And on the Seventh Day, He Rested

No, he’s not God, but his clients rank Ben Brafman just a few rungs below that

Published in 2006 New York Metro Super Lawyers — July 2006

The images, awards and press clippings that line the walls of Ben Brafman’s 26th-floor office tell a story. A photograph of Brafman and Johnnie Cochran with their victorious client Sean “P. Diddy” Combs speaks to Brafman’s own celebrity status. A note from another client, scribbled on a courtroom sketch, reads: “I’m writing this while the jury is still out. If I’m convicted I have no regrets as far as my counsel is concerned. You’ve done a brilliant job. Thank you.” He was acquitted.
 
As reflective as these things are of Brafman’s successes, the collection of family photographs, including one of his eight grandchildren hamming it up on his back porch, reveal what truly matters to him.
 
There is another, of Brafman’s eldest grandson, Max, then a toddler, with the inscription “Peter Gatien was acquitted, hooray for Grandpa Benny!” It illustrates how the two loves of Brafman’s life — the law and family — often become intertwined when he takes on a case.
 
“People read about the glamour, but they don’t know the sleepless nights Ben spends worrying about his clients and their families,” says Lynda, his wife of 35 years. But this ability to combine practical skill and compassion has transformed Brafman into one of the most celebrated criminal defense lawyers in the country.
 
Brafman, 57, has successfully represented an eclectic group of clients, including James Patino, who was charged in the 1989 Bensonhurst killing of African-American teenager Yusuf Hawkins; accused heroin dealer and reputed mob member Vincent Basciano; New York nightclub owner Peter Gatien, who was charged with drug racketeering and conspiracy in 1998; and rapper, fashion mogul and entrepreneur Sean “P. Diddy” Combs, then Puff Daddy, who was charged with illegal possession of a gun and bribery after a 1999 shooting incident at a Manhattan night club.
 
It is an impressive roster for one who by his own admission was more scamp than scholar growing up and who at first “went to law school because it would give me another three years before I had to decide what I really wanted to do.”
 
Brafman was raised in Crown Heights, Brooklyn, by Orthodox Jewish parents who survived the Holocaust. “I was a tough street kid and at times my mother expressed exasperation about what was to come of me,” says Brafman. “But part of the reason I have a wide appeal with jurors and can move with equal ease in, say, the hip-hop community and the Orthodox Jewish community is because I moved that way as a child. I played with Jewish kids, African-American kids, Irish kids, and to me we were all just kids. We fought amongst ourselves, we fought against each other, but we were just kids.”
 
Brafman put himself through night school at Brooklyn College working myriad day jobs: waiter, gardener, stand-up comedian, T-shirt salesman and legislative assistant to then-assemblyman Stephen Solarz of Brooklyn. At 19, he was helping constituents get public assistance and making speeches for Solarz in his absence. Despite the experience, Brafman’s poor grades led him to Ohio Northern University Law School rather than a better-known institution. At Ohio, he made law review and set his sights on a summer internship with the top Manhattan criminal defense firm of Robert McGuire and Andrew Lawler.
 
Though McGuire initially gave Brafman the brush-off when he called from Ohio, he did agree to have lunch with him the next time he was in New York. Brafman flew to New York the next day.
 
“I had never heard of Ohio Northern University Law School and did not start out thinking that I was going to hire Ben,” says McGuire. “But he very quickly impressed me with his tenacity. It was like, ‘There is no choice here, you’re hiring me!’”
 
Brafman parlayed his summer job into a full-time position in 1974 and worked with McGuire and Lawler for two years. His doggedness made him an asset — McGuire recalls sending Brafman to collect money that had been confiscated by the police property clerk’s office. “I had been unsuccessfully trying to get the client’s money back. I gave Ben the assignment and he walked into my office with the check.”
 
In 1980, Brafman took a job in the Manhattan D.A.’s office to get more trial experience. As an assistant district attorney, he tried 24 cases in four years and lost just one. He then borrowed $15,000 from his wife’s grandfather, rented a space in a tony townhouse on East 74th Street and went into private practice.
 
Business was brisk; Brafman hustled cases, and prominent criminal defense lawyers he’d met as adversaries while working in the rackets bureau as an assistant D.A. offered him many cases. Unsurprisingly, several involved suspected members of the mob.
 
Brafman says he took these cases because they offered invaluable experience. “Twenty-five years ago, the best criminal defense lawyers in the city were trying these RICO [Racketeer Influenced and Corrupt Organizations Act] cases because those were the only ones that actually went to trial,” he says. “I had 25 years worth of trial experience in the first five years that I was a criminal defense lawyer, working with these lawyers on back-to-back cases.”
 
Still, he makes it clear, “Regardless of how many cases I tried many years ago that involved some allegation of organized crime, I have never been what people would call a mob lawyer.”
 
In 1994, Brafman represented Vincent Basciano, who was charged with being the main supplier of heroin sold under the name Blue Thunder. Roland Riopelle, the assistant U.S. Attorney who tried the case, was certain that Basciano would be convicted.
 
“[Basciano] was guilty as sin,” says Riopelle, “but the truth is, most criminal cases are a poker game in which you’re dealt a pair of twos. If you know how to play that hand and play it well, sometimes you win. Ben’s a damn good poker player when it comes to this type of game.”
 
Part of playing the game for Brafman involves something that has become his trademark — using the prosecution’s own tapes against them. Basciano was acquitted after Brafman convinced the jury that his client had actually been discussing illegal gambling, not drugs, in wiretapped conversations.
 
Mark Baker, a longtime friend and counsel to Brafman’s law firm, says, “If the government is going to play 10 tapes in a case and they’ve recorded 100, most attorneys will listen to 10. Ben will listen to all 100 and then use the other 90 for his defense.”
 
Another of Brafman’s weapons is his self-deprecating sense of humor. He jokes about his height — he’s 5 feet 6 inches — in one case telling the jury: “The prosecutor wants you to believe this story. I want to be six inches taller. But neither one of us is going to get our wish.”
 
“Ben goes to court and instantly gets the jury to like him,” says Baker. “They look at his client and say, ‘This guy can’t be all bad if Ben Brafman puts his arm around him.’”
 
Despite Brafman’s charm, wrapping clients in his likeability is no easy feat, especially when it comes to representing people who, either because of their alleged associations or fame, are instantly vilified by the media. “Representing someone who is viewed as ‘notorious’ is difficult, but you need to make certain that the jury understands that the trial is going to be determined by the facts that get admitted into evidence, and not as described in the tabloids,” says Brafman.
 
Such was the case with Peter Gatien. Gatien was the owner of two infamous New York nightclubs, Limelight and Tunnel, where drugs allegedly flowed freely. The government charged that Gatien encouraged drug use in order to attract more patrons. The case was unique in that the DEA, NYPD, Manhattan D.A. and U.S. Attorney simultaneously prosecuted him.
 
“You can probably count on one hand the guys who will take on a government that doesn’t run out of money or time, in a case where the system is so stacked against the defendant,” says Gatien. “Ben saved my life.”
 
At the trial, Brafman decided that he had done a solid job in discrediting the prosecution’s witnesses, many of whom were drug dealers, and in a risky move, decided not to put on a defense. The decision heightened the emotion when the verdict was read — not just for Gatien, but for Brafman himself.
 
“I thought I was going to faint,” says Brafman. “My hands were shaking, my heart was pounding. It was almost as if they were reading a verdict that would affect both of us for the rest of our lives. And it did.”
 
For Gatien, the acquittal meant freedom. For Brafman, it meant fame. Nevertheless, the intense media attention was nothing compared to what Brafman would experience during the Sean Combs case.
 
Brafman was brought on board by Johnnie Cochran, who was Combs’ initial lead lawyer.
 
“I asked Johnnie for a referral for a criminal lawyer — one who was smart, who would articulate my innocence, and who would play as hard as the New York district attorney was going to,” says Combs. “As soon as Ben came into the room, I knew he was my man.”
 
The fact that Cochran brought him in and made him lead attorney meant that Brafman fought not only to keep Combs out of jail, but to uphold Cochran’s trust. “Johnnie had shown so much confidence and friendship in letting me carry the ball that I wanted to get into the end zone without fumbling,” he says.
 
Cochran’s widow, Dale Mason Cochran, says Brafman did her husband proud. “Ben was formidable. He represents his clients the same way Johnnie did — he gives his all, he’s very focused, and he’s an advocate for his clients.”
 
Brafman likened working with Combs on the trial to “sharing a foxhole during a war.” Today, they remain close friends. Combs calls Brafman Uncle Benny and they send messages to each other in hiphop: “I’ll get messages: ‘B this is P, holla back at me,’” says Brafman.
 
“Ben made me feel like the case was about saving my life,” says Combs. “He’s always been there for me; it’s never been about money. He looks at me as a family member.”
 
Many of Brafman’s other clients feel the same. “Not only was Ben like my best friend, he was psychiatrist, spiritual adviser, the only hand I could cling to in a life that had been totally turned upside down,” says Gatien.
 
Brafman’s softer side is what he believes sets him apart from many of his peers. “I grew up in a home where kindness, generosity, friendship and tolerance were the rule. My parents looked for the goodness in people and that has a lot to do with being a good criminal defense lawyer; it has a lot to do with who I am.”
 
Nevertheless, it makes his job more difficult. “If you don’t have compassion, then maybe you can have a lot more fun doing this, but many of my days are complicated, sad adventures,” he says.
 
In addition to family, it is Brafman’s faith that sustains him, and he leaves work early every Friday to make it to his Long Island home before sundown. “The fact that I observe the Sabbath gives me a 24-hour period every week to just stop and think about what’s really important,” he says. It also gives him a chance to offload what his rabbi Kenneth Hain calls “psychic baggage” — “What Ben feels for his clients is certainly beyond empathy,” says Hain. “He is in a way suffering with them.”
 
Maurice Sercarz, who worked with Brafman on the Blue Thunder case, says, “Even those of us who consider ourselves good lawyers have to keep a certain clinical reserve — you get too close and this stuff can eat you up. But Ben really takes his clients’ circumstances to heart.”
 
It is fitting then that in speaking about him, many of Brafman’s clients and colleagues refer to him as advocate, or counselor. While the words are meant to be synonymous with lawyer, Brafman truly lives up to the title.

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