Court Slams Kerik Appeal….But Seeing Is Believing

By Andrew Kreig / Project Director's Blog

A New York federal appeals court last week rejected former New York City Police Commissioner Bernard Kerik’s claims of unfairness when his judge sentenced him to four years in prison for tax and related charges. But I was an eye-witness to the unfairness to Kerik during his sentencing in New York on Feb. 18, 2010. Kerik, a career law enforcer much-honored for valor as a city police detective, has described himself as petrified during the proceedings for fear of what the judge was doing. Kerik is portrayed immediately afterward at right with his wife, Hala, in a photo by Maxine Susseles, with another of her photos below.

Even after I reviewed the appellate court opinion, the arrogance and unfairness of the sentencing judge, Stephen Robinson, remains shocking to me. Seeing this unfold encouraged me to found the Justice Integrity Project the next month ahead of my timetable, and I remain glad of it. There’s much to do when even esteemed judges and reporters fail to act on what some of us saw with our own eyes in court.

To recap: Last week on March 31, a three-judge U.S. Second Circuit Court of Appeals panel ruled unanimously that it had no basis to reduce the term imposed by U.S. District Judge Robinson, left, on Kerik the previous year. The Republican former police commissioner had became famous for his work as the city’s most honored policeman in history even before the 9/11 attacks, and later as a best-selling author and as President Bush's nominee in 2004 to become Homeland Security secretary.

The charges against Kerik largely stemmed from his underpayment for home improvements made by a city contractor in 1999, his excessive tax deductions later, and his misleading statements in 2004 to White House vetters after his nomination as cabinet secretary. After years of increasing notoriety in the New York press in part based on this prosecution plus scandal and leaked innuendo, Kerik pleaded guilty to eight felony counts in November 2009. That was after his judge ordered him into solitary confinement pre-trial without bond, denied him a major defense witness, released his medical records to the media and threatened him with a court-ordered loss of his lawyers for what the judge regarded as a conflict of interest. At that point, Kerik gave up fighting for his freedom. He had exhausted his savings and credit with $4.6 million in legal bills, and threw himself on the court’s mercy.

At sentencing, the judge ordered a 48-month term despite federal guidelines and a plea bargaining agreement calling for a term within 27 to 33 months. The Kerik appeal cited many instances of alleged prejudicial behavior and comments by the judge, who has since resigned from the bench to become a partner at the prominent firm Skadden Arps after complaining during the Kerik sentencing that he could not make enough money as a judge. In a 10-page decision with no single author, the appellate judges ruled that Kerik failed to show he was entitled to any relief. Last May, Kerik began  serving his term at the medium-security federal prison in rural Cumberland, MD, with his first potential release date in October, 2013 if he achieves good behavior credits.

As a legal reform advocate and author, I became interested in the Kerik case after learning that he had written a brief note in mid-2009 to the legal defense fund of Democratic former Alabama Gov. Don Siegelman, whose corruption prosecution I had been exploring in depth. In the note, Kerik said he was experiencing many of the same pressures from the authorities as Siegelman. By then, I had published a number of articles on law enforcement abuses in high-profile political corruption cases in ways I found disturbing, especially as an attorney. Earlier, I had been a daily newspaper reporter who had covered federal courts fulltime from 1976 to 1981, an era when (at least in my perception) the courts and news media operated much more fairly nationwide.

One of my columns in 2009, for example, described the federal prosecution of part-time Pennsylvania county coroner, Dr. Cyril Wecht, left, also a consultant and famed medical school professor, had to spend $8.6 million to defend himself from 83 trumped-up federal felony charges. The charges were mostly that he had used his county fax machine for 43 personal faxes at a total cost to the county of $3.86 during his 20 years as a coronor earning a top annual pay of $65,000. Wecht, who doubtless antagonized some by his controversial opinions about the causes of celebrity deaths, over his career published more than 40 books and authored more than 500 expert articles on forensic medicine. As amplified below, Wecht, then 79, described for our Project how the federal government’s virtually unlimited spending authority from taxpayer dollars in these cases nationally crushes all but the most resilient defendants into guilty pleas once they are targeted, lose their jobs, reputation and usually friends and often families.

A seminar by free-market, libertarian CATO Institute helped illustrate that such abuses by prosecutors occur widely, enabled by both major political parties -- and are becoming a rapidly increasing threat to the nation’s historic freedoms in recent years. Particularly compelling was a presentation by longtime litigator Harvey Silverglate, author of the important book Three Felonies a Day: How the Feds Target the Innocent. A video of this panel moderated by conservative pundit and former prosecutor Tony Blankley is available below, as are other materials referenced in this column.

Drawing on such research and observations of Kerik’s sentencing, I published a column for Harvard’s Nieman Watchdog, “Feds Bullied Kerik Into 4-Year Term, Hurting Us All” in the fall of 2009. Two months later, “Another Look at the Kerik Case” examined the sequence of events leading to a long prison sentence. My criticism was similar to those that Kerik and his attorneys presented in their appeals court filing, which I covered on the progressive opinion site OpEd News, among other places, in a column, "Kerik Appeal Documents Injustice by Judge at Sentencing."

But the appeals court saw things quite differently. They described all of the trial judge’s comments as within his discretion. The distinguished panel included Bush-nominated Republican Judges Joseph M. McLaughlin and Reena Raggi, and Democratic nominee, Guido Calabresi. The latter is a particularly renouned legal scholar credited with helping pioneer the field of Law and Economics and who had been my professor in the most useful course I ever took (based entirely on two of his own books, Tragic Choices and The Cost of Accidents). Without going through all the legal reasoning of the appellate judges available elsewhere in their opinion, let me simply quote their conclusion: “In sum, we conclude that an objective observer viewing the whole record would not question the district court’s impartiality and, accordingly, we identify no ground for resentencing.”

In the face of that kind of bipartisan and unanimous view from an appellate panel so experienced and widely esteemed, it may seem not simply "unobjective" but positively foolhardy to remind any readers here that I had once opined that Kerik’s treatment was unfair. That’s particularly true since virtually the entire New York press corps (with the most notable exceptions of Geraldo Rivera, left, and Andrew Napolitano of Fox News) has long been arrayed against Kerik. Kerik himself admits there are matters both within the indictment and outside of it for which he’s ashamed. By 1988, the future Judge Calabresi had become dean of Yale Law School and kindly agreed to be one of my recommenders for a federal judicial clerkship. So, this column runs the risk of not simply being wrong-headed but conveying an additional (but unintended) element of ingratitude.

For such reasons, I considered letting this particular issue fade away without comment, or at least undertaking a mea culpa on it. In general, admitting error strikes me as a better course than stubborness, especially in complex matters such as these. Readers deserve some kind of follow up. And on reflection, I wouldn’t change the columns. I was there in court, others were not, and there’s still questions to be posed. And if our Project has some useful purpose it cannot be just to defer to others, no matter how eminent. Nietzsche addressed such situations in Thoughts Out of Season, particularly in Part VI of "The Use and Abuse of History." The German philosopher there described how research carries an inevitable risk of error and, what's worse for some, risk of discovering evidence contrary to the researcher's own opinions or other interests.

* * * * *

As many expert researchers have noted, our legal system stacks the deck against defendants once they have been targeted by the criminal justice system, leading to an overwhelming number of guilty pleas even in complicated white-collar cases. Legal rules for the most part prevent defendants from raising in court such common-sense issues as selective prosecution, for example. Defense attorneys and day-to-day beat reporters for newspapers can hardly be expected to do it, especially if a selective prosecution defense remains in effect a legally inadmissible topic. Someone needs to keep asking why it is, really, that Kerik is serving a four-year term in significant part for tax offenses? Especially when arguably similar (or even larger) tax delinquencies were committed by such current office-holders as Treasury Secretary Timothy Geithner, above left, who is in charge of the Internal Revenue Service?

Other examples abound of sanctions for tax avoidance far short of criminal prosecution. Among them recently are Democratic New York Congressman Charles Rangel and former Washington, DC mayor Marion Barry, a current Councilman. Somewhat similar questions arise from Kerik’s convictions for misleading such White House officials as Alberto Gonzales by saying, in essence, that he did not believe he would embarrass the White House if nominated for the cabinet. Upon reflection, was Kerik’s failure to appreciate what might embarrass the Bush White House and future scandal-ridden Attorney General Gonzales, right, a unique offense against government?  Why is Kerik such a rarity in being held accountable for providing a half-truth (or indeed an outright lie) in Washington?

We are likely never to know the answers to such questions at least until Kerik is released from his four-year term. The former best-selling author of a powerful autobiography, The Lost Son, had already drafted most of a new book about his case by the time he reported to prison in May, 2010. But laws prevent inmates from publishing and profiting on such work.

In the meantime, our Project formed to address these larger questions launches later today a three-part series addressing what should be one of the nation’s greatest controversies in public corruption-fighting for the foreseeable future: Why President Obama picked as the next United States Attorney in Alabama the prominent attorney George L. Beck. Although a distinguished attorney, Beck represented the prosecution witness who helped frame former Gov. Don Siegelman, changing the face of the state’s politics for the foreseeable future.

Sample Coverage of Kerik Appellate Ruling

New York Post, Judges Rip appeal bid by Kerik, Bruce Golding, April 1, 2011. An appeals court yesterday upheld crooked ex-Police Commissioner Bernard Kerik's extra-harsh sentence for lying to the White House and cheating on his taxes. The US Second Circuit Court of Appeals in Manhattan rejected Kerik's claim that the judge who slapped him with a four-year prison stretch "took personal offense" at his criticism of prosecutors. "To be sure, the district court noted the irony in Kerik (or his supporters) leveling baseless accusations of corruption against the prosecutors when it was he who had 'used his [official] position for his own personal gain,' " the ruling says.

Wall Street Journal, Kerik’s Prison Sentence Upheld on Appeal. Aaron Rutkoff, March 31, 2011. A federal appeals court upheld the four-year prison sentence given to Bernard Kerik, the former New York Police Department commissioner who served under Mayor Rudy Giuliani. The court ruling on Thursday considered the fairness of Kerik’s treatment by the judge who sentenced him to a prison term longer than the 33-month maximum established under federal sentencing guidelines. Kerik’s lawyers had argued that four-year sentence by Judge Stephen C. Robinson had been unreasonable and showed judicial bias. The three-judge appeals panel found no basis for decreasing the sentence. “In sum, we conclude that an objective observer viewing the whole record would not question the district court’s impartiality and, accordingly, we identify no ground for resentencing,” the judges wrote in the ruling.

Appendix of Justice Integrity Project & Related Columns Cited Above (In reverse chronological order of publication)

OpEd News, Kerik Appeal Documents Injustice By Judge at Sentencing, Andrew Kreig, Oct. 1, 2010.

Nieman Watchdog, Another Look at the Kerik Case, Andrew Kreig, April 7, 2010.

Nieman Watchdog, Feds Bullied Kerik Into 4-Year Term, Hurting Us All, Andrew Kreig, Feb. 19, 2010.

Huffington Post, Why Did Feds Persecute Celebrity Expert Cyril Wecht? Who’s Next? Andrew Kreig, Oct. 7, 2009,

Cato Institute, The Criminalization of (Almost) Everything, Featuring Harvey Silverglate, author of Three Felonies a Day; and Tim Lynch, editor of In the Name of Justice and director of Cato's Project on Criminal Justice. Moderated by Tony Blankley, executive vice president, Edelman, Inc., and columnist, Washington Times, Oct. 1, 2009. Video.

 

Other News

Listed below are selected articles on legal reform, with the most important political, security and media factors. See the full text of these and other articles in the Project's News Reports section by clicking the link.

 

Prosecution pressure forces departure of famed Northwestern University “Innocence Project” researcher:

Daily Northwestern, David Protess to take leave of absence from NU in spring; Protess to launch 'autonomous Innocence Project,' says 'future plans are indefinite,' Brian Rosenthal, March 29, 2011. Two weeks after being told he will not be allowed to teach his Investigative Journalism class in the spring, 29-year Medill Prof. David Protess announced Tuesday he will leave Northwestern for the quarter. Protess, the high-profile director of the Medill Innocence Project, will use personal leave, which he is entitled to as a University professor, to "establish a nonprofit organization devoted to investigative reporting of criminal justice issues," according to a statement.

Openness advocates slammed for their effort to honor President to win access to him in secret ceremony. The multiple dimensions of legal reform advocacy are illustrated by the differing press coverage of the same event last month. The Washington insider tabloid Politico in effect sneered at the President Obama and openness advocates alike for their back-scratching at a secret ceremony. You decide.

Politico, Not a secret anymore: Shh! Obama gets anti-secrecy award, Abby Phillip, March 30, 2011. President Obama finally and quietly accepted his “transparency” award from the open government community this week — in a closed, undisclosed meeting at the White House on Monday. The secret presentation happened almost two weeks after the White House inexplicably postponed the ceremony, which was expected to be open to the press pool.  “I don’t feel moved today to say ‘thank you, Mr. President,’” said Steve Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. But he said he understands the award to be “aspirational,” in recognition of Obama’s potential to do more on the transparency front. “And in that sense, one could say it resembles the award at the Nobel Peace Prize,” Aftergood said. “It’s not because Obama brought peace to anyone but because people hoped he would be a force for good in the world, and maybe that’s the way to understand this award.”

Project on Government Oversight (POGO), Open Government Advocates Meet with POTUS: A Firsthand Account, Danielle Brian, March 29, Updated March 31, 2011. Yesterday afternoon, POGO Executive Director Danielle Brian—along with OMB Watch Executive Director Gary Bass, OpenTheGovernment.org Director Patrice McDermott, National Security Archive Executive Director Tom Blanton, and Reporters Committee for Freedom of the Press Executive Director Lucy Dalglish — met with President Obama about open government issues. The meeting was originally scheduled to occur during Sunshine Week, but was postponed. Here’s Danielle’s account of the meeting.

Washington Post, Where’s the openness, Mr. President? Charles Ornstein and Hagit Limor, March 31, 2011. The day after his inauguration, President Obama promised a new era of “openness in government.” But the reality has not matched the president’s rhetoric. We, presidents of two of the nation’s largest journalism organizations, and many of our thousands of members, have found little openness since Obama took office. If anything, the administration has gone in the opposite direction: imposing restrictions on reporters’ newsgathering that exceed even the constraints put in place by President George W. Bush.

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