The below excerpt is from Alix Lambert's book, Courtroom - a portrait of the American criminal justice system - available through Perceval Press.
https://percevalpress.com/catalogue/courtroom/
Interview and drawings by Alix Lambert
TOM FIRESTONE
Tom Firestone is a partner in a Washington, D.C., law firm where he specializes in anti-corruption and white-collar criminal defense. Previously, he worked as a federal prosecutor with the U.S. Department of Justice where he specialized in the investigation and prosecution of organized crime.
TF: I went to law school because I didn’t know what else to do. I was sort of the classic liberal arts person, so I went to law school basically by default, but I knew that if I was going to do it, I had to do criminal law. It was just something that seemed appealing and interesting to me. Ever since I was a kid, I loved to watch gangster movies. I remember reading a book about how prosecutors worked on a big mob case in Boston, how they listened to wiretaps from inside a mob meeting place, interviewed the witnesses and prepared the case, and I thought, “This is really cool. I could see myself doing something like this.”
AL: Last time we talked, you talked about how the American criminal justice system is based on people flipping—
TF: Yes. When I was a prosecutor at the federal level—and even in my current job—to uncover crime, prosecutors obviously have to understand how the scheme took place. There’s rarely going to be direct evidence of what happened, who did what, or what was in their minds. Often in criminal cases, intent is one of the key issues, and in order to get at that, you usually need somebody who was a participant in the scheme. That kind of evidence is usually obtained by somebody cooperating against their co-conspirators. So, almost all sophisticated criminal prosecutions are based on obtaining the testimony of a co-conspirator.
AL: Could you talk about some cases that are interesting to you?
TF: I mean, every case is interesting because every one of them is a human drama. I had one case where there were two mobsters in New York who commissioned a double homicide in Ukraine of two brothers who they had been in business with, both of whom had subsequently become prominent business people in Ukraine. They hired hit men in Ukraine to do the job and the hit men basically took some money for the job, didn’t do it, spent it on God knows what, probably gambled it away, or drugs, prostitutes—whatever hit men spend their money on—and then became worried that they were going to get in trouble with the guys who hired them to do this job. They went to the Ukrainian law enforcement with evidence of the whole thing, and they had actually made recordings of their meetings with the guys who commissioned the job. The Ukrainians brought that to us and we were able to arrest the two guys in New York. It involved the Ukrainian law enforcement staging a murder. They put out the word to the criminal community that a man had been killed, and then one of the hit men who was working for both Ukrainian and U.S. law enforcement said that the job had been done. Then law enforcement in New York sent somebody in to get the money for the job having been completed, and when the subject paid the money, he was arrested. It shows a sophisticated way of preventing a murder, a double murder, and bringing the guys to justice. That was an interesting case. I had a lot of cases involving criminal gangs in Brooklyn, both mafia cases and so called Russian organized crime, but it wasn’t really Russian—it was émigrés from the former Soviet Union [engaged in] various forms of criminal activity.
AL: You are separating that from Russian organized crime? TF: In my experience, Russian organized crime, at least in the United States, is vastly overrated. First of all, it wasn’t really Russian ethnically—it was mostly other ethnic groups that had emigrated from the former Soviet Union, and it wasn’t particularly organized. It was certainly crime, but it wasn’t really “Russian” or “organized”. I think that in the U.S., people always look at things through the prism of the Italian mafia and they try to put everyone into hierarchical criminal family organizations, which may apply for the Italian mafia—it doesn’t apply for a lot of other kinds of criminal organizations. These guys were just sort of a disorganized rabble, I mean, they did a lot of damage but they were not hierarchical and organized and sophisticated the way the mafia families were. Those families are really well organized, and I think it has to do with the social structure they came out of. They came out of the social structure in Sicily, where the mafia played the role of a government in a lot of ways, and so it had authority within the community, and I think that makes it much easier to get people to abide by these rules and respect the decisions of the bosses. It makes it much less likely for the people to cooperate. In the Italian mob, if somebody cooperated, they and everyone in the family would be ostracized from the community. In the Russian-speaking world, you didn’t see that at all. I think it’s because they come from a different society in which there was a real government and the criminal underworld didn’t play that role of unofficial government with social support. In Russia, in contrast to Sicily, the government was constantly pitting people against each other. There was a huge percentage of the population who were informants and so I think that the notion of cooperating with the government and informing on others was much less condemned in that world than in the Italian world. AL: When you see those things manifest in the states, they maintain their adherence to their origin countries?
TF: They reflect it. I think every organized crime is always a reflection of the legitimate society that it comes out of. It’s like any other social disease—it reflects the society that produces it. On just the most basic level of what society decides to criminalize, criminalizing certain vices, that automatically creates a black market, and that is where the criminal organizations wind up. Then, in terms of ethnicity and social structure, it’s often a question of which groups have been denied access to opportunities in legitimate society. They tend to gravitate towards that, and thankfully most of them over time, at least in the United States, move into legitimate forms of activity, but there’s always a small percent- age of every group that is going to be criminal. Look at organized crime in the United States—it is very much an equal opportunity employer. There is organized crime in the United States of every ethnicity.
AL: When you talk about the human drama at the center of the cases—that is also what I am interested in. I’m curious if you remember the first time you had to be in a courtroom?
TF: I guess one of the first times that made an impression on me was when I was a summer intern in the U.S. Attorney’s Office in the Eastern District of New York. It was the sum- mer of 1992, and I remember the first day. We were interns. They didn’t know what to do with us, so they sent us to the courtroom and there was a big mob trial going on that I watched, and it was just riveting, and I knew from then that I wanted to be doing this kind of stuff. I knew I was fascinated by that whole world, but I had never seen it in court before. That was the summer that the John Gotti case was in pre-trial hearings, and so I went to watch a lot of it, and there were numerous mob trials, and a lot of Asian gang trials as well, so I remember going to those, and I found them fascinating.
AL: What were you watching that especially fascinated you?
TF: It’s so interesting, because it’s where these different worlds in society interact. At the Gotti trial, I remember one time when [he] and his co-defendant were brought out of the holding pen. In the courtroom, everybody stands up when the judge comes in, which everyone did, but before the judge comes in, the defendants come in, and when they brought Gotti in, everyone on his side of the courtroom stood up, just like they were bringing the judge in. This was before Sammy Gravano had flipped, obviously, and he was one of the co-defendants, and I just remember looking at him and Gotti and Frank Locascio and looking at Gravano’s face and he was looking around the courtroom, and the look in his eyes—I remember thinking, “Now I know why they call them wise guys.” He had this look on his face that [said], “This is all bullshit. They’re dragging me through this and I’m better than this. I’m a tough guy.” It just conveyed disdain for the whole proceedings and it was clear that this was a part of his life that he had no respect for, because he came from a completely different world.
One day, I went in there, and by accident, I wound up sitting on their side of the courtroom with all the Gotti people. I was like, “Oh, sorry,” and one guy—he was a boss in the family—was like, “No, no—it looks good for us to be sitting next to a nice, good looking young man like you.” I also remember hearing some of the others talking—a young guy who had taken off from work to come to court, saying, “I really want these people to see me, that I’m here.” It just said a lot about their world and the world that they come from. I think the courtroom is interesting in those cases, where so many different parts of society that would ordinarily never come together, come together. It really makes our country what it is—when you walk in a courtroom and there is a seal at the top: United States District Court. People from different walks of life obey what that is, respect what that is. That’s what makes a rule of law society a rule of law society.
AL: Courtrooms are open to the public and people rarely take advantage of that. But I think it is interesting that you can go in and see your entire community pass through. I am always interested in watching jury selection. I’m curious to hear what your thoughts are on that specific part of the process.
TF: I think jury service is extremely important. I think that’s part of what it means to be a citizen. It makes people a part of the process; it makes people view the world from the perspective of the victim, or the defendant. It forces them to use their judgment on a very real-world, tangible situation, on a day-to-day basis, that I think is for the public good, which is extremely important to citizenship. It’s an important institution. I think that people should not try to get off of jury service.
AL: Did you see that a lot?
TF: Often people don’t want to take time away from their lives because it can be a huge burden, but I think that they should do it. That and voting, to me, are the key ways in which citizens play their role in their own government. There’s a lot of science, art, pseudo-science, that goes into jury selection—the idea that ethnicity, gender, social status, background are going to make a potential juror more likely to vote one way or another, and I don’t know that that’s true. I think I’m in the minority here, but I think you can only tell so much about somebody from those external characteristics. Also, the facts of every case are specific and I think that when people get into the jury room, they take the judge’s instructions seriously. That whole process of deliberation with 11 other strangers really forces everyone to think through the evidence in a case and to rise above that. I remember once when I was clerking, Justice Sotomayor said, “You should always want intelligent jurors. That’s who you should want. Don’t think about all these other things— intelligent, ethical jurors are the best jurors,” and I think that’s exactly right, and I think it’s good for both sides.
AL: Also when you watch the lawyers, I’m interested in the element of their performance that sways the jury—that doesn’t have to do with the strength of the case. You can see the jury respond basically to who is telling the best story.
TF: I think that’s true, and that’s obviously the criticism of trial by jury, but what’s the alternative? That’s a big element of any democratic system and it’s certainly a big element of our electoral system.
AL: Do you take into consideration the opposing lawyer?
TF: Absolutely. There are lawyers who are very persuasive and lawyers who are not very persuasive. You want to hope that in the process of the deliberation, that there are enough voices, enough people thinking critically about the evidence, that they focus on what is really important in the evidence rather than whether or not they like the lawyer. There are a million different things going on in the lawyer’s mind in the courtroom—you’re playing to the judge, you’re playing to the jury, you’re playing to opposing counsel, you’re playing to your client, you’re just trying to manage. There are a lot of moving parts there that all have to be managed at once. Being a good trial lawyer is an incredible skill. It’s one of the most intellectually challenging things there is.
AL: What did you think of the judges that you worked with?
TF: I practiced on the federal level. I felt like at the federal level, the judges were extremely good. The judges that I worked with, both when I clerked and as a prosecutor, really wanted to get to the right result. The law builds into it sufficient flexibility and dis- cretion for the judge to do the right thing. Most of the judges that I worked with I found wanted to do the right thing. They were more concerned with getting to the right result than they were with just protecting themselves from being overturned on appeals. Some of them are concerned about that maybe too much, but for the most part, the judges I worked with wanted to do the right thing. The question was, what in the law allows me to get to the right result? But I was lucky because I clerked in the Southern District of New York, where they have the best judges. My judge—the judge I was working for—got sick, so I wound up sort of floating and rotating around a number of different judges, including Sotomayor—and probably have a very skewed view of this because I worked with literally the best of the best of the best, so I’m spoiled in that sense.
AL: Do you have an opinion about the current state of the Supreme Court?
TF: I think there are very good justices there, and again, I think the process of deliberation gets to the right result and I think that judges, a lot of times, they surprise once they get on the bench. The expectations that they are going to be one way—once they are freed from having to run for election, being reviewed, not being subject to recall, it allows them to use their minds and really engage in debates with the other justices, and you know, I don’t agree with every Supreme Court decision, but I think they do a really good job. When you read Supreme Court decisions, they are an extremely thoughtful analysis of the law. Obviously the Kavanaugh hearings were not our finest moment, but after he got confirmed, I saw Sotomayor made this comment, “He’s confirmed. He’s now one of us. We welcome him.” It was just such and incredibly decent thing for her to say, and it was so consistent with the way I knew her 20 years ago. That’s exactly the kind of person she would be. I saw that and I was so moved, because it’s just so who she is, and what makes her such a great person, and a great justice.
AL: Will you talk me through the sentencing guidelines?
TF: The sentencing guidelines came in the late ’80s. They are designed to make sentencing more precise. The problem is when you don’t have any sort of specific guidelines— zero to 10 and the judge has unlimited discretion—there’s a perception and a reality that people can commit the same crimes and get completely different sentences just by virtue of who the judge is. So, there was this effort to make it much more systematic and fair, and so the system that was set up essentially assigns a point system to every crime, base offense level, and then points are added or taken away based on the aggravating and mitigating factors, and that leads to a final number which translates into a very limited range in which the judge has to sentence. That is the idea behind the sentencing guidelines, to make it much more objective.
Of course human nature being what it is, and justice being what it is, it didn’t really work out that way because there is tremendous discretion that goes into the calculation of these numbers and whether something should apply or not apply—and it should be that way because there is a subjective element to this and there’s always going to be a bargain- ing element to it. So, I think it turned out to be much less objective than it was designed to be, but more objective than a system of unlimited discretion. It does strike me as odd that we try to reduce moral culpability to a mathematical formula—that seems to me like a very American thing to do.
Eventually what happened is the Supreme Court found that the guidelines, if they were applied rigidly, would be a violation of the separation of powers because it would essentially be Congress sentencing, and so they left the guidelines in place, but strictly as guidelines rather than as something mandatory. I think right now we have found a good middle ground. It went from a system of unlimited discretion to a system where it was sort of micromanaged by this Congressional scheme that had been set up, to a system now where that kind of analysis informs the sentencing, but it doesn’t tie the judge’s hands.
AL: Are there aspects of the law that are regularly misunderstood by the public?
TF: I think there is sometimes a perception of injustice in certain cases, which is not justified. When one looks at the evidence, you see why the prosecutors and the jury and the judge did what they did. But I don’t know if there is one persistent misperception. It’s no less sophisticated than medicine to understand why a doctor recommends a course of treatment. You’ve got to understand the science and the competing choices. I think that’s the same here and I think the legal system’s rules have evolved over a long period of time for very good reason, and so I think sometimes from the outside, people might not understand why certain evidence is admitted or excluded. I mean, the one that often gets people worked up is the exclusionary rule, that something was found in violation—say somebody admits to a murder and they weren’t mirandized and their confession has to be excluded, or they find a body and they didn’t have a warrant. That evidence is excluded.
There are a lot of things in the system that may not seem fair in a particular case but they are designed to promote justice in the broad sense across a number of cases. They are designed to strengthen the system. I think that’s the thing that maybe people misunderstand. “How can you defend a murderer? How can a lawyer defend someone they know is guilty of a horrible crime?” The answer is, first of all, they don’t necessarily know they are guilty. Secondly, the point is not just to convict guilty people, it’s to convict guilty people on the basis of evidence, which is legally obtained in compliance, while protecting their rights. There could be all sorts of violations in a case of a guilty person. If you tolerate those violations in a case where you have a heinous criminal, then that violation can become precedent and can be applied to person two, three, and four. Then you are on the road to arbitrary enforcement of the law, which is not something any of us want. So, I think that that’s the most important thing—to separate one’s personal opinion about one particular case from an understanding of what is in our collective interest. I think that everybody deserves an ethical defense, that’s extremely important. The system is best served and we are all best served when there are good, aggressive, ethical defense lawyers and good, aggressive, ethical prosecutors. [The] combat between two sides forces each to be better and forces the judge and the jury to be better as well.
AL: Did you ever want to be a judge?
TF: No. When I clerked, I loved it. It was great job, but I always thought it was a little bit too restrictive, because you are focused just on cases in one particular district and that’s all you do, and I knew I wanted a more varied career.
AL: Is there anything else you think about when you think about the process?
TF: To me, this is one of the most ancient challenges there is. Society has to find a way to resolve disputes and it has to find a way to punish those who violate its rules without letting the enforcers turn into oppressors. It is literally the oldest question in political philosophy going back to Plato—who guards the guards? That’s really what we are dealing with when we deal with the judicial system. That’s what separates civilized society from barbarism. So, to me, this is at the essence of a free democratic society. It’s got to be constantly evolving but I think on the whole—there are obviously some failings, but when you look at the range of criminal justice systems that exist in the world today, and that have existed historically, ours is pretty good, far from perfect—lots of room for improvement—but on the whole pretty good.
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ALIX LAMBERT has directed and produced three feature length documentaries: THE MARK OF CAIN, BAYOU BLUE, and MENTOR. She is currently in production on GOODBYE, FAT LARRY. She was a writer on the HBO show DEADWOOD and a writer / producer on JOHN FROM CINCINNATI. She is the author of CRIME, THE SILENCING, and COURTROOM. Patreon/Lixilamb