Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law

Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law

by Preet Bharara

Hardcover

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Product Details

ISBN-13: 9780525521129
Publisher: Knopf Doubleday Publishing Group
Publication date: 03/19/2019
Pages: 368
Sales rank: 538
Product dimensions: 5.90(w) x 9.30(h) x 1.40(d)

About the Author

PREET BHARARA served as U.S. Attorney for the Southern District of New York from 2009 to 2017. Bharara oversaw the investigation and litigation of all criminal and civil cases and supervised an office of more than two hundred Assistant U.S. Attorneys, who handled cases involving terrorism, narcotics and arms trafficking, financial and healthcare fraud, cybercrime, public corruption, gang violence, organized crime, and civil rights violations. In 2017, Bharara joined the NYU School of Law faculty as a Distinguished Scholar in Residence. He is the Executive Vice President of Some Spider Studios and the host of CAFE's Stay Tuned with Preet, a podcast focused on issues of justice and fairness. Bharara graduated magna cum laude from Harvard College and from Columbia Law School, where he was a member of the law review.

Read an Excerpt

Truth is Elusive: The Boys

During the summer of 1989, between my junior and my senior years of college, I worked for an hourly wage at my uncle’s small insurance business in Long Branch, New Jersey. It was tedious work that involved literally typing thousands of names, addresses, and phone num­bers into a desktop computer from the phone book to create a database for mailers advertising my uncle’s business. This was not the most auspicious precursor to a distinguished career in the law, so I welcomed any respite from encroaching carpal tun­nel syndrome that hot Jersey summer.

One afternoon in August, I got a call from my best friend from high school, Jessica Goldsmith Barzilay, who was also on summer break before her junior year at SUNY Binghamton. The office receptionist, who also happened to be my aunt, trans­ferred the call to the phone closest to my desk. The most pleas­ant and upbeat personality I know, Jessica has always been quick to laugh and even quicker to make other people laugh. Her face is forever crinkled in a smile.

There was no smile in Jessica’s voice on the afternoon of August 20, 1989. It was the first of several devastating phone calls I received from her in the span of a few months. In this first call, she was trying to tell me something, but I couldn’t make out what she was saying, because she was crying—not in the ordinary way people weep because something merely sad has happened, she was quaking the way people do when something tragic has come to pass. While she struggled to deliver her unspeakable news, my first thoughts went to her parents, at whose home my brother and I would have des­sert every Thanksgiving in a long-running tradition. Next I thought about her two sisters, who had also gone to high school with us.

After a minute or two, Jessica composed herself. The news was about her parents’ lifelong friends. “Jose and Kitty are dead,” she said. Not only were they dead, but they had been murdered—viciously murdered—their bodies literally blown apart by shotgun blasts, in their own living room and at close range. They had been eating strawberries and ice cream on the couch, watching The Spy Who Loved Me. We learned later that the blasts were so violent, Jose’s head was almost severed from his body.

I had long heard about Jose and Kitty from Jessica. Jessica’s parents had lived near them for a time when they were all young and poor and trying to make a go of it in Queens. They rented small apartments near each other and did what young, striv­ing couples do. They worked hard, tried to make ends meet, and dreamed big. An inseparable foursome, they spent holidays and weekends with each other, played tennis and Monopoly together. In the years since these humble beginnings, Jose, an immigrant from Cuba, had moved the family to Beverly Hills, grown very successful in Hollywood, and in every way had lived and achieved the American dream. Jose and Kitty had two sons. I’d heard about them too because, growing up, Jessica had a crush on the older one, who went on to Princeton. Both boys were handsome and athletic. Now they were orphans.

On the night of the murders, police received a hysterical call from one of the brothers, who said he had come upon his parents’ bodies. Cops sped to the family residence, a $5 mil­lion mansion that had once been Michael Jackson’s home and before that Elton John’s. There they found the younger son on the front lawn, curled up in the fetal position. Inside they found the bloodbath.

I had never met this family, but I felt I knew them well through Jessica’s stories over the years. Now I felt searing vicarious grief listening to my friend sob through the grisly details. When Jes­sica had calmed down enough, I thought it was okay to find out more. Were there suspects? No suspects yet, she said, but the police believed it might be a Mafia killing on account of the brutality. It could have been a vengeance hit, but she had no idea who would want to do such a thing. And for some time, the cops had no clue either.

Eventually, this murder-mystery would become the second most sensational criminal case of the 1990s, eclipsed only by the trial of O. J. Simpson. Kitty and Jose were the parents of Lyle and Erik Menendez, and they had been slaughtered by their own sons. It was a long while, however, before this awful truth became known. And longer still before Jessica and her family would believe it.

Jessica couldn’t attend the funeral in Princeton, because she needed to get back for the start of classes. Her parents attended the services—which had to be closed casket—and reported that Erik seemed especially heartbroken over his parents’ deaths. Both children, they said, spoke lovingly and eloquently about Jose and Kitty.

I remember the next time Jessica called me in tears. It was months later, in March 1990. I was sitting on the hard twin mat­tress in my tiny college dorm room with an architect’s lamp on, senior thesis coming due, and procrastinating as usual. Her voice was cracking but calmer than it had been in August. She said, “They mistakenly arrested the boys.” That’s always how she referred to Lyle and Erik. Even now, three decades later, these two men—now well into middle age and serving life sentences for parricide—are “the boys.” Frozen in time, pre-murder.

“How could the cops make such a terrible mistake?” she asked. It wasn’t a purely rhetorical question. I was heading to Columbia Law School in the fall, and I suppose she was plain­tively asking me to channel some future legal self, to explain how such a profound police error could occur (and how it could be fixed).

I flinched before asking the obvious question. “Jessica, could they have done it?”

Her reply was adamant: “No. One hundred percent no.”

I said, “Can you be sure?”

“I know they didn’t do it,” Jessica said. “I know it, I know it.” I was convinced.

Months after the arrest, Jessica called again. She had just spo­ken with one of the boys’ aunts. Lyle and Erik had confessed. The boys had killed their parents, they claimed, in self-defense, after what they said was years of mental, physical, and sexual abuse by Jose. And why Kitty? Lyle would later be heard in a taped session with his psychiatrist saying he killed their mother to put her “out of her misery.” The confession and change of plea was about to become public, and the Menendez aunt wanted Jessica’s family to hear it from her before it was on the news. I asked Jessica how her dad was taking it. “This is worse than losing Kitty and Jose,” he had told her.

What followed was a six-year odyssey involving an epic legal battle over the admissibility of the psychiatrist’s recordings, fights over the self-defense doctrine, appeals to the California Supreme Court, multiple mistrials, and finally murder convic­tions of both sons in 1996. All of this would play out in public and transfix the country. The drama spawned multiple books and a TV series. Jessica even testified at the first and third trials.

By the time of the confession, I was a law student. But on that evening when Jessica first learned the truth, we did not discuss the criminal law, didn’t speculate about the viability of legal defenses or the possible sentence Lyle and Erik might receive if convicted. What Jessica talked about was her own gullibility, what she had gotten wrong, what she had missed. All those years. What had she not seen or chosen not to see? What pain and suffering had she been blind to? The shooting was not an impulsive heat-of-the-moment act. The crime had been meticu­lously arranged and planned and then carefully covered up. Lyle went on a spending spree afterward with his inheritance. He bought a Porsche, a Rolex watch, and a restaurant in Princeton.

What signs of monstrosity had Jessica ignored? The deaths were heartbreaking and the boys’ role in them excruciating, but what was also painfully gnawing at Jessica was her own mis­placed trust, her blindness to even the possibility of what turned out to be the truth. We talked all night, until the sun came up. The boys had done it. Jessica knew they hadn’t. But they had. She tried to make sense of it. We tried to make sense of it.

Much later, Jessica and her family would recall things that seemed odd and even terrible that might have signaled some roiling family tension below the perfect American dream sur­face. Jose was a tough dad, uncompromising and harsh with the boys. One time, he drove twelve-year-old Erik to a cemetery at night and left him crying among the tombstones in an effort to toughen him up. There were other stories like that, which Jes­sica has shared over the decades since. But the boys had turned out so well, everyone believed, that such incidents were forgot­ten or dismissed—until the murders. Or more accurately, until the boys’ confession to the murders.

Our all-nighter on the phone produced no epiphanies, save one: you can’t know anything about anybody. You can’t ever really know someone else’s mind or someone else’s heart, what some­one else is capable of. I mean, really know. That seems an appar­ent if depressing fact of life, but it was far less obvious to a couple of twenty-two-year-olds who had yet to live and work in the world.

It was the first moment I realized that anyone could be guilty of anything. There was something shattering about that. Shat­tering, but also instructive. To this day, when people tell me they know someone didn’t do it, I think of Lyle and Erik Menendez. It’s a sad but necessary reflex in a certain line of work. Because sometimes, all belief and faith and instinct to the contrary, the privileged sons of millionaires massacre their own parents.

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