By Sara Kropf
I recently listened to Preet Bharara’s podcast on a long car ride. He’s the former United States Attorney for the Southern District of New York. After months of conducting interviews of government-side subjects—prosecutors, FBI agents and the like—he interviewed a person who had pleaded guilty to a crime.
What struck me was that although the interview seemed like a prime opportunity for Bharara to hear from someone on the other side of the table, Bharara clearly had no interest in really hearing what Jason Goldfarb said, at least when it came to criticizing Bharara’s practices.
In particular, Bharara declined this opportunity re-evaluate the fairness one of his former office’s pointless and cruel practices: the media-leaked perp walk.
Bharara interviewed Jason Goldfarb, an attorney who pleaded guilty to his role in an insider trading scheme. It’s fascinating to hear someone describe what it is like to be arrested, plead guilty, be sentenced and serve time. He’s a brave guy for speaking publicly about his experience, and I plan to recommend to my clients that they listen to the podcast to get an idea of what they will face.
Goldfarb was truly remorseful, based largely on his concern about disappointing his parents. After hearing his story, you can’t help but conclude that he’s a decent guy who did a very dumb thing. At no point does he deflect blame or minimize his role. He sounds a lot like some of my clients.
Listen to how he described his surprise early-morning arrest.
There’s this banging downstairs and me, being the person who never gets in trouble or anything like that, you know what I did? I called the police. I’m not kidding, I literally called 9-1-1 and they said “alright we’ll send someone there.” And finally, like five minutes later, someone shows up from NYPD. I open the door and there’s like 15 agents with their guns drawn. For me!
But then Goldfarb points out the unnecessary cruelty of the arrest process in his case:
GOLDFARB: We were in a car on FDR Drive and then the press was already there. Which…you know, that’s an issue that I take a little umbrage with.
BHARARA: They shouldn’t have been [there]?
GOLDFARB: Yeah, it’s a problem. I don’t think that’s fair. . . . It didn’t need to be like that. I would have happily turned myself in and came down there. I understand there’s a job to be done. It’s just to me it’s unnecessary.
BHARARA: In your view, it’s excessive?
GOLDFARB: It’s excessive.
What happened to Goldfarb is regrettably common in the SDNY. Among U.S. Attorney’s Offices, it’s the one most likely to force a white-collar defendant through a perp walk.
What’s a perp walk?
A perp walk is when law enforcement arrests someone and walks them in handcuffs into the police station (or courthouse) in full view of the media. The common assumption is that law enforcement tipped off the media about the arrest.
A few years ago, NPR interviewed a reporter for the New York Daily News about perp walks in New York, and he offered a helpful description of what happens:
DAVID KRAJICEK (Special Correspondent, New York Daily News): Thank you so much, Michele.
MICHELE NORRIS: Walk us through the standard perp walk.
Mr. KRAJICEK: The press office at police headquarters will notify reporters the time and place that the perp walk is going to occur. And usually they give us a heads up of an hour or so, so we can get there with our microphones and our cameras and our video recorders.
NORRIS: So the goal is to make sure that there is an audience?
Mr. KRAJICEK: Yeah. You know, the NYPD rules say that they will neither impede nor promote photos. You should also know that the police department, as well as federal law enforcement agencies, use this as kind of an atta-boy for cops, you know. It’s considered to be a mark of prestige if they are perp walking John Gotti, let’s say.
It’s clear from Goldfarb’s retelling that the media had been tipped off about his arrest that morning, because they were already waiting when he arrived for booking.
What struck me about this moment in the interview is that Bharara doesn’t even pause. He doesn’t respond to Goldfarb’s legitimate criticism of his arrest process as “excessive.”
That’s pretty telling.
Goldfarb was a lawyer and a member of the New York bar in good standing, not a mobster. He was accused of insider trading, not a violent crime. There’s no suggestion in the podcast that he was a flight risk or a danger to anyone.
It would have been fascinating to hear Bharara try to justify why this guy had to be arrested by 15 federal agents at 6 a.m. rather than invited to turn himself in. But Bharara’s podcast regrettably doesn’t trade in self-reflection about how he did his job as U.S. Attorney. Instead, he spends an awful lot of time talking about how it felt to be fired by Donald Trump and about the glory days as a prosecutor putting people in jail.
Goldfarb’s perp walk was completely unnecessary. Deterrence may be a goal of the criminal justice system but publicly shaming people who have not been found guilty is completely unnecessary.
It’s also a waste of resources, too. Consider what those 15 agents could have been doing with their day, rather than arresting a lawyer at dawn in his boxer shorts.
Bharara’s podcast is often entertaining and informative, I’ll give him that. But it would be even more interesting if he’d take a moment to reflect on some of his former practices and consider whether they are, in retrospect, wise ones.