Eileen Minnefor was two years out of Harvard Law School when her application came to my attention. I was clearing out my Atlanta office, getting ready to drive everything back to New York by way of my in-laws’ home in Pittsburgh. Eileen was working for a Boston firm. Since time was short, we arranged to meet in the Pittsburgh FBI office. The special agent in charge there, Bob Reutter, had been my supervisor in the UNIRAC case and is a great guy in any event. He was glad to give us the space, and I was immediately wowed by Eileen.
My other clerk, Burke Doar, has the pedigree of a legal thoroughbred. Burke is the son of John Doar, the fabled Justice Department lawyer who had been instrumental in breaking down segregation barriers in Mississippi in the 1960s. (Doar was by James Meredith’s side when he became the first black student to register at the University of Mississippi, on October 1, 1962.) Just to make sure Burke’s bloodlines stayed strong, he’d been named for his father’s close friend and eminent colleague Burke Marshall, assistant attorney general for civil rights in the Kennedy administration. Both were also superb lawyers.
Early on in my judgeship, Eileen and Burke had their hands full keeping me from tripping over my own tongue. I can recall wading into the middle of a raging battle between three or four law firms during a morning conference in my chambers. At issue was some discovery dispute in a civil matter. The lawyers were at each other’s throats over getting access to a witness who lived halfway across the country. To me, the matter was simple. Under criminal procedure, which is what I knew, a grand jury can issue a subpoena nationwide. What I didn’t know is that under civil rules, subpoenas are good only within a hundred-mile radius.
“This is ridiculous,” I finally said after another round of shouting. “Get a subpoena!”
The silence that greeted my suggestion was absolute. Off to the side, Eileen was shaking her head, wondering if I was even trainable.
“I just said something really stupid, didn’t I?” I told the lawyers. At least I got that part right.
But I was trainable, as things turned out, and in Paul Blumberg I found the perfect court clerk. Paul was a born-and-bred New Yorker: he and his wife had grown up eight blocks from the courthouse. They still lived in the neighborhood, and indeed Paul had been a roving clerk in the federal courthouse for a number of years. When I offered him the chance to settle down with one judge for what I thought would be years upon years, Paul jumped at it, and I couldn’t have been happier. Short, heavy-set, with a moustache and big, thick glasses, Paul had a New Yorker’s natural instinct for cutting to the chase, and I had been handed a docket that needed plenty of cutting and chasing.
Rookie judges are like rookies in any other endeavor. They get dumped on by the old-timers. But the situation in my new court was extreme. One judge had fallen sick, and I got half of his docket. Ten vacancies on our bench had left the other judges with overwhelming caseloads. At the chief judge’s decree, all but one of them (Judge Pollack, true to his character, offered to take any case I didn’t want to keep.) handed me twenty cases, and almost without exception they were the twenty cases the judge most wanted to be rid of: one where a motion had been argued a year ago but no ruling made, or maybe a bench trial complete with transcript to which the judge had never had time to add his findings of fact so I would have to go back and read the entire thing from word one. Eileen, Burke, Paul, and I labeled the docket “the kennel,” and believe me, those dogs wouldn’t stop yapping.
Just to put a little extra pressure on, someone from the Justice Department’s administrative office called to urge me to attend a two-week training session for new judges.
“Where’s it being held?” I asked.
“Atlanta.”
“No,” I practically shouted. “I just spent a year living in a hotel in Atlanta. I’m not going back.”
I phoned Ed Devitt in a panic and asked what to do about my bulging docket. Get an extra courtroom, he advised, and try two cases at once! Then he gave me some more practical advice: put everybody down for a trial, call conferences, and bring the lawyers in. Most will settle. And keep a disciplined time frame, run a tight calendar. If you don’t, the cases will get away from you.
Paul Blumberg proved amazingly effective at getting cases settled. I later learned that as he was bringing an attorney in to conference, he would say, “Do you really want to go to trial with this?”
“What’s the matter?” the lawyer would say, newly nervous.
“It just doesn’t look like much of a case,” Paul would answer with a despairing shake of his head. Then he would bring the opposing lawyer in and say exactly the same thing. Suddenly, instead of motivated litigants, we had motivated negotiators—a big change.
To tighten the calendar, I scheduled all my conferences for eight in the morning and promised the lawyers they would be out by nine. And I kept my promise religiously. The hour was early—no other judge in the courthouse was holding conferences then—but at least the attorneys knew they wouldn’t be sitting around the courthouse all day while I dawdled my way through a chronically late schedule. Trials started as soon as the conferences ended: promptly at nine. I broke at noon for my jog along the East River, then resumed trials until five sharp. Thanks to Paul, Eileen, and Burke, the place ran with military precision, and the system worked. In two years, we went from having the largest number of active cases in the district to the lowest number.
All the while I was learning and, without realizing it, preparing myself for what waited ahead. Our docket was a mix of criminal and civil cases, and because the Southern District of New York is itself so incredibly diverse, our cases were diverse, too. One day we’d be handling a maritime case, some dispute about bills of lading. That would be followed by a patent or copyright infringement, an attempt to knock off someone’s toy or clothing design or to steal an idea for the Next Big Thing, whether it was a movie, a book, a theme restaurant, or some new piece of electronics.
As in most courts in America, our criminal-case docket was clogged with drug trials, but even though I’d spent a good deal of my professional life on such matters, I could still be surprised by some twist in a case, for good or for ill. And of course I was seeing the trials from a whole new perspective.
I remember particularly one case brought by the Department of Justice. The defendants had all been convicted several times before. If they pled guilty this time, they were facing stiff mandatory sentences, so they had nothing to lose by putting their fate in a jury’s hand. But in truth, they didn’t have a chance. An undercover agent had been dealing one-to-one with them. He’d caught them on tape, incriminating themselves all over the place. If that weren’t enough, a court-authorized phone wiretap had piled up more self-incrimination, and a search had turned up guns, financial records, and drugs—enough to convince a couple of the dealers to begin cooperating with the government. As a kind of audiovisual guide for the jury, the evidence being displayed on the prosecution table seemed to be growing by several inches an hour, an expanding blob that threatened to engulf the entire courtroom.
I knew several of the defense lawyers. They were very able people, but even they weren’t able to manufacture much conviction. The jury was clearly tired. The marshals had been ready for hours to march the defendants back to the Metropolitan Correction Center, where they were overnighting. More out of a sense of completeness than any real necessity to drive a stake further into the defendants’ collective heart, the government called an agent who had participated in some relatively minor act of surveillance, and he added his few cents to the pot. Then, on cross-examination, one of the defense lawyers asked the agent about an inconsistency in his testimony, and the agent lied about it. Not a subtle lie either—one of those lies that sounded like one the minute it left his mouth.
The defense lawyer asked the question again, almost as if he were giving the agent a chance to correct himself, and the agent lied again. And now my sleepy courtroom started perking up. From the bench I could see the demeanor of the jury change almost
instantaneously. Instead of concentrating on the witness, the jurors started to look away from him. They were shuffling their feet, twiddling their thumbs, looking both embarrassed and annoyed. The prosecutor got up on redirect exam and tried everything he could to fix the damage, but the agent was by now insistent in his lie, and he was still insistent as four or five of the defense attorneys took turns destroying his credibility even more.
At the end of the session, most of the jurors were looking right at me as they filed out. I could see them rolling their eyes, shaking their heads, and I knew right there and then that the government had lost the case. The trial went on for a few more days, but it was like watching a slow death, and everyone knew it. The evidence was overwhelming. Guilt screamed from the defendants’ table. But jurors had lost confidence not just in the case their government was presenting but in the government itself, and in the end they acquitted most of the defendants on the bulk of the charges leveled against them.
As a prosecutor, I had never been able to talk to a jury after a trial. Now I could, so I walked into the jury room to thank them and to take their temperature, and found a very emotional scene.
“Judge, those defendants were drug dealers, weren’t they?” one of the jurors asked me, obviously upset.
“That’s not for me to say,” I told him. “You made the decision.”
But he wasn’t letting me off the hook with the usual bromides.
“No, no,” he went on. “We knew they were, but we couldn’t convict them.”
I asked him why.
“When we came in here after your charge, I think all of us felt the government had overwhelming evidence,” he said. “We started to vote, and it seemed as if everyone was going to vote to convict. We’ll be out of here in no time, I thought. Then someone says, ‘But what about the agent who lied?’ And that turned everything around.”
“You could have concluded that the witness lied and still convicted everybody,” I told him, but by now the rest of the jurors had joined in.
“Judge,” one of them said, “we felt that if an agent would lie about something that unimportant, how could we trust the government on the big issues? We had a terrible time. We felt terrible about it. But we just couldn’t convict.”
I thought about that case often during my time as a U.S. district judge, and I was still thinking about it early in my tenure as director when I asked about what kind of ethics training we did with new agents at the academy. Oh, came the answer, we do a couple hours in the sixteenth week of the program. That’s not good enough, I said. We’ve got to change that. We revamped the program so that ethics training came in the first week, not the last. We made it two days, not two hours. We also created an Office of Law Enforcement at Quantico to oversee the training, and we started to take the program on the road to our field offices so everyone in the Bureau, not just the new guys, would get the message.
For years, the academy had handed out three awards at graduation: for academics, marksmanship, and physical fitness. I suggested that we add a fourth award to the package—an ethics award for that class member deemed the most reliable, trustworthy, and honest—and it’s still being given out. I started a program at Quantico where sitting federal judges came to teach new agents about ethics. Every chance I got, I also carried the message personally to new agents, to police officers, to supervisors, to nearly every crowd I had a chance to address: integrity is the most important asset we have as law enforcement officers—more important than our witnesses, than our evidence, than anything else. If the people we serve don’t trust us, if they don’t respect us, then we can have the most impressive evidence in the world and still not win a conviction. We’re seeking to deprive people of their most precious possession, their liberty. If the people in the jury box don’t have confidence in us, they won’t let us do that. I’d seen that firsthand from my seat on the bench, I would tell audiences, and it wasn’t pretty.
That trial was on my mind, too, when I was invited early in 1994 to give a talk at Jagiellonian University—Copernicus’s school—in Krakow, Poland. For all sorts of complicated reasons, our then-ambassador didn’t want me to go. But I had read so much about the concentration camps in Poland, and I had been so moved by photos I had seen at the United States Holocaust Memorial Museum in Washington of smiling German police beating Jewish shopkeepers during those horrible days in the spring of 1933. Auschwitz-Birkenau is the largest graveyard in human history: 1.3 million people had been murdered there. I wanted to visit it because Auschwitz was, in one respect, a colossal police failure, and I thought it was important to acknowledge that and learn from it.
I’d also gotten to be friends with Elie Wiesel. I’d read his books and talked with him, and I remembered well the story of the local Hungarian policeman who knocked on the Wiesels’ window one night and tried to warn them to flee town because something was about to happen. The family didn’t flee. Elie’s father couldn’t comprehend the evil that was already forming, and they were hauled away the next day to the transports and from the transports to the death camps. But the courage of that single policeman stuck with me, his apparent attempt to do good when so much malevolence was all around him.
To make sure that lesson got through to our new recruits at the FBI, I asked Michael Berenbaum, then the director of the Research Institute at the Holocaust Museum, to put together several hours of instruction on the role of the police in the early years of the Holocaust, and Michael and his staff came up with a powerful presentation: archive photos, first-person accounts of both good and bad police, scenes that you just couldn’t turn away from. Then I asked the people at Quantico to include a visit to the museum in their new agents training program. There was some resistance at first. The sixteen weeks are already jam-packed. But I asked them to try it with one class and see what the feedback was, and the reviews were incredible. Not only did we continue it with our training, but the program is now being used by the FBI’s National Academy, also based at Quantico, which to date has trained over 39,000 local, state, federal, and foreign police officers in its premier eleven-week program.
To further drive home the point that one man of extraordinary courage and moral character can make a great difference, I also had a memorial garden dedicated at Quantico to honor Giovanni Falcone, near the spot he had visited in 1982 when the groundwork was first being laid for international cooperation on the Pizza Connection cases.
Over the years, the Anti-Defamation League had done training sessions for the Bureau. No one, after all, has a better feel for hate crimes than the ADL. When I learned that the group had a Holocaust exhibition touring its own regional offices, I asked Abe Foxman, the longtime ADL executive director and one of my heroes, if we could tour it through our field offices, too. To kick off the program, we had Elie Wiesel speak at the first Holocaust Remembrance Ceremony at FBI headquarters. Again, the feedback was outstanding.
Ethics were central to what I was trying to instill as director because those drug dealers my anguished jury had set free drove home to me the practical consequences of ethical failures, but beyond that, I wanted to establish a set of core values that would inform everything the Bureau did. I helped write that document—it still hangs in field offices, FBI facilities, and foreign legats from Quantico to Beijing—and I made sure to include not just honesty and integrity but other values not always associated with police forces such as fairness and compassion. Why? Because I had had some experience also in the benefits of treating even hardened criminals as human beings.
Back in my days as an FBI agent, my partner and I had gone out to serve an arrest warrant on an organized-crime guy at his house. The normal drill was to grab the guy in the morning before he was really awake: knock on the door, cuff him if he resisted, the whole nine yards. But we had been watching this guy for a number of days and knew that he had a wife and small kids living at home, and I hated the thought of those little kids seeing their dad hauled away. So I did something I never should have done. On the mornin
g of the collar, I called the guy from a pay phone down the street—this was before cell phones—and told him we had a warrant for him.
“I know,” he said. “I’ve been expecting you.”
“Listen,” I told him, “I don’t want to do this in front of your wife and kids. What I want you to do is walk out of the house in five minutes and come down to the corner. We’ll be waiting in our car, and we’ll arrest you there.”
I recall his response to this day: “Mr. Freeh, thanks, I’ll be right with you.”
Just to be on the safe side, in case he did decide to run, I told him that we had ten guys around the house. There were only two of us, and fortunately, that’s all we needed because within five minutes the guy was heading our way down the street. Three years later, this same guy sent word from a federal prison that he wanted to see me. “I’m paying you back,” he told me, “for not arresting me in front of my kids.” And then he handed me a big case—against someone he obviously didn’t like and under the condition that he wasn’t in any way named—but it was all because someone had treated him decently when no rulebook said that had to be the case.
Obviously, we have to treat the victims of crime and their survivors with equal, even greater, compassion, and to me that meant being true to our word when we told those families of the dead at Khobar Towers that we would leave no stone unturned to bring the killers to justice. My distraught jury had taught me that. People who feel they can’t trust their leaders to be true to their word will eventually lose faith in government altogether.
Sometimes the cases I was handed touched me in deeply personal ways. One day I was randomly assigned a Title 7 complaint, a woman alleging sexual discrimination by a Wall Street firm. I looked at the firm’s name, and all of a sudden my memory went shooting back more than three decades to a story my mother had once told me. She had just left high school and was trying to land her first full-time job in New York when she went down to this Wall Street firm to fill out an application. A friend worked there and thought it would be a good fit, and indeed the interview seemed to go very well. Two or three people were under consideration, her friend told her, but my mother seemed to be the front runner. Finally, after waiting half the afternoon, the personnel head came out and told my mother, “We’d like to employ you, but we don’t hire Italians.”
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