Constitutional Law

Double Jeopardy

The case of former New York state Sen. Joseph Bruno

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While the country processes the racial politics-inspired prosecution of George Zimmerman, which came to a conclusion last week, and as the calls to try him in federal court for the same events for which he was acquitted in a state court become louder each day, a case in upstate New York is making its way through the system that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice and may give Zimmerman a foretaste of things to come.

Sitting patiently waiting for a Manhattan federal appeals court to order the government to obey the laws it has sworn to uphold is former New York state Sen. Joseph Bruno. Unlike many in the New York Legislature today, Bruno, a fiercely Catholic conservative Republican, was a pillar of legislative integrity, known even to his political adversaries as a man of his word. Once you shook his hand, you could count on his compliance with the agreement sealed by the handshake.

The justice for which the former state senator sits and waits is not based on any novel or arcane legal argument or any legislative loophole. It is a principle of law as old and as revered as the country itself. It is the constitutional prohibition against double jeopardy. Simply stated, the Obama administration wants to try him twice for the same alleged events, and he has asked a federal appeals court to prevent it from doing so.

Here's what happened. In December 2009, Bruno was convicted by a federal district court jury in Albany, N.Y., of violating the federal "honest services" statute. Following the law as it then existed, the jury found that he had failed to inform the state of New York—his employer in his capacity as a sitting state senator—that he was also employed elsewhere. Being a New York state senator is a part-time job, and virtually all sitting state senators have other employment. Nevertheless, by this failure, he supposedly had denied the state his undivided, or "honest," services. He was not convicted of bribery; he wasn't charged with bribery. He was only charged with and convicted of violating this inane statute.

The statue is inane because it defies the age-old definition of "crime." Crime is harm—generally, harm to the public order. This honest services statute has permitted Bruno and others to be prosecuted, not because their behavior caused any harm but because of their silence. But the statute was more than inane. It was also unconstitutional, because it punished silence; and silence is a natural right—for which we don't need the government's permission to exercise and, as a consequence, with which we cannot receive the government's heavy hand.

Last year, the U.S. Supreme Court unanimously invalidated the honest services statute and ruled that the failure of an employee to tell one employer of his employment relationship with another employer, without any palpable harm to either employer, cannot be a crime in America.

As a result of that ruling, a Manhattan federal appeals court threw out Bruno's conviction. In a fair world, that would be the end of his ordeal. However, the Obama Department of (political) Justice obtained a new indictment against Bruno based upon the same set of facts that had formed the allegations of a violation of the honest services statute, but which it now claimed constituted bribery. The feds did this even though they had told the federal judge in the first trial nearly a dozen times that the state senator had not committed bribery and even though the witnesses who had testified for the government in the first trial uniformly stated when asked that Bruno had not been bribed.

Bruno's lawyers saw right through this old trick—a trick that the kings of England played on their political opponents, including many Colonists. A trick so abominable that the Framers expressly prohibited it in the Constitution. The trick is played when the government calls the old crime—the one for which the charges have ended favorably for the defendant—by a new name, and presto … it can try the defendant again, even though it lost the first round. Regrettably, a federal judge in Albany bought this argument. His decision to let the feds prosecute Bruno a second time for the same events as were subsumed in the first trial is now under appeal.

Can the feds legally do this? In a word: NO; obviously NO. And in the federal system, it is very rare for an appeals court to get involved in a case before the case has reached a conclusion in the trial court. The fact that the appeals court is even hearing Bruno's appeal at this stage—before any second trial has taken place—is a sign from the appeals court that the feds are not following the Constitution and the trial judge in Albany ought to have known that.

Joe Bruno—nearing the end of his distinguished public career at age 84—is now a symbol of fidelity to the Constitution and an obstacle to a political Department of Justice that lacks that fidelity. If the government can violate a principle as fundamental and universally accepted as the prohibition on double jeopardy—and do so in plain sight by changing the name of a charge—there is no limit to what it can do.

Before he became president, Abraham Lincoln was a very successful trial lawyer. Demonstrating the propensity of an adversary to mislead, he once asked a jury, "If you call a tail a leg, how many legs does a dog have?" Then he answered: "Four, because calling a tail a leg doesn't make it a leg." Calling an old crime by a different name does not change its essence. A federal appeals court can put a stop to this miscarriage of justice, and it should do so before it spreads its ugly unconstitutional tentacles across the land and Joe Bruno has unwanted company.

NEXT: Brickbat: Higher Ain't Always Better

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  1. that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice

    Because there wasn’t enough proof already

    1. Beyond a reasonable doubt.

  2. Government will do as it damn well pleases. It’s a matter of priorities.

  3. The framers should have put in a clause that requires the government to provide funding for defense attorneys that matches the actual amount spent in investigating and prosecuting a case.

    1. Too easy for accounting tricks to get around that.

    2. They should have provided that prosecutors have to pay for any appeal out of their own pockets. If they win, they will be reimbursed.

  4. It’s good to be goal oriented, and the goal here is not simply justice but a conviction. If Holder is afraid to dirty his hands, then I say off to The Hague with Zimmerman!

    1. Come to think of it, isn’t Zimmerman an “enemy combatant”?

      1. Well one simple pen stroke from The One can fix that… Obviously he is refusing presidential grace because he hates children

      2. Brilliant. Obama can simply drone strike Zimmerman and resolve this matter with a stroke of a pen.

    2. And if that doesn’t work, he should be brought before the Supreme High Court of the United Federation of Planets. If he’s acquitted there as well, take him to the Criminal Tribunal of the Multiverse.

      And if that doesn’t work, just lynch him.

      1. Don’t forget the High Council of Time Lords on Gallifrey.

        1. Whom would take him there?

      2. And if that doesn’t work, just lynch him.

        Al Sharpton, Jesse Jackson, and the NAACP are working on that.

  5. Our asshole governor Cuomo is going on about allegedly cleaning up government, yet I haven’t heard anything about him speaking out against the second prosecution of Bruno.

    Yo, former state AG! Ever heard of an amicus brief? But that won’t get you grandstanding points.

  6. Demonstrating the propensity of an adversary to mislead, he once asked a jury, “If you call a tail a leg, how many legs does a dog have?” Then he answered: “Four, because calling a tail a leg doesn’t make it a leg.”

    However, the government currently gets away with this all the time. For example, in NJ, a BB gun is “a Firearm”. There are hundreds (thousands?) of other examples on the state and federal level.

  7. But the statute was more than inane. It was also unconstitutional, because it punished silence; and silence is a natural right — for which we don’t need the government’s permission to exercise and, as a consequence, with which we cannot receive the government’s heavy hand.

    Didn’t the Supreme Nazgul just declare that silence is an admission of guilt?

    1. Yeah, well, speech is also a natural right, as is bearing arms, being secure in your person, articles, papers and effects, etc. etc. but FYTW. So sayeth The Nazgul, Supreme Lords of all Humanity.

  8. I’d just like to point out that the “other employment” that Bruno had and didn’t disclose were “consulting” jobs with companies with business before the legislature. That’s some important context to the basis for the charges.

    1. That sounds like an excellent argument for why he should have been convicted before double jeopardy protection kicked in.

  9. People found innocent still in prison
    Yeah, it’s Gawker, but it still points out terrible situations with our current “justice” system. So, you are innocent of a crime, but you did not file the necessary paperwork in time, so we want you to rot anyway.

    1. Hey, if he didn’t want to go to prison, he shouldn’t have gone to prison.

    2. I don’t understand why a bill was passed to restrict when these things could be filed.

      Oh, right, because fuck us, that’s why.

      1. It makes prosecutors look bad when innocent people go to prison. Better to keep them in prison than to have people lose faith in the system.

    3. I don’t know if I’d be able to refrain from extracting retribution from the people involved in my continued incarceration in such a scenario.

      And his third strike was carrying (but notably not using) a knife? For fucking real?

      I’m kind of surprised two-strikers in three-strike states don’t kill lots of people. If you’re facing life in prison anyway, what’s the difference?

      1. If there is a known, and I mean known as in everyone agrees, innocent person sitting in prison, the responsibility for that person’s remaining there lies totally with the chief executive and or pardon and parole board of the jurisdiction that is imprisoning them. Every person in prison today could be released immediately if the right person said so. The fact that a known innocent person isn’t, is a result of the people in the system just not giving a shit.

        The system can only work if the people in it want it to work. The executive is given commutation and pardon power to deal with just these circumstances. A convicted person with proof of his innocence shouldn’t have to go to court. They should be able to go directly to the chief executive and get pardoned. But we live in a world where executives really don’t give a shit if an innocent person is in prison.

        1. Next you’re going to say some crazy stuff like “if Obama doesn’t like these excessive drug sentences he should shorten those sentences with his executive clemency power!”

        2. Tho’ in California, before the governor can pardon a multiple felon, the state high court has to sign off on it.

          http://gov.ca.gov/docs/How_To_…..Pardon.pdf

    4. There are innocent people in prison, but please don’t ever reference Gawker. Please.

  10. In the first go the feds said no bribe was taken, now they are saying it is bribery…sounds like the feds have a case of the perjuries.

    1. The defence has no witnesses to call, Your Honor.

      Instead, the defence would like to resubmit into evidence the transcripts of witnesses previously called by the prosecution.

  11. “Obama Department of (political) Justice”

    Just call it the Department of Oppression. Much more fitting acronym, and it’s an excuse to refer to Eric Holder as “DOO head Eric Holder”.

  12. Similar “honest services” language in the federal wire & mail fraud statutes is how they’re prosecuting several Republican Party officials (and Libertarian Dan Halloran) for getting money related to getting someone permission from the party to run for the Republican nomination for mayor of NYC.

  13. Look, this is may be the same action but they have given it two totally different names. It is like criminal and civil court. They have different names and rules and criteria and even change the name of the “action”, murder to wrongful death, for instance, so it is totally different than taking the same person to court twice for the same crime.

  14. It works like the UCMJ. You can be tried and found not guilty by a civilian court and then prosecuted (and found guilty) by court-martial or NJP, even if you’re an off-duty reservist. It’s explained as being a “different jurisdiction”.

  15. my neighbor’s step-aunt makes $64 an hour on the computer. She has been laid off for 6 months but last month her pay check was $20249 just working on the computer for a few hours. Read more on this site http://www.Work25.co?

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