By Herbert Stern, Skyhorse Publishing 2012, $29.95.
Herb Stern has had an amazing career arc. From the lower east side of Manhattan to Chicago Law School, assistant district attorney under the legendary Frank Hogan (where he was part of the investigation of the murder of Malcom X), trial attorney for the Department of Justice's Organized Crime and Racketeering Section, chief assistant U.S. Attorney and then U.S. Attorney for the District of New Jersey (where he cleaned up pervasive mob-influenced public corruption), U.S. District Judge for New Jersey (from which he was specially appointed to try a hijacking case in the U.S. sector of Berlin, Germany), cofounder of a famous trial advocacy program at the University of Virginia School of Law, and in-demand trial attorney.
He is also a terrific writer. His five-volume treatise "Trying Cases to Win" (an updated one-volume version of the treatise, coauthored by law professor Stephen Saltzburg, will soon be published by the American Bar Association) is a transformative, ground-breaking analysis of the fundamentals of trial persuasion, and the autobiographical "Judgment in Berlin," about the courtroom drama and diplomatic intrigue surrounding an extraordinary jury trial of East German hijackers in the American sector of Berlin (made into a film starring Martin Sheen and Sean Penn) is as taut and exciting as any best-selling courtroom procedural by John Grisham or spy novel by John le Carré.
"Diary of a DA" covers Stern's career from 1962, when he entered the Manhattan District Attorney complaints bureau, to January 1974, when he took the oath of offices as a federal judge. It is, accordingly, a prequel to "Judgment in Berlin," and also fleshes out many of the trials that are discussed in "Trying Cases to Win," and combines the excitement and intrigue of the former with the battle-tested lessons of the latter.
It is hard to believe today how corrupt New Jersey politics were as we entered the 1960s. In some cities, the mob controlled the government. In other cities, the government controlled the mob. The corrupt enmeshment of government, law enforcement and organized crime in a culture of illicit backscratching had hardened over time into what the participants referred to as "our way of life." That way of life meant that a company that wanted to do business in New Jersey had to pay kickbacks for the privilege, and municipal and state law enforcement was either involved or turned a blind eye to the process. "Diary of a DA" describes how Stern and a dedicated group of prosecutors, aided by an honest U.S. senator and some courageous judges, were able in a short period of time to expose the corruption within New Jersey government and convict high-ranking politicians and mafia bosses— including, incredibly, the mayors of Newark, Jersey City and Atlantic City, along with significant members of the governor's cabinet.
Stern succeeded where others failed for a couple of reasons. One is that Stern appreciated that the key to uncovering systemic corruption was to follow the money. This is the same approach taken by the Baltimore Police Department in the celebrated television show The Wire, which is, in some ways, a fictional analog to the real-life exploits in "Diary of a DA." (Note to Hollywood: "Diary of a DA" would make a terrific miniseries). Stern's team built cases by first subpoenaing financial records, identifying questionable transactions, and hauling the participant before federal grand juries.
Like "Trying Cases to Win," "Diary of a DA" can be read as a trial practice handbook. And it is an exceptional trial practice handbook, full of valuable precepts illustrated by colorful real-life examples. Facing the courtroom legends Samuel Rifkind and Edward Bennett Williams, Stern learned never to start a case with a weak witness. He shows how the paralyzing fear of the closing argument can be surmounted by diligent preparation and adherence to the principle that the primary purpose of a closing is to arm sympathetic jurors to argue your case during deliberations. He demonstrates that, because jurors believe that the attorneys know facts that may never be presented at trial, an attorney's credibility and ability to express an honest belief that her case is just is the greatest asset of any trial attorney. He explains why the defendant is the most important witness in any criminal trial in which the defendant testifies; if the defendant is believed, he will be acquitted; and if the defendant is liked, he may be acquitted even if not believed.
By hard effort and occasional flashes of intuition, Stern and his diligent team were able to surmount unpredictable challenges as strange and coincidental as a pulp serial, such as the deathbed testimony of a witness dying of Lou Gehrig's disease, interpreted by his wife; a witness so corrupt and self-preserving that he will betray both his mob associates and his prosecutorial protectors; municipal dumping of sludge off the Jersey coast; and Gallic obstructionism of prosecution of a multi-aliased drug-dealing officer of the French CIA.
The cast of characters is also Dickensian: Crazy Joe Donahue, a ruthless Westies killer so crazy and violent that he shoots his passenger while driving across Central Park; prosecutor Vincent J. Dermody, a "dems and dose" kind of guy whose particular courtroom genius is convincing the jurors that he is incapable of telling them a lie; Simon Rifkind, former federal judge and guiding spirit of Paul, Weiss, Rifkind, Wharton & Garrison, LLP, whose brilliant courtroom manner is only slightly weakened by a small touch of vanity, tiny cuffs on the sleeves of his immaculately tailored suits; Edward Bennett Williams, the consummate political insider and prodigiously gifted cross-examiner, whose only courtroom flaw is a theatrical demonstration of his prodigious memory; Robert "Iron Balls" Shaw, a savvy and courageous federal judge with a rare gift for public relations; Senator Clifford P. Chase, an honest politician disgusted by the climate of corruption in New Jersey; Sam "The Plumber" Cavalcante, mob boss of an independent New Jersey family, so confident of his position that he physically threatens U.S. Attorney, and later U.S. District Court Judge, Fred Lacey; Congressman Cornelius Gallagher, corrupt beneficiary of the Hudson County organization and ranking member of the House Foreign Affairs Committee; and Hugh Addonozio, former Congressman and Newark mayor, tool of Angelo "Gyp" DeCarlo, a mafia loan shark with high ambitions in entertainment, now enshrined as a character in the Tony Award winning Jersey Boys.
The most rewarding character is Stern himself, a smart and self-aware product of a lower middle-class upbringing on Manhattan's Lower East Side. (Stern had a fine role model: his father dropped out of grade school in order to support his family, then went to high school and law school at night, ultimately rising to be a bureau chief in the New York Attorney General's office). Stern went to Stuyvesant High School, then, as now, a training ground for the city's smartest kids, and the University of Chicago Law School.
Stern is a prosecutor who understands a prosecutor's moral obligation to do justice as well as win convictions, as exemplified in Justice Jackson's famous address, "The Federal Prosecutor."
So while Stern is an aggressive prosecutor willing to exert his discretion to its full extent in pursuit of the guilty, he is also nuanced and aware, unwilling to prosecute merely to claim scalps. He learns from his mistakes. He cares about doing the right thing, not just winning. He shares insights and opinions, sometimes controversial, regarding the prosecutorial function and the sometimes mistaken value judgments in our criminal laws.
'Diary of a DA" is punctuated by Stern's many acts of generosity and kindness to victims, to adversaries and to defendants, which show Stern to be as good a person as he is a prosecutor.
In short, "Diary of a DA" is that rare book that has rewards for almost every reader. It covers an incredible variety of exciting incidents, intriguing personalities, and important topics, and entertains as well as instructs. It deserves the widest possible audience.
Philip Schatz is a partner with Wrobel Schatz & Fox.