Memoir of a nuts & bolts prosecutor

Posted: September 02, 2012

The True Story of the Prosecutor Who Took On the Mob, Fought Corruption, and Won

By Herbert J. Stern

Skyhorse Publishing. 560 pp. $29.95

Reviewed by Rich Aregood
Every freshman law student learns that he or she is there to learn about the practice of law. If justice happens along the way, it's a happy coincidence.

Herb Stern was in the business of increasing the frequency of those coincidences, prosecuting the well-connected bad guys despite frequent pressure from above, and tempering justice with intelligence and compassion.

His memoir is no high-flown philosophical tome, though.

It details the gritty realities of a prosecutor's office that few people witness. As a young New York City assistant D.A. confronted with cases that featured both a guilty defendant and a policeman lying on the witness stand, Stern had to think about justice in a sadly nuanced way. In his days as a U.S. attorney, Stern saw political interference at every level, even to a fascinating story about a deal possibly cut between Presidents Dwight D. Eisenhower and John F. Kennedy to protect a high-ranking crook.

None of this is as simple and clear-cut as an episode of Law & Order.

The challenge in 1973 was to continue the wave of prosecutions that already had convicted high state officials, the mayors of Jersey City, Newark, and Atlantic City, and a U.S. congressman, while fending off the politics and incompetence of the U.S. Justice Department. Additionally, President Richard M. Nixon's people wanted the office to win political show-trial convictions of the "Camden 28," a group of priests, ministers, hippies, and Catholic laypeople opposed to the Vietnam War who had been led into a draft-board raid by an FBI informer.

Stern learned of this in a phone call from Robert Mardian, Nixon's head lefty-chaser. The investigation had been overseen from Washington, not from Stern's office. Stern would assign John Barry, his best prosecutor, to the case. As Stern says in the book, "The defendants were given every opportunity to say what they wished to the jurors." He later calls it "a plain, open instance of jury nullification. . . . It is the old tension between doing law and doing justice. But as long as we preserve the right - or at least the ability - of jurors to do justice there will be limits to how far the state and the nation can go in the name of the law."

In other words, Stern and Barry artfully, and ethically, gave the jury the opportunity to do the right thing, and the defendants were acquitted. In an endnote, Stern writes of one of the priest/defendants assisting at Barry's funeral Mass.

Diary of a D.A. is a convincing answer to upstart places that say they have corruption. In New Jersey, the corruption was epic, with characters who seem to be out of an especially outrageous novel. The inspiration for Tony Soprano is here, the guy who kept an incinerator in his Livingston backyard to dispose of potentially talkative colleagues. There is another mobster, so confident that he threatens a prosecutor's family in a public restaurant. There are thick-headed judges - and wise judges who help young lawyers learn the trade. There is politics that works toward a bad end - and politics that gets good things done.

And there is the day-to-day messiness of a prosecutor's office, from the critical witnesses who are self-dealing, crooked, dishonest, and absolutely essential to convicting somebody even worse, to the defense attorneys who are so brilliant that it is thrilling to engage them - like Edward Bennett Williams and Ray Brown.

Through it all, Stern is a fascinated observer, thoroughly honest in both his job and his writing about it. He knows the power and the art of the leak, although he attributes them to others. He appreciates and is skilled at playing to the public, so appreciative of the fierce support his crusade got from the Trentonian's editor Gil Spencer (later the editor of the Philadelphia Daily News) that he returned the favor by nominating Spencer for a Pulitzer Prize, which he won.

This is a brave man who approaches the law knowing of the necessary techniques and occasional compromises it entails. He is outspoken in his opinions of the nitwittery of the "War on Drugs," especially the criminalization of addicts, briskly dismissive of attempts to control people's "moral" behavior, and no fan of capital punishment.

He can write some, too.

Richard Aregood, a professor at the University of North Dakota, is the former editorial page editor of the Daily News and the Newark Star-Ledger.

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