Brafman’s Everest of high-profile came in 2011 when he represented Dominique Strauss-Kahn, the head of the International Monetary Fund and leading candidate for the French presidency, who was indicted for the sexual assault of a maid in a New York City hotel. It looked bad for the man known as DSK. His days of foie gras seemed over. The world-wide media spotlight on the case was blinding. But Brafman declared that, once the evidence was reviewed, it would be clear that there was no forcible compulsion. Sure enough the maid’s story quickly unraveled. In a rare move, the prosecutor filed a recommendation that all charges be dropped. The court did so. News that the case was dismissed was reported on the front page of newspapers world-wide.
But despite all his well-known clients and cases, Brafman explains to me that there is another side of his practice. Some of his greatest professional successes, he tells me, are ones that “nobody will ever know about or hear about.” These are situations, he says, where he was contacted early enough in the proceedings and was “able to convince the government that it’s not a criminal case.” He also shares with me that “there are about ten well-known, household names, of very, very important, impressive people, that I’ve helped get out of really messy situations who nobody really knows about except me, and them, and maybe an investigator who helped me.”
How To Do The Hardest Job In The World
Ben Brafman shared a lot of stories as we sat across from each other at a work table in his office. But one stands out. Ironically it came at the end. As I was packing up my things, and fortunately hadn’t yet turned off the tape recorder, Brafman tells me about a bar association program that legendary white-collar lawyer, the late Robert Morvillo, hosted called “Giants at the Bar.” Speeches were given by renowned practitioners of various stripes.
One year Brafman was chosen as the criminal defense giant at the bar. His speech was preceded by one from a very prominent plaintiff’s lawyer who specialized in medical malpractice cases involving brain injured babies. The med mal lawyer announced to the room that, with all due respect, he had the hardest job of any of the “giants.” After all, as he saw it, he had to ask jurors, of ordinary means, to award fifteen or thirty million dollars – an amount that they could never fathom. And he had the task of explaining why they should do so.
Next it was Brafman’s turn at the microphone. And he was not so convinced that the medical malpractice lawyer had the toughest task: “Give me a break,” he said to him. “You are representing a baby in a coma. I have a 350 pound Italian gangster, who is charged with murder, is guilty of murder, looks like he is a murderer and I gotta get him acquitted. You have a baby in a coma. You know, I think I have a much harder job than you.”
The difficulty of Brafman’s job is a theme throughout our discussion. While admitting that it “sounds obnoxious when you say it, until you understand it,” Brafman tells me that he thinks he has “one of the hardest jobs in America.” “I always have homework, the pressure is intense and it’s worse in many ways than being an oncologist, who has to deal with a person whose death may be impending. They don’t have to generally deal with the humiliation factor. The stigma of getting sick doesn’t alienate our family. To the contrary, people get sick, people rally around them. You get indicted and you’re in The New York Times, sometimes I’m the only person left in your life who will embrace you and talk to you and be your lawyer and your confidant and your psychiatrist. . . . I’ve talked more people out of committing suicide than most psychiatrists will in a lifetime.”
Brafman says that what he does is “probably more intense and has much more pressure than any other kind of litigation regardless of the stakes. Because at the end of the day,” he explains, “the quality of life of another person is going to be seriously impacted. As will be the quality of life of the spouse or significant other, children and grandchildren. It impacts generations to come.”
Unlike magicians who wear capes, Brafman can’t just wave a wand to make problems disappear. So how’s it done? I ask. Obviously you need superb trial skills--but surely there’s more to it than that. Brafman explains to me that he’s good at “[p]ersonalizing and making a complicated case juror friendly. . . . I think every case has a heart and you gotta find it and grab it and keep it beating.” In a New York Magazine profile, a veteran prosecutor attributed Brafman’s success to an ability to “wrap his clients in his own credibility. Jurors wind up saying that ‘the defendant couldn’t be that bad if Ben’s speaking for him.’”
But, of course, it takes the right jurors. Brafman says that he has “good people skills” and has found jury consultants to be “completely ineffective.” He explains that he does not want jurors who may be “experts” on an issue in the case, to avoid dealing with “a jury of one person.” He tells me that his “basic tenet” in jury selection is to ask himself if “this a person I think I’d like to have a cup of coffee with if I ran into them and we’re just sitting next to each other on a plane or we met at a social occasion? Is it someone that I think would like me as person?” His objective is to find people who “come to the table” able to follow the presumption of innocence. “There are a lot of people who have concluded in their life that if you get arrested and charged you are guilty.” His task is to avoid people who are a hater of the client or crime “to a degree that [he] will never overcome” and who he will never get to listen to him during opening statements.
The Shkreli Case: Jury Selection
Jury selection in the Shkreli case demonstrates what he’s telling me. Brafman shares with me the story of a prospective juror who made a vile statement during a sidebar conference. “So much for the presumption of innocence,” Brafman quipped. To which the man replied: “I’m holding myself back from walking over to the table and knocking your client on his ass.”
The September issue of Harper’s magazine, in a piece called “Public Enemy,” features some of the comments made by prospective jurors on the Shkreli case. Juror No. 125: “I’ve read extensively about Martin’s shameful past and his ripping off sick people and it hits close to me. I have a mother with epilepsy, a grandmother with Alzheimer’s, and a brother with multiple sclerosis. I think somebody that’s dealt in those things deserves to go to jail.” The Court: “Just to be clear, he’s not being charged with anything relating to the pricing of pharmaceuticals.” Juror No. 125: “I understand that, but I already sense the man is guilty.”
Despite not getting an all-out acquittal, Brafman says “I’m as proud of that verdict as I am of any verdict I’ve had in my life, because going in the intense dislike for [Shkreli] by prospective jurors was stunning, based on the conversations at side bar.” Looking at the comments in the Harper’s piece, it is easy to see why Brafman ranks the verdict that way.
Handling High-Profile Cases
There are challenges to handling high profile cases, Brafman tells me. “In a high profile case,” Brafman tells me, “everyone knows what you’re doing. Everybody is able to comment on what you’re doing. . . . That’s not the same with anyone else. I have friends who are surgeons. They lose a patient. The family and close friends know and they blame G-d. They thank you for your efforts. They hug you. ‘I know you tried your best, doctor.’ . . . . I’m on a public spinning stage and every day everybody knows that I’m on trial in this courthouse and this is what happened on that day. And not every day is a home run in a criminal case.”
He also didn’t hold back on what he thinks of cable news-talking heads. Brafman, along with co-counsel Johnnie Cochran, won an acquittal for Puff Daddy on weapons and bribery charges. The trial was the subject of intense media coverage. Brafman recalls hearing a television commentator, “who has never gone to verdict in a criminal case,” say “I don’t understand what Brafman and Cochran could have possibly been thinking when Brafman asked that question.” Of course, as Brafman notes, the “people listening to that idiot really think that he or she is an expert in criminal defense work. He’s on TV. This must be someone who was picked for their expertise. They don’t know that [the talking head] doesn’t know what they’re talking about . . . So you have to develop thick skin.”
From Morgenthau and Back
Brafman grew up in Brooklyn and Queens in a strict Orthodox Jewish home. He is still observant and does not work on the Sabbath. His parents escaped the Holocaust. His mother’s parents and sister were killed in a concentration camp. Brafman readily admits that he wasn’t much of a student and dozed through Yeshiva classes. He eventually worked his way through Brooklyn College at night. With less than stellar grades, law schools weren’t beating down his door. He received a scholarship from Ohio Northern University Law School and he and his wife set out for Ada, seventy miles from Columbus. Brafman later earned an LL.M. from New York University Law School in Criminal Justice.
Brafman returned to New York from Ohio and did a two-year stint with a well-known criminal defense firm. From there he spent four years as an Assistant District Attorney in Manhattan. The office was headed by the legendary Robert Morgenthau and Brafman worked in the Rackets Bureau. He tried two dozen cases as an Assistant D.A. and in 1980 took the plunge and went out on his own.
Brafman and Morgenthau were eventually reunited, of sorts. In television’s Law & Order, Morgenthau served as the basis for D.A. character Adam Schiff. Schiff may have been fictional, but many of his cases weren’t so make-believe at one point. Brafman tells me that at least ten of his cases have served as the basis for Law & Order episodes. And he has some advice for the show’s writers, who sometimes change the facts to achieve a desired result: “If they had just stuck with the facts it would be a better show.” But the dapper lawyer, with great hair, was pleased that the character who portrayed him, in Law & Order’s take on the DSK case, was well-dressed.
Brafman’s success in the courtroom has led to a wall of awards, including the first-ever Clarence Darrow Award for Distinguished Practitioner by the New York State Association of Criminal Defense Lawyers, the Robert M. Morgenthau Award from the Police Athletic League for outstanding achievements in the field of Criminal Defense and the Pursuit of Justice Award from the American Association of Jewish Lawyers and Jurists. In addition, Brafman, a fierce public advocate for the State of Israel and Jewish community, has served as the Keynote Speaker, Host or Master of Ceremonies for over 100 formal programs sponsored by important charities, social, educational and/or religious organizations.
Plaxico Burress: Timing Is Everything
In February 2008 Plaxico Burress caught the touchdown that put the heavy underdog New York Giants over the New England Patriots in Super Bowl XLII. Later that year Burress was charged with criminal possession of an unlicensed handgun after accidentally shooting himself in the thigh while in a New York City nightclub. Burress was facing a mandatory minimum of three and a half years. Brafman represented the wide receiver. He ultimately agreed to a plea that included a two year prison sentence.
Unfortunately for Burress, the incident took place just days after a new city gun law went into effect. “They wanted a poster child for the new gun law,” Brafman explains, “and Plaxico Burress, because he was the Super Bowl champion and caught the winning pass, he became the guy.” Brafman tells that he had several cases before the Burress situation, and several after, involving a legally owned but unlicensed weapon, not used in a robbery, and involving no injury where “outcomes were substantially different.” “The mitigating circumstances either ended with no jail sentence or six months. [But] they wanted to make an example of Burress.”
Despite the passage of ten years since the Burress case, Brafman’s anger over its outcome still lingers. “It was one of the cases that pained me the most,” Brafman said. He thought it surprising that Morgenthau wouldn’t understand the mitigation in the case, which Brafman thought was “palpable.” But “[y]ou know, [Mayor] Bloomberg [was] a powerful man at a powerful time.”
The Book Not To Be
Despite having more than enough material for a memoir, Brafman tells me that he has no interest. It’s just not workable in his situation, he explains: “You can’t do a memoir without alienating people whose privacy you have maintained over the years. . . . Many of the people I have represented really don’t want people to be reminded that ten or fifteen years ago they had a case. There’s a whole new generation out there who are being raised who really don’t know about some of the people I’ve represented or that they needed a criminal defense lawyer.”
While there will never be a “My Life in Court,” by Ben Brafman, he knows what he would have called it: “Tsuris.” It’s the Yiddish word for problems, he tells me. “What I deal with are other people’s problems. It’s a heavy load,” Brafman sighs. “I haven’t had a good night sleep in 35 years.”
[Elizabeth Vandenberg, 1L, University of Iowa College of Law, assisted with this article.] |