Stay Tuned Transcript: The Prosecution (with Pat Fitzgerald)

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Preet Bharara’s podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts. 

STAY TUNED: The Prosecution (with Pat Fitzgerald)

Preet Bharara: Patrick Fitzgerald, thanks for being on the show.

Patrick Fitzgerald: Thank you.

Preet Bharara: So, you know, we used to work together once when I was a young prosecutor and you were still in the United States Attorney’s Office for the Southern District of New York. You were the Chief of the Organized Crime Unit. And then later, we were both U.S. attorneys in separate districts, you in the Northern District of Illinois, which contains Chicago; and of course, I was at the U.S. Attorney’s Office in the Southern District. So, it’s great to sort of work with you again, although through a podcast. So, thanks again.

Patrick Fitzgerald: Not at all. Happy to do it.

Preet Bharara: So why don’t we start at the beginning of, you know, the illustrious career that you have had? You became a prosecutor. How come?

Patrick Fitzgerald: I don’t think I set out to be a prosecutor. And I—I went to law school, and I frankly had some questions toward the end of law school about whether I wanted to be a lawyer. And I interned in my third year of law school at the U.S. Attorney’s Office in Boston and had a wonderful time. I literally bumped into a 65-year-old mobster coming out of the courtroom when I ran in with some legal research and nearly knocked him over, and the Assistant U.S. Attorney said, “Do you realize who you just ran into?” And I said, “No.” And I watched some IRA gun running trials, and some drug trials, and some motorcycle gang trials, and thought, what a great job. And then it sort of dawned on me eventually that it was not just a great job to think about, but maybe I could do it myself. And I worked in the private sector for two years and then applied to the office, and to my surprise, they hired me.

Preet Bharara: I’m pretty sure the guy you ran into at the U.S. Attorney’s Office in Boston was not Whitey Bulger.

Patrick Fitzgerald: It was not. I think he was elsewhere for a while.

Preet Bharara: But I like the fact that you almost knocked him over instead of vice versa. What do you think makes a good prosecutor?

Patrick Fitzgerald: That’s a great question. I remember when I was interviewing people, and when you’re U.S. Attorney, I think I hired about 150 prosecutors. And people tell you when you become U.S. Attorney that you’ll always remember who you hired more than any case. And that turns out to be true. And you think about the pride people have, like oh, yes, I hired him. I hired her. It really does make you proud. What I really wanted to see was someone I thought who could do the job. But by the time they came to me for an interview, all the academics and writing ability had been scrubbed. And you really wanted to have someone that you thought—you feel comfortable basically making serious judgments about people’s lives. And that’s a hard test. But I remember one prosecutor, Z. Scott, came to me and sort of said, “You know, that person was terrific, but I didn’t sense any soul.” And that always stuck with me. And it’s sort of like, okay. You can be off the charts smart. You can be articulate. But at the end of the day, people who make lots of decisions, you want to feel comfortable that they’ll be aggressive enough fighting crime, but fair and have judgment, and have the judgment to raise their hand when they think they’re facing a difficult issue to seek advice. So, judgment and a sense of proportionality.

Preet Bharara: Let’s talk about criminal prosecution. This is sort of one episode in a four-part series that looks at criminal justice and the federal system from different angles—from the defense angle, from the defendant’s perspective, and from the prosecutor’s perspective. And obviously, you’ve been in private practice for some time, but you spent most of your career as an Assistant U.S. Attorney and as a United States Attorney, so you’ve seen it all. And so, you know, a case begins with an investigation. You don’t have a case unless you figure out what the facts are. And I think a lot of people presume that it’s the law enforcement agent, the FBI agent, or the Secret Service agent, or the police officer who does the investigating, and then the prosecutor just sort of takes it over like they show on Law and Order, and takes it to court after the investigation’s wrapped up and tied in a bow. You and I know that that’s not true in the offices where we work. Explain what the role of the prosecutor is in an investigation.

Patrick Fitzgerald: Sure. There are a bunch of cases where appropriately, the agents will develop it on their own. You know, a bank robbery is underway, and a SWAT team comes in and arrests the bank robbers, and catches them in the act. You know, a lot of your investigating is done, and the case is sort of handed over to work with the agents going forward. But the cases and the most significant cases are ones that are a partnership between the agents and the prosecutors. And I always worried if an agent thought we investigate and you prosecute, that’s not gonna be a good case. And if a prosecutor thought that the agents worked for them, that’s not gonna be a good case. And the best cases were where you teamed up with the agents, who told you what was going on, and the prosecutor’s weighing in on investigative techniques and steps. And sometimes, that was surprising even to agents. An example that sticks in my mind, we were going after some bad guys back in the early ‘90s. And they were up to bad stuff, and one of them offered to sell an undercover bazooka and a bunch of hand grenades.

Preet Bharara: Uh-huh.

Patrick Fitzgerald: And so, they were quite excited that they had a bad guy, and wanted to get the bazooka and the hand grenades off the street as soon as possible. And then I happened to look up what the penalties were for possessing a bazooka and hand grenades, and realized that they had also offered to sell drugs. And I told the agents, to their surprise, “Make sure you buy the dope. The penalties for drugs are a lot more, remarkably, than for possessing a bazooka and hand grenades. So, get both.” It’s counterintuitive. An agent would say, let’s get the bazooka and hand grenades, and that’s a serious charge. Instead, you wanted to get the kilos of heroin they’re selling and the bazooka and hand grenades, and take them off the street. But the penalties were a lot harder. So, there were those odd things that come up where the agents, I think, would not be expected to anticipate that. And then once you shift into more of the prosecution mode, any good team is gonna have the agents involved through the very end, dealing with witnesses and offering insights. So, I think the cases where the agents and prosecutors were almost bleeding over into each other’s roles are the ones that achieve success.

Preet Bharara: Right. And at trial, for the people who go to trial, the prosecutors sit at the table as the assistant U.S. attorneys, along with the case agent, whether from the FBI, or the Secret Service, or the IRS, or the DEA, or anyone else. And it’s part of, you know, a tightknit team at the table.

Patrick Fitzgerald: Yeah. And they’re a tremendous resource. They’re often key relationships with witnesses, and many of them have facts just stuffed inside their head. You’re sitting there at trial and saying, “That surprised me.” And you turn to the agent, and they’ve got it all squared away and can deal with it. So, they’re not furniture.

Preet Bharara: Right. And also, along the way, before there might be an arrest in a case, obviously there are some things that agents do not have the authority to do. They can go out and they can do surveillance. They can knock on doors. They can go through trash. They can do all sorts of things, but they can’t, for example, engage in a search without a warrant, and for a warrant, you need a lawyer. You can’t tap a phone without a court order, and for that, you need the lawyer. So there’s also lots of legal reasons why the prosecutors have to be bound up with the agents, even before the charge is brought.

Patrick Fitzgerald: Agreed. And the resources that—if it was a wiretap, the amount of resources spent by agents to man that wiretap are massive. And so, having buy-in where the agents know that the prosecutors will go get them the legal process they need, and the prosecutors know they’ll put in the hard work in return, that partnership is really something that was key to the bigger cases.

Preet Bharara: Are wiretaps your favorite kind of evidence?

Patrick Fitzgerald: Hard to beat wiretap evidence or undercover recordings, because it then becomes whether they meant what they said. But you know what they say, and there’s not a witness standing there saying one thing and somebody else saying another, and the jury’s trying to find out what was said. You have a wiretap, and particularly if you can corroborate what it all means, that’s great. And often, people say stupid—very stupid things in wiretaps, from—I had a drug case where they talked in pig Latin, which wasn’t too hard to break apart after the fact.

Preet Bharara: Who were those—was that in New York or in Chicago?

Patrick Fitzgerald: That was in New York. It was the Boy George drug ring. Heroin was food, so there was a lot of description of oodiefey.

Preet Bharara: Oodiefey.

Patrick Fitzgerald: All over the wire. And Trooper [?Claremo Kayhey] took the stand as a pig Latin expert and decoded the wire for the jury, and was cross-examined, and answered in pig Latin at times.

Preet Bharara: It’s the famous case of—you know, when I was growing up doing narcotics cases in New York, and some of the Colombian drug dealers would—instead of using kilo to refer to a kilo of cocaine, would use dresses. And they would order, you know, 25-and-a-half dresses.

Patrick Fitzgerald: Yeah. Which shirt, the white one or the brown one?

Preet Bharara: Right, right, right.

Patrick Fitzgerald: I’ll take one-and-a-half.

Preet Bharara: Were there cases that you thought would not have been possible to make without the wiretap?

Patrick Fitzgerald: Oh, definitely. I mean, there are certain cases where sometimes your informant may have all sorts of issues. And even though you may trust the informant, you couldn’t make the case. And one of those cases probably was the Blind Sheikh case, where there was an intelligence wiretap that was later used as criminal evidence, and there were court body recordings made by an informant. And you know, to have him come in to a room with a blind sheikh and have him come out and say, “He asked me to attack the American military,” that’s asking an awful lot for a jury to believe an uncorroborated account. Having it on tape is a world different.

Preet Bharara: Were the most fun wiretaps those between mobsters?

Patrick Fitzgerald: Yes. They were very hard to figure out, because it would always be, “You know that guy about the thing? And then I took the thing and I told him, and then the other guy, oh yeah.” And you would go ‘round and ‘round and ‘round and try to figure out what it meant.

Preet Bharara: And those guys never use pig Latin.

Patrick Fitzgerald: Never use pig Latin.

Preet Bharara: Yeah.

Patrick Fitzgerald: They didn’t use English either. They spoke their own language. But oftentimes, when you finally got decoded what they were saying and you could figure it out, it was pretty damning.

Preet Bharara: Right. Well, the smartest mobsters were very careful on the phone. And then famously, there were those in your time and also still mine, who would, if they wanted to conduct business that would implicate themselves, they walked around the block.

Patrick Fitzgerald: And did a walk talk.

Preet Bharara: They did a walk and talk, right? Or, also famously, to make sure that people weren’t wearing body wires, you’d get in the tub, no clothes.

Patrick Fitzgerald: Yes. There was a number of those. People also talked before they hung up the phone and didn’t realize it was live. So, we had a couple of those, where people broke code and said, “I just did X.” And then they hung up the phone. So, that wasn’t too bright.

Preet Bharara: Yes. Because they presumed that the wiretap begins once the call is connected.

Patrick Fitzgerald: Right. They finish the call, and then they just say, “I just ordered drugs.” And it’s like, okay, well, that was helpful.

Preet Bharara: Now you just gave a practice tip to criminals who are listening to this show.

Patrick Fitzgerald: I think the number of narcotics traffickers on the Preet Bharara podcast may increase.

Preet Bharara: They might learn some things. So, the other way you get evidence in a case is by making a deal with somebody who is part of the criminal conspiracy, you know, one of the partners in crime, and you flip them. And flipping is something that people have been talking about a lot because of more famous investigations that are going on that we don’t have to talk about. But describe this process of flipping and how prosecutors think about it. How badly do you want someone to flip in a particular case, and how do you go about getting that done? Like, what are the incentives?

Patrick Fitzgerald: Sure. Look, some cases, you have a rock solid case based upon wiretaps or other concrete evidence, and you don’t really need a flipper. Those are rare. And I always thought that having an inside view telling you what happened and painting the complete picture, than having it corroborated by saying, “Okay, now you told us that you and the defendant did X on this date. Now let me play a tape for you, and walk us through the tape,” that makes jurors feel a lot more comfortable that what they’re getting is the truth.

Preet Bharara: How much do you worry about jurors also recoiling from this idea that the government has gotten in bed with this criminal? And depending on the nature of the crime, you know, somebody who many have dealt drugs or may have beaten people, or may have lied before, you know, did you think about that at the time?

Patrick Fitzgerald: Oh, you do. And I think the jurors often are offended by it. I think the logical process is they hear the account and they look for the corroboration. And if what they’re saying on the stand lines up with the other evidence, they’ll be convinced. Logically, they will say, well, I was convinced by the evidence. I was offended by that witness.  But at the end of the day, you thought if you didn’t have the witness lay it out in sort of detail, they may not have believed it. You know, the few times you talk to jurors afterward, they may make comments like they really didn’t trust that witness, but boy do they believe the tapes. And yet, I think it was the witness and the tapes.

Preet Bharara: So, when you’re deciding who to sign up as a cooperating witness, you know, who to flip, is it always the case that you want to flip upward in the food chain?

Patrick Fitzgerald: You want to flip upward in the flood chain ‘cause you’d rather give a break to the person lower down, less culpable, and hold the more culpable person accountable. Unfortunately, you may get stuck at times, either because the people lower down the food chain won’t flip, or because the person higher up the food chain may have a much broader span of knowledge that you end up having a higher ranking person. And so, they may give you people above them. But you may be stuck at a trial where they’re testifying down, which is much more uncomfortable.

Preet Bharara: Yeah. Did you ever have that, and was it a problem?

Patrick Fitzgerald: Yes. And it’s something you are very conscious of. And you try to make sure the jury understands all the reasons why you signed that person up, and make it clear to them that they were being signed up not just to testify down, but to testify across and up. And to your earlier question about flipping people, I think a huge part of that depends on personality, both the agent and the prosecutor. Many of the agents may be the ones to flip someone, and often just by being decent human beings. There was a great agent I worked with, Jack [?Campanella].

Preet Bharara: Oh yeah.

Patrick Fitzgerald: He was a smart, hardworking, and really good guy. And he didn’t demean people he arrest and, you know, act like Kojak. And he didn’t suck up to them and make them feel like they were special because they were so good at crime. He just dealt with them as a one-to-one basis. And part of what happens when people become government witnesses, they have to reconcile to themselves, are they betraying friends, are they betraying some other loyalty? And it’s hard enough for people like that to think about it. And if they think, well, that person treats me with decency and respect. I can talk to them. So, I think a big part of the [?federal] process is just coming at it where people are respectful.

Preet Bharara: So, take us through it. So, sometimes it’s the agent, sometimes it’s the prosecutor, sometimes it’s both of you together. And guy’s been arrested, and you bring him in, and you’re trying to make the pitch, hopefully before he’s presented in court so he can do some proactive cooperation, maybe wear a wire or something else. And you go in the room. Did you have, you know, a particular technique or a speech that you gave?

Patrick Fitzgerald: It was very fact-specific. It would depend on what rapport there already was with the witness, either from an agent, who was then gonna build you up and sort of say, “Look, we’ve been talking, and we think we might be able to work together.” And they may have a lawyer with them or not. And here’s the guy that’s gonna be responsible, or here’s the guy that that U.S. Attorney’s gonna turn to, and you know, I vouch for him that I trust him, and let’s work together. Then you have to sort of grab that baton a bit and try to build a rapport with the witness.

Preet Bharara: Why don’t you yell at them, and scare the bejesus out of them, and say, “Listen,” because that’s what you see in the movies, right?

Patrick Fitzgerald: Right.

Preet Bharara: You know, this is your last chance. You’re gonna go to jail forever. You’re never gonna see your kids. F you, etc. And you scare them into turning into a witness for the government.

Patrick Fitzgerald: I would be uncomfortable with that, and I think it’s entirely counterproductive. I think the best pitches to them are in a matter-of-fact tone. And depending on what the case is, there are times when people would come in and you’d tell them, “The first time you didn’t want to talk, so I just asked you to come here to listen. And let me tell you how it is that we’re gonna [?prove up] that, you know, you’re part of this drug conspiracy. And why don’t I pick one tape here? And I just want to set the scene. And a jury’s gonna hear this one day. And what we’re gonna say is that this is you ordering two-and-a-half kilos when you asked for two-and-a-half shirts for, you know, $45,000.

Preet Bharara: Or in pig Latin.

Patrick Fitzgerald: And—yeah, or pig Latin. And let me just play the tape, and let’s talk about it. And then you talk to them about their circumstances, and they’re facing serious charges, and what the penalties are. And then I would basically tell them, “I’m not here to judge whether you want to be a witness or not. There’s lots of reasons why you might not want to be, and that’s fine. And no one’s gonna force you to be a witness. But here are the upsides. And maybe we can reduce your prison time if you’re truthful and cooperative.” Let’s address safety concerns. Let’s talk about this. And this is your choice going forward. And think about all the things that are on your mind. And if you have a family, think about what it means in terms of your getting out sooner rather than later, and spending your time with them.” I never, never thought of this as any sort of conversion, like they have to see the light and profess to suddenly have a religious conversion and see the error of their ways. It’s basically straightforward. Like, you know, if you’re willing to talk and be truthful, we’ll go to bat for you. And matter of fact, never scream.

Preet Bharara: But once of the first things you have to show them is the likelihood that they’ll be convicted. So you play the tape, you tell them the evidence, and then you’re hoping that they’re doing this sort of cost-benefit analysis, and they realize, okay, well, I’m done. My goose is cooked, so I’d better flip. What do you do with the people who are really intractable? You just give up and you walk away from them, and just cross your fingers, or are there further plays?

Patrick Fitzgerald: I think the ones who are intractable, if they’re so intractable, if you think they’re important, you sometimes bring their lawyers in and you pitch their lawyers and sort of say, “Hey, I recognize you may be new to your client, and the client may be uncomfortable. You’re pushing him to cooperate, and you don’t want to push him or her. But let’s just talk straight-out, and here’s how we see our case. And we think, you know, your client could be very useful, and there’d be value in that. Why don’t you go talk to them, and if it’s worth pursuing, come back to us.” Sometimes the lawyers will say, “Yeah, I hear what you’re saying. It’s just never gonna happen.” And then you give up, or at least give up for now. And sometimes they say, “Look, I wanna test this. I want to bring some motions,” or, “I want to look through the evidence I have, and if I satisfy myself that my client’s in a pickle, I’ll go work with him.”

Preet Bharara: You sometimes use the benefit of the clock against them, right? So, ten people get arrested in a gang, and you don’t need multiple people to cooperate and flip.

Patrick Fitzgerald: Yeah.

Preet Bharara: And presumably, everyone has similar information about the others, because they’re all in the same gang together. There’s a little bit of pressure, right, to come in quick.

Patrick Fitzgerald: Yeah. First one on the bus gets the best deal. And that’s something you can make clear to them or their counsel, and tell them, I’d rather—you know, if they’re the low person on the totem pole, I’d much rather work with you and give you a break than necessarily someone else. But, you know, the train leaves the station at a certain point, and we’ve got to move on. And so, you lay that in front of him for sure.

Preet Bharara: Is that fair, do you think, overall, that by accident of who has a lawyer who decides to bring his client in more quickly, they’re more likely to get lenience because they get signed up first?

Patrick Fitzgerald: Is it fair in the outcome? Probably not. But it’s—you know, a prosecutor can’t tell a defense attorney what to do. And everyone knows, if you’re a prosecutor, there are people who come in who have a high proclivity to say, “Yup, you got my guy. Let’s cut a deal.” And then there are some people who would proclaim, “I’ll never cut a deal,” which always made me feel uncomfortable. Like, you know, that’s an option for the client to decide.

Preet Bharara: Does that seem wrong to you?

Patrick Fitzgerald: It seems very questionable to me, because, you know, you shouldn’t be pushing your client to cooperate or not cooperate. You should put the facts in front of him and the incentives and the risks, and have them decide. And so, yeah, people do benefit according to the decisions that are collectively made, that may vary with who represents them.

Preet Bharara: Let’s talk about the one case that everyone knows in America. That’s Miranda. So, everyone knows that when you get arrested, you’re supposed to be read your rights. Is that always true? Do people get read their rights right away, and does that shut people up in, for example, terrorism cases, which is what the politicians always say? What’s been your experience with Miranda?

Patrick Fitzgerald: Sure. If you asked me when I first started, I would say Miranda is always a scary moment when you’re in an interview. You read the person their rights, and you might look at it and say, well, there are only two outcomes. If they were gonna talk anyway, maybe they don’t now. And so, from a prosecutor’s perspective, you see the loss of information because of Miranda. However, having seen it play out in practice, I have come to a very different view. And I think Miranda’s misunderstood. And given that there are some exceptions that are not clearly defined, when you can have questioning without Miranda, I think there’s a great, great risk in not reading Miranda, not just the civil liberties, but the safety. And the example I’ll give involved a guy named David [?Headley]. And Headley was arrested in October of 2009, and we arrested him in Chicago on suspicion that he was planning to carry out an attack, a terrorist attack on a Danish newspaper. And after being Mirandized, and I think within about 20 minutes of being interviewed, he confessed to playing a significant role in the terrorist attacks in 2008 in Mumbai and India, where more than 160 people were killed, and then proceeded to give information for days and days afterward. And when he got a lawyer and went to court, he was facing a potential death penalty. And any lawyer worth his or her salt would say to themselves, he just confessed to something they weren’t investigating him for, and this is serious business. And so, let’s shut down the cooperation, and let’s see if we can suppress the statement. And if he hadn’t been Mirandized, that might have happened, and he might have walked free. And he certainly wouldn’t have cooperated. But instead, he was Mirandized, and importantly, it was also videotaped, so the jurors could see not just that he was Mirandized, but he clearly understood what his rights were, almost to a comical point of arguing every time his rights came up. You know, “Stop telling me my rights. I fully understand it. I know this is being videotaped,” in a way that his lawyer could look at it and say, “I’m not gonna get away with a motion that’s gonna succeed, so I’m gonna cooperate. And so, what I always took away from that lesson was—that happened in October 2009, and the Underwear bomber came in two-and-a-half months later. And there was a great public debate about people saying, “See, if they didn’t read Miranda.” And I thought to myself, if he had come and been arrested two months later and we hadn’t read Miranda, we could have had a huge disaster on our hands, where we would let someone walk free of a crime they committed, and we would have lost the benefit of the intelligence of the information he was providing. So, I think that Miranda presents risks on both sides. What I think is not fully appreciated, how complicated it is.

Preet Bharara: Yeah. And then five months or four months after the Underwear bomber was Faisal Shahzad, the Times Square bomber in my own district. He was also Mirandized and talked for days about his training and about the people who he knew, and all sorts of things that not only incriminated himself but also led to a great amount of intelligence gathering as well. Do you think the politicians are full of it when they say Miranda-izing suspected terrorists is stupid?

Patrick Fitzgerald: I think, look. It comes from a place where from common sense, it makes it sound like Miranda poses these great risks. And that’s a place I came from before I lived through it. And I dealt with a lot of terrorists, and a lot of them were Mirandized. And a remarkable number of them waived Miranda rights and talked.

Preet Bharara: Right. Why is that? Why do you think that is?

Patrick Fitzgerald: This’ll sound bizarre.

Preet Bharara: Yeah.

Patrick Fitzgerald: I almost think that when you talk to an Al-Qaeda terrorist and read them their rights, they realize they’re in a system where they’re not gonna be tortured or beaten, and whatever they think about other foreign countries when they’re being arrested, or what they think the U.S. would do. And so, there’s almost a calming effect, like hey, we’re in a system where we’re gonna read you your rights. You don’t have to tell us anything. You don’t have to admit anything. You can get a lawyer. And so, that’s part of it. Part of it is, I think a lot of the Al-Qaeda folks think they can talk their way around things. They almost practice like a military drill of, you know, I’ll give them a little bit here and a little bit there, and withhold it over time. And they can think they can be very convincing. So they’ll engage in a dialogue and a debate with you, fully aware of their rights, and having waived. And it’s sometimes trying to convert you to their way of thinking.

Preet Bharara: But it’s interesting, because in part, you would think, knowing that they’re in a system, at least a civilian system where they won’t be tortured or subject to abuse, that they could get away with keeping their mouths shut, and they don’t need to talk to avoid being abused. Some people have told me that, you know their view is, if you’re somebody who’s committing a crime for ideological reasons, and you’re committed to jihad against America, that you kind of want your story to be known, that you’re not doing it for anonymity. And once the jig is up and you’ve been arrested, and you’ve been asked about things, you go a little bit into bragging mode. Does that sound right to you?

Patrick Fitzgerald: I’ve seen that. There was a fellow we interviewed in Nairobi, Kenya after the August 1998 embassy bombings. And he wanted, as a condition of talking to us, after we read him his Miranda rights, that we promised that he would be brought to America to stand trial so he could tell America why he did it. And we spent time negotiating about whether in fact I could promise him he would be tried in America. And I had to tell him I couldn’t guarantee it, but I really wanted to see that happen. And he took that representation and then began to talk, and wanted to tell the whole story, and wanted to tell us why he was fighting America, and wanted to sing a song to me at the end of his confession.

Preet Bharara: What song?

Patrick Fitzgerald: It was an ode to the suicide bomber who was next to him in the truck and got killed. And it was a song to this guy [?Azam], you know, something about living in paradise. It didn’t stick with me, but that’s what he wanted to do. I saw it elsewhere where there was lying going on, but I think a sincere belief that he could get away with doing it. And, you know, that included a fellow who went in the grand jury, Bin Laden’s personal secretary in 1997, and this is now public, so I can talk about it, and talked for a day, and lied like a rug. And then we went back in ’98 and told him we now found documents that show that we think you were lying last year, and gave him target warnings, and read him all his rights. And he insisted on going ahead and talking. So, part of it was a belief that they could blow past you, and part of it was bragging. But it’s completely the opposite of the Mob, you know? Stop a mobster in the street and say, “Do you have the time?” And they take the Fifth. They wouldn’t tell you how to find a bus. And so, culturally, the Al-Qaeda folks are talkers.

Preet Bharara: What did you mean by a target warning?

Patrick Fitzgerald: A target warning is when you tell someone there’s a serious chance you’ll be charged. So there’s a thing called a subject warning, which means you’re being investigated. But a target warning is a higher ratchet up, and it basically says in layman’s terms, you’re a serious suspect.

Preet Bharara: Let’s talk about what happens in connection with the decision to make a charge. So, the investigation is done. You have enough or you don’t have enough. You know, you served both as an Assistant U.S. Attorney, so on the line, and then also as the head of the office in Chicago, the United States Attorney. How did you think about how much evidence you needed generally to go forward on a case? How’d you think about that decision, to go ahead and take the very, very substantial step that even if you don’t succeed in proving guilt, you’ve really shattered someone’s life when you bring the accusation?

Patrick Fitzgerald: Sure. When I was an assistant U.S. Attorney in New York, and particularly in the younger days, when you were dealing with a lot of drug cases, first you always want to make sure you had it right. So, you believed that the person was guilty. In the drug cases, it was often easier because you might catch the guy with a kilo, and he’s got a lot of explaining to do. But you would want to look at the evidence. And if you had a couple of witnesses who independently testified that they had drug transactions with someone, you’d want to look for something substantial that would corroborate that. Back then, if you had a law enforcement officer who dealt with them in an undercover capacity, you felt very comfortable that a jury would take the word of a law enforcement officer and find that compelling. That has changed. Culturally, there’s much more exposure to skepticism about confessions and police conduct, and also the sort of CSI effect, where people expect more forensics. When I got to Chicago when I was U.S. attorney, and cases are—when they’re coming up for your review, sometimes it was sort of whether or not a legal theory worked. Like in the corruption cases, you know, what’s honest services? And having some really smart people scrub that and tell you, you know, this is black and white, and this is grey, but we think it’s correct, or not. And then factually, wanting to be convinced that the person is guilty before you get to, can we prove it? And then when it gets to the “can we prove it,” you want to sort of hash it around and frankly assess the personalities of the people in the room. Some people see failure everywhere. Some people see success everywhere. And if you had a group thinking about how’s a jury gonna look at it, I would weigh that. And then, to be candid, it was hard in a terrorism case if you thought the person was guilty of something very, very serious and killed people. Maybe you had a lot of intelligence information that was classified you couldn’t use that told you, that’s the guy that did it. When you’re comfortable that they’ve done it and they’ve taken lives, then you’re gonna be more aggressive, and say, as long as I in good faith think I can, you know, convict this person, then if this person’s dangerous, we have to be aggressive and go out and find enough evidence, because we just can’t let this person walk away.

Preet Bharara: Is that like going after Capone for tax fraud?

Patrick Fitzgerald: Well, no. It might be in the very trial itself. It might be a serious charge. But it might be that you’re thinking the chances are not 99 to one you’re gonna win. It’s might be different. But in those cases too, if you couldn’t bring the main charge, would you go after them for a lesser charge? Absolutely.

Preet Bharara: So, you’re prepared to take more risk if the crime is more serious.

Patrick Fitzgerald: I’d say so. If you were convinced—as a prosecutor, if you were convinced that they did it, that’s a very different question. Like, I’m not sure he did it. That’s a very scary conversation. You don’t get more aggressive when you’re not convinced. But if you’re convinced, you still have to feel like you can convict someone. But you have to be willing to sort of say, this might be tough, or maybe I have the witnesses, they’re coming from a foreign country, and the foreign country has promised to produce them, but you don’t have that feeling that they’re guaranteed to show up, you have to take that risk.

Preet Bharara: Right. I mean, what I think sometimes people don’t appreciate is how it can be that a prosecutor could be 100 percent certain that someone’s committed a crime, but there might not be enough evidence to prove it anywhere approaching 100 percent. And as you pointed out, it could be because there’s evidence that’s not allowed to be put in. It could be that a witness died. It could be that some information is classified. How important is it for the prosecutor to feel 100 percent certainty whether or not the likelihood of success approaches that?

Patrick Fitzgerald: That’s just at the core mission. You don’t want to be part of a case where you come to learn that, you know, you got the wrong person, and they’re innocent of a crime. That is just a horrible circumstance. So, that’s the first question.

Preet Bharara: Right. So you set the standard very high.

Patrick Fitzgerald: Yeah. The second question has to be, can you prove it, and what damage [?here is] done if it’s a legal theory that if you’re wrong, might mess up the law. But when it came to the terrorism cases, it was, are they guilty? And there were times when you saw classified intelligence that made it clear that they were guilty, and it was made clear to you, you can never use this. And so, now you’re saying, okay, well, what do I do now? And some of those cases, it turned out later, we were allowed to use that evidence, and it was very powerful. But you had to make decisions, because people are about to get on an airplane and leave the country, and you’ve got to say, do we have enough on what we have to bring this case?

Preet Bharara: When it came to a decision to charge criminally a powerful person, you know, a political figure, an elected official, was the calculus different? Is there a different standard for people like that, and should there be? Because you’ve charged a lot over your career, both in New York and in Chicago, a lot of significant people.

Patrick Fitzgerald: I don’t remember all those conversations beforehand. But my guess would be that we had that discussion about what the standard would be in every one of those conversations where people, you know—you could hear someone saying, “Wait a minute. If you’re gonna shoot for a king, you have to shoot to kill. We can’t charge an X and lose, because that would be really, really bad.”

Preet Bharara: But it would be bad why? Reputationally? It would be bad for people’s faith in the justice system? It would be bad for that person and the rest of their career, even though they didn’t get convicted?

Patrick Fitzgerald: I think all three. The latter part, I’m assuming for this conversation that we’ve already scrubbed it to sort of say we believe the person is guilty. IT might be different if we’re confident in the facts, but then the law is a bit fuzzy, and then you have to think about, you know, if you in good faith think you can convict someone, and you think they’ve committed a serious crime, then bringing a case to trial, I don’t think is unfair. It’s unfortunate if it’s a loss, but that’s the way the system works. It’s very, very different if—you shouldn’t be having this conversation if you aren’t confident the person is guilty.

Preet Bharara: But are there considerations what it’s gonna look like and feel like?

Patrick Fitzgerald: Oh yeah.

Preet Bharara: You know, and how much blowback you’re gonna get? How much of a bullhorn the person you accuse will have to attack you and attack the office? Does that come into play, and should it?

Patrick Fitzgerald: I think it’s gonna depend on the facts and the law implicated in a given case. Yes, if you’re thinking about bringing a case where you’re convinced the person is guilty, but the jury might acquit, you have to factor that analysis in, but you also have to factor in why they might have quit. Is it a dispute on the facts, or is it some sense that the jury doesn’t think that it may be a violation of the law, but it doesn’t amount of a hill of beans? You would talk through that. And there were times when people would say, “Look, we know the person’s guilty, and what they did was a serious offense.” And it goes to either the core of good government or the core of the justice system, depending what the offense is. And you end up coming to a conclusion that, you know, unless you live to fight a different war, different day, or no, this person should be prosecuted like everyone else, and we’ll work hard and try to fairly achieve a conviction. And we can’t shy away from that, and we can’t fear loss.

Preet Bharara: So, now you’ve charged someone. The next phase is proving their guilt. And you know, most people in the system, as folks know, end up pleading guilty. But you know, some people go to trial. And you’ve tried a lot of big cases, and you’ve overseen even more significant trials in your time. How do you think overall about the trial? Do you think trial is theater? Do you think trial is really a crucible for truth?

Patrick Fitzgerald: I think when you’re the prosecution, you think of it much more as a crucible for truth, but there’s a whole lot of theater to it on both sides. And there are facts that some people are just very talented at giving the facts life. And I think people, jurors, see narratives. And now that I’m representing folks on the private sector side, I’m always telling them that a counternarrative is also very powerful. So, a jury hears a story, and when I say story, I don’t mean a made-up story, but they hear a narrative. And that takes their mind, like, okay, this is what happened. And then the hard part for folks then responding to that is to either come back with a counternarrative or to sow doubt on that narrative. And so, a lot of it is theater.

Preet Bharara: Right. So, the prosecutors, when you’re training them and when you were thinking about it, they’re all about the facts, and the facts are important. And you say, you know, here’s a piece of evidence. Here’s a piece of evidence. Here’s a piece of evidence. And you put it all together, and you have guilt. That’s not an effective way to present because it’s not a story.

Patrick Fitzgerald: Right. The risk most prosecutors have is that they want to put on too many facts and get the facts sort of lost in a sea of facts, as opposed to the salient facts. And I thought most defense counsel that I saw in the courtrooms were much better at seizing on saying, okay, there’s a hundred facts. Here are the five that matter. And so, part of what you want to tell prosecutors is, you know, let the jurors know how you frame the narrative, put the key facts in front of them, and then brace yourself for the counterargument. Part of the other lesson I would tell people for trial is they had to find a personality in the courtroom that fit their personality. And there are some tremendous trial lawyers on both sides, but none of them are good if they’re not sort of a reflection of themselves. Because when they walk into a courtroom and they see a fantastic attorney, and then they try to mimic that person.

Preet Bharara: Right.

Patrick Fitzgerald: But it comes across as fake.

Preet Bharara: Right. Because the most important thing that, you know, I used to teach students and assistants in the office is you’ve got to be yourself, because jurors will spot that from a mile away.

Patrick Fitzgerald: Yeah.

Preet Bharara: And it’s not just what comes out of your mouth. It’s how you comport yourself. And if you start using your hands more than you normally do, people will realize that. Or if you walk more than you normally do, people will realize that, and they’ll think you’re a fake.

Patrick Fitzgerald: Yeah. I had a friend who was from the South, and he was a complete Southern gentleman. And the way he would walk a witness to the stand and escort them up, and hand them a Kleenex, and everything else, that was him. And it came across as very endearing in the courtroom. But when you’re from Brooklyn and you try to do that shtick, it don’t fly.

Preet Bharara: Right. Are you supposed to take up an attitude of any sort towards the defendant? I’ll give you the example of what I’m thinking about. So, I was taught, and it may have been by you, because you were still in the office at the time, and I think you gave a lecture to the General Crimes assistants, I think on opening statements, which I’m sure was perfect. And the question arises, you give the opening statement, you’re describing the crime. And then at some point, you have to introduce the fact of the defendant. And you say the defendant’s name. And I was taught for various reasons that you step away from the podium, and as you say the defendant’s name, you point at the defendant in front of the jury. And I think the first senior person who said this to me, as an article of faith, you do that to show, particularly in a violent case, that you’re not afraid of the defendant. The defendant’s just a person too. And you’re sort of showing a little bit of prosecutorial power. I don’t know why I still buy that after all this time. What do you make of this issue of how the prosecutor should treat the defendant in terms of attitude in the courtroom?

Patrick Fitzgerald: I think, like an interview, you don’t want to be disrespecting them. You don’t want to be chummy chummy with them. I do agree that I think most people would point, and because there’s a little bit of saying, look, I’m gonna ask you to vote that this person committed a crime. And people don’t want to do that if they think you’re sheepish about it yourself. And so, the people will point and sort of say, “This defendant drove a truck up to this building with a bomb in it, knowing full well what would happen.” There should be no mistake about what you’re accusing them of. And in multi-defendant cases, I think people often try to sort of ascribe a role to people, so people could find the narrative. You know, this is the gunman who went into the bank. This is the getaway driver who sat outside. This guy was nowhere near the bank. He’s the one who cased the job, because he used to work there as a security guard. But in a complicated case, they sort of want to know who was at the table, those five of them.

Preet Bharara: Is it appropriate for prosecutors to have emotion in court? I think a big criticism of government lawyers often is that they’re sort of robotic, and they’re a little bit staccato in their presentation, because they think they’re not supposed to be like—the defense lawyers are supposed to be, you know, all about the facts and the facts alone. But is there a role for emotion and indignation at trial? Is that unfair? Is that right?

Patrick Fitzgerald: I think there is, and I think it’s fair. And the name that comes to my mind was a trial attorney still in the Chicago office who’s phenomenal named Diane McArthur. And she is just a strong lawyer, a nice person. Quiet, soft-spoken, even-keeled. Maybe tending to be—sort of speak softer than average. And if you watch her in a trial, she has a complete command of the facts, a complete command of the courtroom, and speaks to be heard, but not to yell. And she’ll go through her opening, and she’ll go through her witnesses that way. And when it comes to a closing, I think she modulates appropriately. And if there’s something that’s being contended that’s outrageous, when she raises her voice, she doesn’t have to slam a two-by-four on the table to be heard. It’s like the—you know, the 90-pound weakling like in the old Bazooka Joe comic strip who gets up and stands up for himself. And it’s not loud. It’s not screaming. But boy, is it effective because of the contrast. And I think it depends on the case. You do need to bring emotion at the right time. And I don’t think there’s anything wrong with that.

Preet Bharara: So Pat, you tried the case against a number of individuals who were charged with blowing up the American embassies in Kenya and Tanzania in 1998, and the trial took place in, I think, 2001. Lots of people died. I went to the courtroom a couple of times as a junior prosecutor just to see how the adults did it. What was the role of emotion and tone in that trial for you?

Patrick Fitzgerald: The role of emotion and tone came to me in the death penalty part of that trial, and the jury deadlocked on the death penalty, which the average person may not appreciate. If the death penalty’s gonna be imposed, it has to be unanimous. If they don’t agree unanimously, then the death penalty is not imposed. You don’t retry the death penalty part of the trial. And in that trial, when you’re putting up more than 200 victims, I remember that we took a small number of victims and had people walk through what happened. And maybe it was the widow who had to describe how she said goodbye to her husband that morning, and then learned that there was a bombing, and then how she had to go to a morgue and walk around for days until finally she found the right place, and how she would identify the body, and it’s chilling. And then another person might come up, and you’d say, “Tell us about this person’s life.” And you know, they loved their grandchildren, and give them a snapshot. I remember there was a point in the courtroom where it looked like the whole courtroom was in tears, including, you know, the defense counsel, prosecutors, court security. And then at one point, we just sort of said, “Look, we’re not gonna go through every one of these victims, but all these people died. And you should at least take a few seconds to understand that each one was a human being.” And you put a picture, and said, “This was victim so-and-so,” and click through all the photos. I don’t know how many minutes it took. But it was about as flooring an experience as you could do. None of it was screaming. But it was just a sobering reflection on how many people were killed. I think other people might have done it differently. But there had to be that emotional element to put in front of the jury, and the jury then had to decide what they thought the appropriate punishment was. And I respected their outcome.

Preet Bharara: And in that case, the outcome was what?

Patrick Fitzgerald: A deadlock, so there was no death penalty imposed.

Preet Bharara: The other aspect of trial is getting your witnesses in shape. And so, on the one hand, every time a government witness testifies, the defense lawyer goes at the witness, saying, you know, you spent hours and hours with the prosecutor, and the prosecutor obviously has a right to prep the witness, but shouldn’t be coaching the witness or having the witness rehearse answers, or putting words in the mouth of the witness. How do you make sure that people don’t cross the line from prep into coaching?

Patrick Fitzgerald: That’s a great question. In your own cases, I think you know it when you see it. And so, if you were to take a witness in some white collar case, and they have a whole bunch of emails laying out a chain of communications, and it was four years ago, and you bring them into the courtroom and sort of say, “Hey, we haven’t met, but I didn’t want to coach you. So, why don’t you tell the jury what happened?” And they start looking through 500 emails. The judge would rightly take your head off. You want people to be prepared. That’s very different than coaching. And I would tell witnesses often, “Look, I don’t want the right answer. I want what you remember.” If you have a picture that makes it very clear that the guy who robbed the bank ran out of the bank wearing a bright green hat, and your witness is telling you that the guy who robbed the bank went out wearing a bright blue hat, you don’t change that. You don’t even think about changing that. Now, it may be that they’re gonna remember it’s a blue hat, but you start asking them five times, “Is it a green hat?” You’re starting to have these people, even if they’re honest, lying awake at night and saying, “Why do they keep asking me about a green hat?” They’ll start thinking, maybe it was a green and blue striped hat. No. They remember it as a blue hat. Deal with it. Now, there may be another witness who has it’s a green hat. You just have to deal with it and show the jury, okay, look. We caught the guy. Here’s the evidence against him. Memories fail, and this person had the wrong color, but we didn’t try and change that. It goes back to your—one of your first questions is, when you’re hiring people as prosecutors, you want to make sure that they get that, that they have to sort of take it as it is, play fair, and not think they should do more than that.

Preet Bharara: Right. Because people try to harmonize all the stories because they’re worried that the discrepancy is going to be fatal to their case. But the discrepancy is what it is, as you say.

Patrick Fitzgerald: Yeah. You take it as given, and as a boss, you’d be scared to death that people would do something otherwise. And when you’re in the outside of the justice system, you fully want to trust that whoever’s putting a case on is gonna play by those rules, because there’s no one in that room.

Preet Bharara: How did you deal with difficult judges? Or if a judge didn’t like your case, or—you know, I’ve seen this also. You know, judges are just people. And they get chummy with the defense lawyer, or it’s a famous defense lawyer who’s a big deal in the bar. But the prosecutor’s a young person just starting out. There are these moments in the courtroom where the judge seems to be bending over backwards for the defense lawyer, and maybe that was just my perspective at the time, and I took umbrage at it. How did you think about judges at trial?

Patrick Fitzgerald: Oh. Well, they were so different. By and large, I thought you got a fair shake from most judges, and I think most judges gave both sides a fair shake. But every once in a while, you’ll be on a case where the judge sees it differently and is skeptical. I tried to win the judge over if I could, and you tried your hardest to sort of say, you know, what’s bugging the judge at heart? Because what’s bugging the judge, if it’s a weakness in your case, maybe the jurors would see that anyway. So, what is it that we’re missing? You take it to heart. I mean, it’s a federal judge. You respect them. And so, it could put doubt in your mind.

Preet Bharara: So, the trial’s over, and the jury comes back with a verdict. Just describe for folks what the feeling is in the courtroom and in the mind of the prosecutor—not the defendant, not the defense lawyer—of the prosecutor when the verdict comes back guilty.

Patrick Fitzgerald: I remember my first verdict. February 14, 1988. I won’t say the person’s name. And she was convicted. And she was guilty. And so, you think, well, I’m a prosecutor. I’m supposed to convict, and I’m not looking to lose. And this person is guilty. And the verdict comes back. And sinking feeling in your stomach, recognizing this person, for a drug offense, is going to jail. I remember who the court reporter was. I remember her describing, because it was February 14th, what she was doing for Valentine’s Day. And I’m not looking, but I’m hearing handcuffs going on the defendant, who’s going to spend Valentine’s Day in federal lockup. And so, it’s a very bizarre feeling, because you’re supposed to try to win, and you are trying to win. And the fact is the person’s guilty, and now you win, and then you have that—just that uncomfortable feeling, the way you are at a sentencing. Now, I will tell you that when the Al-Qaeda guys were convicted, I didn’t have that uncomfortable feeling. The people who—well, hundreds of people—were gonna be off the streets.

Preet Bharara: There’s a heaviness. I remember hearing how people used to talk about it, and would say, you know, it’s not a moment even in success for the prosecution where you feel like high-fiving. You know, as I did the job for a period of time, you realize that anybody who feels in that moment celebratory or feels like high-fiving their trial partner probably shouldn’t be in the job. Because even though the result is right and just, it’s not a moment of celebration. It’s a moment of great sadness.

Patrick Fitzgerald: Yeah. No, I think that’s a fair description.

Preet Bharara: Final question. Do you miss being the United States Attorney?

Patrick Fitzgerald: I miss being the United States Attorney, for sure. I loved that job, and I loved working with people. But I did it for 11 years, and it’s a little bit like—well, a lot like you shouldn’t do it too long. You try to organize the office with a whole team of others to go at things a certain way, and it needs a breath of fresh air for someone else to come in and sort of say, you know what? That was good. This is better. And so, I’m very comfortable that when I left, and my successor, and his successor, and I guess we’re four successors out—

Preet Bharara: Right.

Patrick Fitzgerald: —have done a great job. And that’s healthier for the office. And I’ll also tell you, it was a very strange feeling to be the U.S. Attorney in the age of terror. It was fair more draining on me than I had thought. I enjoyed it. I thought I worked as hard as I could while I was doing it, and it was time to have someone else have the chance to do it. And I felt like a lot of stress came off not to have that weight hanging on me. But I chose when to leave, and I realize not everyone does.

Preet Bharara: Right. All good things must come to an end, and that includes this interview. Pat Fitzgerald, thank you so much.

Patrick Fitzgerald: Thanks, Preet. Great to talk to you.

 

[End of Audio]

 

Preet Bharara’s podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.