would make this change.
Preet Bharara: Should we move on to another legal case that’s a bit far afield from the Mueller investigation, although it’s something that everyone in the country knows about, and that Donald Trump has commented on. That is in connection with the Parkland shooting where 17 people were killed by an armed person. The school safety officer, is that the title?
Anne Milgram: Yes, school resource officer.
Preet Bharara: The school resource officer from Broward County, Florida, Scott Peterson. He was charged with a number of crimes.
Anne Milgram: Yes.
Preet Bharara: So what was he charged with?
Anne Milgram: He was charged with seven counts of child neglect with great bodily harm, three counts of culpable negligence and exposure to harm and one count of perjury, essentially lying. And he now faces up to 97 years in jail.
Preet Bharara: That’s essentially because he arrived on the scene, didn’t go in, retreated a little bit. Then apparently, law enforcement officials didn’t believe that he’d only heard a couple of the shots when there were lots and lots of shots. You ever prosecuted a case like that?
Anne Milgram: No, I haven’t prosecuted a case like this. What’s really interesting when you read the charges, what is fascinating, and I think we know this, but reading it again yesterday really brought it home. It’s just how quickly these things happen. So the shooting started around 12:19 in the afternoon. It looks like the shooting started to 2:19, but it looks like he didn’t get to the actual location. The indictment … I can read again, the indictment looks like I think it was like 2:24.
Anne Milgram: So Peterson gets to the area right outside the school at 2:24 and the shooting continues until 2:27. So what’s at issue in the charges, essentially comes down to what did he do during that sort of three, four-minute period? And should he have entered the school? What’s interesting, there are a number of things that sort of break down. But the first point is that he was trained two years prior to this. He did a four-hour training on active shooters in schools, he was certified as someone who was trained in sort of these types of situations.
Anne Milgram: He’d been the school resource officer at Marjory Stoneman Douglas for I think eight years. So the training, and this is part of the charges, the training is that when you get there, whether you’re alone or with other folks, the idea is to prioritize the victims and the hostages and potential situations and essentially run towards the shooting.
Preet Bharara: Yeah. So reading from the actual training as it’s described in the publicly file documents makes your hair stand on end a little bit. Let’s read it. “During the training, deputies were instructed on what a single deputy response should entail by being advised that remember, every time you hear a gunshot in an active shooter incident, you have to believe that is another victim being killed. Furthermore, the training describes the priorities of life was; one, hostages victims. Two, innocent bystanders. Three, police/deputies and four, suspects. If in doubt about going through the door after a suspect, think about the victims and where they stand on the list. That’s pretty potent.
Anne Milgram: It’s pretty powerful. What’s important also is that the old training was you wait until you have backup. So the old training was you don’t enter, an individual officer wouldn’t enter a location with a shooter on their own, they would wait for at least one or more other officers. That has changed because the rapid nature of these incidents is that you can’t wait for backup. It could be a minute, it could be five minutes. And so the idea now is you go in immediately you, go to the location, you follow the sound of the gunshots or students or people running the other direction, and you keep running towards the harm until you get there.
Anne Milgram: What a number of witnesses said about Peterson is that he sort of took cover outside next to one of the buildings. He had his weapon drawn. He was on his radios. He’s got two radios, one connected to the sheriff’s office, one connected to the school and he’s constantly … There’s radio transmissions where he’s saying what location they’re in and so on. But he doesn’t go in. And to your point then, when he’s interviewed, he says … There are a couple things he says. One is, I thought it was an act of snipers. So I thought it was someone outside the building. It’s easy to understand someone being confused when you first get to a scene. But it’s hard to imagine that it wasn’t clear pretty quickly what was happening.
Anne Milgram: The second piece is that … So he says he thinks it’s a sniper. But he also says as you noted, I heard a few shots. It’s clear that there were something like I think 140 magazine rounds. He had an semi-automatic rifle, he’s got rapid fire shooting that’s happening. And so it’s clear that there’s just a barrage of bullets that are firing.
Preet Bharara: And no silencer like we’ve seen it other incidents.
Anne Milgram: And so people describe it as at first they thought it was firecrackers. I mean, it’s not … For people who haven’t heard gunshots up close, it’s not quiet, it is incredibly loud. I think there’s a couple things that are worth talking about. The first statute, I find this unusual. There’s a lot to be said about when people have affirmative duties to do things, because this is unlike a lot of things you and I talked about frequently, which is, somebody does something that violates the law. This is an omission, he did not do something that his training told him to do, which is to enter the situation and try to find the gunman. But this is different than a lot of things we talk about.
Anne Milgram: So basically, the first count goes to child neglect with great bodily harm. What’s really interesting about that is that, that is a law that is usually done when people are in custody. So think about someone who’s actually being held in a prison, and there’s an affirmative duty to care for people that are within your control. So the seven counts come under Chapter 827 of the Florida code Abuse of Children.
Anne Milgram: So the Florida code basically talks about aggravated abuse and neglect of a child, and goes on to basically talk about a caregivers failure to make a reasonable effort to protect a child from abuse, neglect or exploitation by another person, as well as a caregivers failure or omission to provide a child with the care, supervision and services necessary to maintain the child’s physical and mental health, including but not limited to food, nutrition, clothing, shelter, supervision, medicine and medical services.
Anne Milgram: What’s really interesting about this is that the standard here is culpable negligence. Culpable negligence is defined as, and I’m reading from something I found on one of the Florida jury charges, and there could be many other versions of this. But essentially, it’s the idea that there’s a duty to act reasonably towards other. And for negligence to be culpable, it must be gross and flagrant. And is a course of conduct showing reckless disregard for human life or for the safety of persons exposed to it’s dangerous effects. So what they’ve done is take a law that is often applied to children who are within the custody and care and said, this is probable negligence because you were outside, you knew that there was a grave risk to the health and well-being of children, and you stayed outside.
Preet Bharara: Yeah. I mean, the particulars we can read them too. Is he accused of failing, declining, or refusing to a attempt to investigate the source of the gunshots? Fleeing approximately 75 feet from the building. Failing, declining or refusing to move toward the sound of gunfire, and/or failing, declining or refusing to seek out, confront or engage the shooter. What’s interesting about this is, I don’t know how unusual an application of this statute it is. I’ve never prosecuted something like this either. But I was not a state prosecutor. But separately, there had been civil suits brought. In one in particular in which some of the victims families in Parkland have sued claiming that a duty was owed.
Anne Milgram: There’s two civil suits. They have filed one federal and one state.
Preet Bharara: So in the federal civil suit, the district court judge found that Broward schools and the sheriff’s office had no legal duty to protect students during the shooting. In the state court, it was a different result.
Anne Milgram: Yes. And the state court judge said that there is a special relationship between school resource officers and children. I think that this whole prosecution really will hinge on whether there is the a special duty of care between a school resource officer and children if he’s essentially considered to be a caregiver under the law. Under the statute, I just read from Florida, the question will be, is a school resource officer a caregiver? Because that’s how the statute has been interpreted.
Anne Milgram: What’s really interesting, Preet, if you and I think about other examples of this. So think about many high schools across America have school resource officers, have police officers at the entrance, they’ve got metal detectors now that kids go through with backpacks. What if there’s an officer who’s screening the kids entering and there’s a weapon in the backpack that the officer misses. Some kid enters, could the families … Could you end up having lawsuits brought against those officers because they’re on school property, they have a duty of care? It’s a really interesting question of where that line gets drawn.
Preet Bharara: I’ve got no … So on the civil side, it’s sort of interesting, I guess, and you’ll have different judges come to different conclusions. These issues will hinge on what you described, the definition of special relationship, was there a duty of care, et cetera. What’s unusual to me is a criminal charge.
Anne Milgram: Yes.
Preet Bharara: And the idea that you have to now prove that beyond a reasonable doubt. It’s not about some county or some school board or educational agency having to pay some money as a fine or as compensation, but someone going to prison. Now, I think you’re also correct. In the criminal case, it’s going to depend on the definitions of these words. But when they go to trial, assuming he goes to trial, people are going to think about what is just and right in the case. And clearly, Scott Peterson failed at his job.
Preet Bharara: Clearly, he is not owed and will not get sympathy from anyone. Clearly, he was a coward. Clearly, he should have run towards the gunfire, not just because the training because that is what you do. And there’s there’s no excuse for it. I’m thinking that when jurors are sitting there, and they’re hearing the evidence, and we don’t know how it’ll play out, and we don’t know what kind of defense he will mount, but I think you’re on target. They’re going to want to convict this guy.
Anne Milgram: I agree. I agree with that. I also think that there is something about kids in a school, in my view, that we require kids to go to school. And so it’s not optional, up to a certain age, the kids must be in school. We have this concept of in loco parentis, meaning that the teachers and the people, the administrators in the school are essentially caring for those kids while they’re not home with their families, because again, they’re under the age of majority. And so it feels weird to say that there isn’t an obligation, particularly amongst people whose job duties include protecting the school.
Preet Bharara: That’s his main job.
Anne Milgram: It’s his job.
Preet Bharara: Yes, general safety. But the thing that people are concerned about in America, and this is long before Parkland, is people don’t want to say I know you have kids, I have kids, we send those kids to school. The person who’s responsible for their safety, the most important thing you want from them is to protect our children from an active shooter. That’s the thing you train for. That’s the the worst case scenario. That’s the thing that the parents worry about and have nightmares about when they put their kids on a school bus, is will they be protected from an active shooter? That’s the one thing that he had to do. And he didn’t do it.
Anne Milgram: And it’s not just parents, I think, who are worried about this now. It’s kids. I mean, if you sort of see what’s happening, I mean, there are a lot of kids who go to school now and are scared to go to school. That’s a terrible thing to see happen. So here’s something that I was thinking about, as I was reading through all this, which is to do this criminally, is pretty aggressive. And obviously, I think it’s also important for us just to say that, obviously, the shooter bears responsibility for murdering 17 adults and children as well as injuring 17 other people, children and adults that day. So I don’t want any of this conversation to distract from the fact that the shooter is the primarily responsible person.
Anne Milgram: This gets to questions of what obligations do schools have to protect children? And is it a crime for somebody to fail to do their job? One of the things I was thinking about, and I know that this is a stretch, but they basically stepped back and said, Mr. Peterson, your job was to … Deputy Peterson, your job was to go in there and to protect those kids. There was a moment when I was thinking, what about the governor? What about all of the legislators who fail to acknowledge the importance of restrictions on guns and to deal with what we have in America, which I think is a crisis that has come in many ways from political cowardice and people unwilling to accept and have the conversation about what’s happening. So I sort of had this funny moment of thinking, well, could they be prosecuted?
Preet Bharara: That’s that’s a tougher criminal case.
Anne Milgram: Yes. I think the answer is no. But it does raise this question of like, we’re holding the sort of low level school resource officer accountable for basically protecting the entire school and none of us know what would have happened if he’d run it. What we’re basically just saying is he should have run it, and he didn’t do his duty.
Preet Bharara: But what was also interesting is, this is a pretty stark case. And presumably, the prosecutors brought the case, even though it’s a little bit unusual, because the facts are so compelling. He must have heard the shots, he had particularized training, he fled and retreated 75 yards from his initial position. Now imagine he did more. He didn’t run in, but he was more tentative about it. He approached the school, maybe he even got inside the school-
Anne Milgram: And then came out or something.
Preet Bharara: He came out or maybe … You could hypothesize a lot of different scenarios, where he was still negligent and didn’t do what he was supposed to do, and was still a little bit cowardly. But not a stark as this.
Anne Milgram: Where I think he wouldn’t have been prosecuted.
Preet Bharara: Probably not.
Anne Milgram: I agree. He may have been prosecuted on the perjury question, because I think that’s the cleaner version of you’ve got everybody outside near him saying, I heard a barrage of gunshots. And he’s the one person saying, no, there were only a few. I probably should have heard more, but I didn’t hear them. So it feels just impossible that that’s true. But the other things, I agree with. I mean, if he had entered … If he had taken shots, other than to sort of … He was essentially securing his personal safety and trying to be coordinating the response, telling people were to go, telling law enforcement, here, when you’re coming. But he never went inside and he didn’t do what he was trying to do or what was expected of him. So you’re right, if it was less stark, if he’d gone in, I think that this is not a charge.
Preet Bharara: The other reason you bring charges is to deter or incentivize people to engage in particular conduct. Now you’re a school resource officer, anywhere in the country.
Anne Milgram: I was thinking about this too.
Preet Bharara: You know about this case. And if the training didn’t work for you, presumably, this case sends a message to you that if you’re in the same situation as Scott Peterson found himself and God forbid, you run towards the gun.
Anne Milgram: Right. Don’t you think also, though, that the school resource officers today, following these charges are probably saying something along the lines of the following things. Fine, you care about this, we care about this. But four hours of training two years before is not sufficient to hold someone accountable or to basically expect someone to go into a building. And if you want us to do that, you got to give us more.
Anne Milgram: I’m not in any way justifying it. But I do think when I saw that the training was four hours, two years before that, and there were constant emails and updates coming through. But there is a way in which we do expect a lot of school resource officers, and it’s really important that we train them sufficiently and practice them and do active shooter drills so that we actually know, does the deputy run towards the building or does the deputy run out?
Preet Bharara: What’s the implication of this case for thinking about the arming of teachers? So some people think that that’s a great idea and your arm teachers. I happen to think, it’s not a great idea. I don’t know any serious law enforcement professional who thinks that’s a really good idea. We had commissioner of New York City Police Department here some months ago, he thought it was not a good idea. Teachers should be teaching and educating and not responsible for active shooter situations. But hear you even have a school resource official who didn’t do the job right. I don’t know why we should have an expectation that if you give to some Phys Ed teachers or history teachers or algebra teachers, your gun and a few minutes of training, that that’s going to do a lot.
Anne Milgram: Also, then do they have an expectation that they have to do essentially what a law enforcement person would do. One thing to note is that there is a distinction here in that Peterson was a sworn, he was a sworn law enforcement officer. So we’re talking about him as a school resource officer, but he was armed. He was a full member of the sheriff’s department. So that is an important distinction.
Preet Bharara: He was a law enforcement official?
Anne Milgram: Yes. Definitely a case for us to watch.
Preet Bharara: So that’s an interesting case. I guess we’ll we’ll see what happens there.
Anne Milgram: Yeah. We’ll watch the legal back and forth and then potentially a trial.
Preet Bharara: So another old case is back in the news, not because there’s been some legal development, but because there’s been a Netflix show. We’re talking about the Central Park Five, which was a huge deal in New York, both in 1989 when it happened, in 1990 when five boys were convicted. And a lot of the drama around that and things that various people said about dealing with the problem of crime in New York and in Central Park, specifically. The new Netflix series made by Ava DuVernay, getting a lot of attention, because it is bringing back into people’s consciousness what happened in the case.
Preet Bharara: So people may remember that in 1989, there was the case of the famous, as she was known in New York and around the country, The Central Park Jogger. Who went jogging one evening, April 19th of 1989. She was assaulted and beaten and raped. A short time later, five African-American boys ranging in age from 14 to 16 were taken into custody, interrogated to varying degrees, made some statements that implicated themselves. There was a trial-
Anne Milgram: Two trial.
Preet Bharara: No, two trials in 1990. They were convicted and sent to prison.
Anne Milgram: Serving sentences between 6 and 13 years before being exonerated in 2002.
Preet Bharara: So fast forward to 2002 and someone who was serving a sentence for murder and rape in separate incidents, a man by the name of Matias Reyes was serving a prison sentence at a place where one of the Central Park Five defendants was also serving. And according to Reyes, he suddenly appreciated that someone else was serving time for this rape that he committed with respect to the Central Park Jogger. He began to take various actions to tell people about it and wanting to come forward and verified Reyes himself was a brutal serial rapist and killed a woman.
Preet Bharara: But for whatever reason, he had some kind of attack of conscience and came forward. And to make a long story short, submitted DNA samples, which ended up matching DNA found in semen from the victim, both on her person and on her sock. Definitively proving at a very minimum Reyes had been one of the perpetrators. So that established 100% that Reyes was a perpetrator and had raped the victim. Secondly, and more importantly with respect to the Central Park Five, he claimed he acted alone. So those two things together. The first, it’s impossible not to believe, and the second if you do believe definitively would exonerate the Central Park Five.
Preet Bharara: We thought it was important to talk about because it’s much in the news. I have not seen the series yet. And I don’t know what kind of license was taken, because it’s a fictionalized scripted series, and how much deviation there is from the facts. You can build a certain emotional narrative and plot line in movies like that, so I don’t know. I think you and I will both watch and we can talk about it some more. But even before watching, we thought we talked about it a little bit.
Anne Milgram: I also haven’t seen the series. It’s been the talk of the sort of legal community, I think, for the past week or so. I also didn’t see the documentary. I should say, I worked in the Manhattan DA’s office many years later. I had no connection or overlap at all with this case. There’s one thing you just said, Preet. This also comes from your book, going back to Doing Justice, which is you have a story of a wrongful conviction, of an exoneration that is led by an amazing detective that’s on your detective squad when you were the US Attorney in the Southern District.
Anne Milgram: There’s a lot of chance in that. I mean, there’s some great detective work in the story you tell, but there’s also just a lot of luck in it being the same detective who happens to be able to put the pieces together in your story of someone being wrongfully convicted. There’s an incredible amount of luck here, that these two guys are in the same facility. They’re both at the same facility, and Matias Reyes sees this guy who happens to be incarcerated in the same place, and then comes forward following that.
Anne Milgram: But for that overlap I walk out of reading up on the case thinking, we might never have known that and these five young men between the ages of 14 and 16. There’s something about it that’s very chilling to me when we think about the fact that the right thing ultimately seems to have happened, but that it’s but for the grace of God go I, that it came to the attention of the authorities.
Preet Bharara: I guess, in analyzing the case, and I’m not an expert, there are two distinct periods of time that you think about. One is in 1989 and 1990 when the DA’s office and the NYPD were investigating the case, did they act appropriately? Did they do what they were supposed to do? Did they keep an open mind? Did they conduct the interrogations correctly and appropriately and fairly?
Preet Bharara: Then separate from that, in 2002, when Matias Reyes comes forward, did the Manhattan DA’s office and the various people associated with the case and the NYPD and everyone else, do the things that were appropriate to do in a sufficiently fair and just and thorough and expeditious way to make what had been a wrong, correct? I know less about what happened 1989 and 1990. You and I both read an affirmation in connection with the motion to vacate the judgment in 2002 by Nancy Ryan, who was then a supervisory lawyer.
Anne Milgram: She was the head of the trial division.
Preet Bharara: Head of the trial division, so high ranking person at the Manhattan DA’s office. So whatever people like Linda Fairstein continue to say, who was the former head of the Sex Crimes Unit or the trial folks, there was a high ranking person in the Manhattan DA’s office that put together a very lengthy memorandum in support of the vacation of the judgment. When you read it, it’s pretty compelling.
Anne Milgram: I agree.
Preet Bharara: I know there’s differences of opinion and Linda Fairstein, who’s been much in the news, who continues to insist that the Central Park Five had something to do with the crime. This Nancy Ryan memorandum, I think it’s very compelling. Now the one I think about it is, I’ve seen reports that the trial ADAs, the assistant district attorneys were not consulted when Nancy Ryan was preparing this memorandum, and they may have a different view of the evidence. But if you read the prior memorandum, and it’s an official document, on behalf of the Manhattan DA’s office, convincing to me.
Anne Milgram: Yes, I also agree. You would have expected that as part of a real investigation into a case you would interview the original prosecutor. So I would expect that in the normal course. But it does strike me that when you look through Nancy Ryan’s memo, she focuses on a number of things. First of all, that the DNA absolutely points to Matias Reyes, number one. And that’s, as you said, the critical thing that the DNA connected to the rape itself, it’s him.
Preet Bharara: But that alone does not exonerate the rest because it could have been multiple.
Anne Milgram: Yes. But that’s a critical fact. It’s also and she talks about it being consistent with other rapes that he had committed in Central Park, consistent with the way he’d acted. All the rapes were committed in this sort of area, Central Park, or this Upper East Side area, they were all done alone by Reyes. The T-shirt, the victims T-shirt was tied in a certain way. Again, all things consistent with his sort of modus operandi, the way he committed these crimes. In addition, he provided a lot of information about those crimes, as well as this crime. The DA’s office was able to essentially corroborate that through the other offenses.
Anne Milgram: What Nancy Ryan goes on to do is to look at the inconsistencies in the statements of the five children, young men convicted in the Central Park case, in Central Park Five. There are without question, huge inconsistency is within the statements. One thing just to sort of step back on is that a number of states, including New York now, requires that interrogations be recorded from start to finish. The New Jersey does, New York does. Back then, there was not that requirement, was not legally there. What the DA’s office and many places did was that the police officers would spend a lot of time with a suspect in a case, they would get a statement, they would do traditional Miranda warnings, but then nothing else is recorded.
Anne Milgram: Then they would get to the point where they had what they thought was a statement that they would want to use, then they turned on the video camera. So what you see or what you do at the end is really sort of the final version of that statement. As you and I both know, there’s often a non-false confession, statements as well. There’s oftentimes where people initially do not provide all the facts, there’s a conversation that goes back and forth. It’s really important. All of that was not preserved here.
Anne Milgram: So what becomes clear is that there are ways in which ultimately, all five of them, put themselves at the scene in some way with some involvement. None of them say that they engage in a rape or any sexual assault, but they all sort of put themselves at the scene. From Nancy Ryan’s memo, what she believes coming sort of through this at the end is that there was information, potentially, that the detectives were offering some information or that there was an effort to sort of say, look, just tell us you were there, and then we’ll let you go home or something to that effect.
Anne Milgram: So there’s a lot that is really, when it comes to the statements and the interrogations, I think … Again, I don’t know enough about it and I think both you and I want to learn more, but there’s really something to be said here. That was the key piece of evidence at trial were their statements that were putting them at the scene at the time, or near the time that the rape was committed.
Preet Bharara: Right. And several of the five made statements that were inconsistent with what actually the evidence show, they got details wrong. The officers used standard garden variety deception. Basically saying, in one case, your fingerprints were found on the clothing of the victim, and making them think you’re in trouble. Arguably induce them, they’re young people to say things that were mildly incriminating of themselves, but not ultimately incriminating of themselves.
Preet Bharara: But then Nancy Ryan does not … I don’t think make a determination about whether or not in the initial instance, given that information, they shouldn’t have proceeded. But in light of the later information, from 12 years later in 2002, when you have somebody who’s definitively associated with the rape, and who had not been mentioned by any of the five boys-
Anne Milgram: And who says, I did it alone. And I didn’t see or know any of those five boys.
Preet Bharara: In other occasions, we know that he did commit rapes alone, that together is very compelling. So whatever you might say about what happened 1989 and 1990, given what I’ve seen, I don’t know all of it. But reading the memorandum and seeing other reports, it is a little odd to me that there are still people associated with the case, who seemed so adamantly devoted to the idea that these five boys committed that rape. Now, there’s a question about what other things they were doing in the park. There were lots of other crimes that happened in the park that night. There were a number of assaults, there were a number of-
Anne Milgram: Attempted robberies.
Preet Bharara: All sorts of things were going on. I don’t know if there’s any evidence that these had boys anything to do with that. But with respect to the rape, I would think that at this point when you have the evidence that’s in the Nancy Ryan memorandum and the DNA evidence, that that at a minimum would call into question. And in the court proceeding, there’s been some criticism by Linda Fairstein and others that the exoneration basically happened without a hearing. It was done on the motion of the DA’s office, I guess. But the standard seems to have been clearly met.
Preet Bharara: If the new evidence presents the possibility that the first result of the case would have been different, then you vacate the conviction. The idea that hadn’t been known back then that DNA evidence had connected Reyes to the crime. And he was insisting that he’d done it alone. We knew that on other occasions, he committed rapes alone. There was no evidence still to this date, connecting those boys to this man or this man to those boys. The idea that six of them would have been convicted, the trial seems low to me.
Anne Milgram: The question whether or not to have had a hearing, I think, is really it’s not the right question. I think the right question is what you just asked, which the legal standard and wasn’t met. In my reading of that memorandum is that the legal standard to vacate the convictions for all five of them was clearly met. This is going back to 1989 and the evidence at trial in 1990. The evidence against the five was really their statements. They did not match the DNA and they didn’t match the hair fibers that were found. There were few hairs that were found at the scene.
Preet Bharara: With respect to the hairs, now that we look at it little bit more closely, I believe it’s the case that with respect to one boy, there were three hairs found that were deemed to be not inconsistent with or were consistent with the victim’s. But that doesn’t mean it’s a match.
Anne Milgram: Exactly, exactly. There’s some question as to whether the prosecutor went too far, the prosecutor who tried the case went too far in suggesting it was a match. This has been a huge issue with law enforcement overstating what you can actually say based on the science. Going back to 1989 and 1990, the case really focused on the statements of those five. What’s clear, though, is that the government tried the case, under a theory tried both cases. Under theory that the five of them were there, but they weren’t the rapist. So that all the six people were together, they were all involved in it.
Anne Milgram: But these guys … One of the young men had said in his statement, I hit her with a pipe or something. Another said, I was on top of her at some point. Again, there’s wild inconsistencies, the timeline is wrong. I mean, there’s a lot to make anyone say, how can you possibly think that this is a viable prosecution? But their theory was there was the sixth person here. And so what’s very interesting about it is that it’s to me that that’s the theory they created of their case. That’s the theory that they tried. And it seems to me like, that’s the theory they’re still wedded to, despite what looks to me to be an extraordinarily large amount of evidence showing that the rapist was someone completely different.
Anne Milgram: He acted alone. And when you look at that in the context of the inconsistency in the confessions, and this real fear that false confessions were obtained, it really does lead to the conclusion that the 2002 decision to exonerate all five of them is completely the right decision. The fact that people question that I think has made this into a bigger conversation nationally about wrongful convictions, exoneration’s, police tactics, prosecution tactics. I think that’s part of why this fictionalized version has just raised so many questions and issues for people.
Preet Bharara: The other thing I’ll say is, from the prosecution standpoint, the standard is proved beyond a reasonable doubt. You need to be absolutely certain, pretty much, that these people committed the crime. I understand that you can make some arguments, even in 2002, that they were involved also, ad the interrogations were not as bad as people are portraying them to be. I understand you can make those arguments, but seems like there’s a huge amount of reasonable doubt, at a minimum that’s introduced, if not in 1989, although there’s a bunch of there too, but certainly introduced in 2002. And to the extent people have been looking back and doing analysis of these. There were multiple reviews done by an outside group and also by the NYPD itself.
Preet Bharara: I was struck by something in an article from the New York Times describing the New York City Police Department’s report back in the day about whether or not there was misconduct in connection with the investigation. That review found, I think, “It was more likely than not the defendants participated in an attack upon the jogger.” Well, that’s all well and good to say it’s more likely than not-
Anne Milgram: That’s not the legal standard.
Preet Bharara: That’s not the legal standard. And obviously, they’re not reviewing it for that purpose. But, boy, if that’s the best you can say, after looking at everything, after 2002, that it’s more likely than not, then I think it’s incumbent upon you to agree with the decision that you let those people go.
Anne Milgram: It’s so clear to me that Mr. Morgenthau did because this would not have gone forward without his blessing. And the fact that they didn’t even ask for a hearing, none of that, in my view would have happened. It’s important, Mr. Morgenthau, he actually hired me into the DA’s office. He, I think just turned 200.
Preet Bharara: Yes.
Anne Milgram: He was the DA during the time of the trials, 1989 and 1990 and he was the DA during the exoneration. So it’s just important to note that … I know we’re talking about certain people in the office opposing the exoneration. But I just want to be clear that I believe having been in that office that at that level Mr. Morgenthau would have been deeply involved in deciding to move forward with the exoneration.
Preet Bharara: So here’s the other thing about all of this. On the one hand, when you’re thinking about any lesson in a case of whether or not there was sufficient evidence, in light of new evidence. On the one hand, you really, I think, do want to spend some time talking to the people who were on the ground. And the people investigated the case and tried the case because they’re closest to it. On the other hand, given what we know about confirmation bias, and I write about this in the book in connection with the exoneration that we accomplished, the people who are closest to the case, have the most invested in the case, and may have blinders on. They may be in good faith or they may be in bad faith.
Preet Bharara: But with respect to this case where we exonerated six people who were prosecuted wrongly by the Bronx DA’s office many years ago, there was a lot of resistance on the part of the office. And you see that a lot.People don’t like to reconsider. They formed a view back in time and they feel very passionately about it. And hopefully they did, because then the miscarriage is even worse if they did it and they had a lot of doubt. So in some ways, it’s maybe better that they felt confident about their view. But when you’re re examining it later, although I think you want to consult with the folks that were closest to it on the ground, you want to talk to other people, and you want to have fresh eyes on it, to evaluate the evidence. And I think that’s what happened here.
Anne Milgram: Yeah, I agree. I agree on both pieces. A couple of others points. One is that Nancy Ryan talks about the accounts given by the five defendants differed from one another on specific details of every major aspect of the crime. It’s just worth going through this for a minute. Who started it? Who knocked down the jogger? Who undressed the jogger? Who struck her? Who held her down? Who raped her? What weapons were used? The sequence of events. Four of the young men said that multiple men raped the jogger, which is not consistent with DNA. And so it’s really important to be able to also step back and look at that in light of the new evidence, particularly.
Anne Milgram: Also, I think it does raise questions about how this happened in the first place, and freely demand in my view, of a thorough look at the processes. Again, many of them have already changed the required taping of all interrogations. I think is critically important. There are limits on the amount of time that interrogations can can go for. There are a lot of things that have changed. But reading this, again, going back to where we started, which is that it’s a chance encounter in a prison that basically leads to this coming to light. It means that we have to do all we can to make sure it doesn’t happen.
Anne Milgram: I want to just raise one other thing, Preet, which is you and I are sitting here and looking at the full page ad that Donald Trump, now the United States President, then a New Yorker, a real estate developer had taken out at the time, which says, bring back the death penalty, bring back our police in reference to the Central Park Jogger rape. So I think it would be unfair of us not to spend a minute just talking about what influence did fear in the city and politics play in the rush to have people who would be charged with the crime.
Preet Bharara: And anger, fear and anger. In that letter, I believe that you’re holding, Donald Trump says, I want to be angry.
Donald Trump: Let’s all hate these people. Because maybe hate is what we need if we’re going to get something done.
Preet Bharara: He does foment fear. It’s not that from the Donald Trump we see now. I think more tellingly, even though he oversees, among other things, the nuclear codes and the Department of Justice, in light of all this evidence has come to light later, that he has never said anything that suggests he’s changed his mind. Even after the city paid I think 40 or $41 million in compensation to the five boys and their families.
Anne Milgram: I think he objected. What he said is he objected to the payment in 2014 of the $41 million to the young men and their families. He is very much not convinced. You just had a conversation with Rachel Barkow pried about her book, Prisoners of Politics, talking about what an outsize role politics plays in criminal justice. Reading this and reading the ad, it did make me think about how important it is for prosecutors to be outside of politics and how difficult it can be. It’s no justification here, but just understanding that the pressure that existed at the time. So how do you think about … I mean, both you and I have been through, I think, difficult situations where you have to decide whether charge or whether or not to charge in high profile situations.
Preet Bharara: Look, I give a couple of examples of these in the book. When a bad thing happens, and it’s undeniable that a bad thing has happened, a bomb goes off. Has happened in Time Square, has happened in Madrid in 2004, 191 people died. Or here where you have a woman who’s clearly raped and battered and is unconscious on a pathway in the Central Park. People want to find out who did it. And they were afraid that maybe the person is still on the loose. Faisal Shahzad was on the loose for 53 hours. The people who committed the bombing in Madrid were on the loose for a period of time. They were not suicide bombers. And the same with a rapist here.
Preet Bharara: As I say, it’s a very difficult balance. So you want to proceed very, very quickly because it’s your duty to do so. In the same way that you’re outside and your the school resource officer. You hear shots fired, you’re supposed to run towards it, you supposed to do it very, very fast. But you have to balance that against making sure you get it right. This is not the first case and won’t be the last case where people got it wrong. You just have to make sure. I’m not saying that this was the cause of the miscarriage here. But you want to make sure when you’re hiring folks, you want to make sure that when you’re trying to figure out what the culture and establish the culture in your office is, that it is aggressive and speedy, but within reason to make sure you don’t get it wrong.
Preet Bharara: On the way to finding Faisal Shahzad, during that 53 hour period, I remember, there were a bunch of false starts. At one point during that period of time while Shahzad was on the loose after he set this bomb in Time Square, that thankfully didn’t go off in May of 2010. Then on a couple of different occasions, people came to me, so we think this is the person who did it based on various DMV records and connecting the vehicle that they believed it to be to a particular person. But we’re not sure yet. But I remember going to bed on … This happened on Saturday evening, and on Sunday night, someone came in my office, and we had a pretty decent belief that we had found the guy. I went to bed thinking we had found the guy.
Preet Bharara: I woke up and the JTTF, the Joint Terrorism Task Force and prosecutors from my office, had continued to investigate and realized, no, that was not the person because they had finally determined it was Faisal Shahzad. Look, and you can always jump the gun. In the case of Brandon Mayfield and the bombing in Madrid, there was a little bit of pressure that I think cause people to act a little bit more quickly than they might have otherwise. Sometimes it’s not just the speed that people are working at.
Anne Milgram: It’s quality of the evidence.
Preet Bharara: People get it wrong.
Anne Milgram: Yes. I was thinking also about the fact that a number of DA’s offices, including I think Manhattan, have now started a process where on the most serious cases and the most sort of high profile cases, there’s a separate group of prosecutors and investigators who aren’t involved in the investigation who vet the evidence. Almost the equivalent of sort of a murder board where you’re required to sort of present your case and push forward. And really the idea is to figure out, is there sufficient evidence there as opposed to being a rush to judgment and confirmation bias?
Preet Bharara: All right, so that’s-
Anne Milgram: A lot of weighty topics today.
Preet Bharara: It’s a lot of weighty topics. Can I say once more than it was a really tremendous delight and treat to have Judge Thompson with us.
Anne Milgram: Yes. She’s the best.
Preet Bharara: Maybe she can come every week.
Anne Milgram: Yeah.
Preet Bharara: The funniest thing that I saw from-
Anne Milgram: The Twitter?
Preet Bharara: Not the mouth of the present, but I guess the Twitter feed of the President of the United States, when he talked about NASA. This got a lot of play. But immediately when I saw the tweets, I was like, I wonder if in Anne Milgram can make her way through this tweet.
Anne Milgram: I had not read it until you sent it to me. And then I did a dramatic reading, which I will do now. I did a dramatic reading for my husband and son and I’ll tell you what they said. I @realDonaldTrump on Friday, June 7th, wrote, “For all of the money we are spending, NASA should not be talking about going to the moon. We did that 50 years ago.” I’m getting to the good part. “They should be focused on the much bigger things we are doing, including Mars, of which the moon is a part. Defense in science”
Preet Bharara: Including Mars of which the moon is a part.
Anne Milgram: Is it, though, Donald. So my son said, who’s almost five said, “Mama, no. Mars has two other moons. They’re not our moon.”
Preet Bharara: That’s a smart kid.
Anne Milgram: And that’s true. He could only name one of them. But I was like, it’s too bad you’re not 35, you could be the president of the United States. Yeah.
Preet Bharara: But you know the thing I laughed at?
Anne Milgram: Tell me.
Preet Bharara: Even more than the Donald Trump tweet and it still makes me laugh, is the best response from somebody who apparently is a humor writer. So that’s good. He’s in the right line of work. Jason Gilbert wrote, “As JFK famously said, ‘We choose to go to the moon, not because it is easy, but because it is Mars.'” Oh, my goodness.
Anne Milgram: Maybe we can write Jason Gilbert and ask him to write tweets for us every week.
Preet Bharara: Yes, we need some of that. All right. I think I’ve had enough.
Anne Milgram: Thanks, Preet.
Preet Bharara: Thanks, Anne.
Anne Milgram: See you soon.
Preet Bharara: Send your questions and we’ll try to answer them with a straight face.
Anne Milgram: Absolutely. Bye.
Outro: This is the CAFE Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, and Vinay Basti and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the cafe insider community.