Kerik Appeal Documents Injustice By Judge

Former New York City Police Commissioner Bernard Kerik filed papers Sept. 28 arguing that a federal appeals court should vacate his four-year prison sentence because of serious errors and bias by his trial judge. Kerik documented for the Second Circuit Court of Appeals in New York the remarkable judicial bias that prompted our non-partisan Justice Integrity Project earlier this year to cite the Republican’s prosecution as one of our “Leading Cases” of judicial and prosecutorial misconduct nationally.

All three major factors in Kerik’s brief attack U.S. District Judge Stephen C. Robinson, who put Kerik in solitary confinement pre-trial for several weeks until he agreed to plead guilty to corruption charges last November. At sentencing last February, Robinson continued his pre-trial pattern of denouncing the defendant and then sentenced him to a term that exceeded both the plea bargain agreement and federal sentencing guidelines. At right, Kerik is shown just after the sentencing with his wife Hala in a photo by Maxine Susseles. In May, the former Bush cabinet nominee Kerik began serving his term on corruption charges at the federal correctional institute in Cumberland, MD.

Kerik’s first argument in his appeal cited the judge's decision to punish him because a blogger-neighbor of Kerik several times advocated for the defendant pre-trial with blogs that used confidential information. The posts suggested, among other things, that Kerik was being politically prosecuted for tax irregularities similar to those committed by such prominent Democrats as Treasury Secretary Timothy Geithner and U.S. Rep. Charles Rangel (D-NY), but without a criminal treatment. The judge formerly served as the Democratic-appointed U.S. Attorney for Connecticut, and as an assistant U.S. attorney in New York. Kerik’s filing said:

To allow a sentencing court to penalize a defendant for failing to stop others from criticizing the government and from asserting his innocence prior to a plea would violate core First and Fifth amendment protections, including Due Process. And even if these grounds for increasing the sentence had not been improper considerations, the sentence would be unlawful because of a separate procedural error: these unusual factors upon which the judge relied were not discussed in the presentencing materials and the judge prejudicially failed to give the required notice of his intent to rely on them.

Kerik, who had been then-Mayor Rudy Giuliani’s police commissioner during 9/11, further showed how the judge repeatedly cited 9/11 in denouncing the defendant both pre-trial and at sentencing. Yet the judge forbade the defense from mentioning the defendant’s 9/11 work.

The context for the judge’s criticism was his claim that Kerik had unduly profited post-retirement and from wrongdoing in his three decades of public employment. This included Kerik's becoming, even before he became police commissioner in 2000, one of his city’s most honored policemen in history and a city corrections commissioner widely credited with important reforms.

The judge contrasted Kerik’s income to what the judge repeatedly described as his own financial frustrations in his life. At sentencing, the judge reflected:

And, so, what happens as a result is you look at your own life and you see the relatively meager circumstances. Your house is a lot smaller. You don’t drive as nice a car. You don’t get to go to Aspen in the winter and Cabo in the summer, and your friends do.

Kerik’s brief further quoted the judge as complaining at Kerik’s sentencing about the judge’s own life in these ways:

You look at your friends and say, when you want to go off to Mexico for vacation, “You get to jet off, but I don’t. And you live in a big house, and I don’t.”

Robinson, below, resigned from the bench to begin work this summer as a partner for Skadden Arps, Kerik’s brief noted. Trade publications report that average Skadden partner compensation is $2.1 million.  “Under the circumstances,” Kerik’s brief argued, “the sentencing judge’s comments form a backdrop against which the need for resentencing is all the more starkly visible.”

Nieman Watchdog, the Harvard University newsletter-website primarily for journalists, published the Justice Integrity Project’s on-the-scene courthouse report of Robinson’s shocking conduct at Kerik's sentencing in, “Feds Bullied Kerik Into 4-Year Term, Hurting Us All.”

In “Another Look At The Kerik Case,” we followed up two months later with additional revelations about how the judge and prosecutors had unfairly pressured Kerik into his federal guilty plea. Among the factors were the judge’s secret pre-trial decision to restrict testimony by a defense witness on the grounds that it might prejudice jurors against the prosecution. Another factor was the judge’s threat to remove Kerik’s lawyers shortly before trial, along with the judge's repeated suggestion for Kerik instead to use a friend of the judge’s as counsel. These actions were all part of Kerik's filing, prepared by the law firm Mayer Brown.

In general, conventional wisdom in the news media is anti-Kerik. Many news reports originating with authorities described long-running investigations that a city contractor with suspected mob ties renovated Kerik's coop in 1999 at below-market cost. Kerik's reputation was tarnished also by an affair with Judith Regan, the editor/publisher of his best-seller The Lost Son, and because of controversies surrounding his mentor Giuliani. The latter became more important politically when the former mayor prepared in 2007 for a presidential run the next year.

Kerik pleaded guilty to state misdemeanor ethics charges and received a hefty fine. But federal authorities took the unusual step of using the state charges as a foundation in 2007 for related tax and other false statement charges. An example of the latter was his comment to then-White House Counsel Alberto Gonzales that the Bush administration wouldn’t be embarrassed if he joined the cabinet as Homeland Security secretary. With this background, Kerik’s state and federal guilty pleas were proof positive for most that he was a phony and corrupt all along. 

But a loyal group of supporters across the country has noted flaws in each of those guilty pleas and the mob rumors.  They've created the kind of signage at right and have eagerly awaited this week’s appeal arguments and better news coverage. For example, authorities themselves refuted the mob rumors, as our project noted earlier this year. But refutation of years of leaks by law enforcers was only after Kerik pleaded guilty, and then only in a footnote in the prosecution sentencing memo.

Among the mainstream media, Fox News (via Gerald Rivera) and Newsmax have been rare in pointing out unfairness in the prosecution and sentencing. In 2008, Vanity Fair published a brief item “Bernie Kerik: Betrayed by Joe” suggesting that Kerik’s guilty plea to state charges was compromised because his then-attorney Joe Tacopina encouraged the plea at a time the lawyer knew his own business arrangements with the Follieri Group were under investigation. The magazine’s star crime reporter, John Connolly, researched a much more in-depth piece this year, contacting the Justice Integrity Project among others in the process. But the magazine has not published any additional findings.

USA Today published an important series beginning Sept. 23 showing 201 federal cases since 1997 where judges have found law-breaking or other serious misconduct by overzealous prosecutors. This represents a major breakthrough in the mainstream media’s willingness to probe systematic abuses by prosecutors in dubious cases across the country. Here is the first installment, including a unique regional chart:

        FULL COVERAGE: Federal prosecutors series
VIDEO: Wrongfully jailed man: 'It can happen to you'
EXPLORE CASES: Investigate the misconduct cases we identified
JUSTICE DEPARTMENT: Prosecutors must brush up on duties
CLOSER LOOK: Prosecutor misconduct can take many forms

The newspaper series, however, does not focus on cases such as Kerik’s where a judge’s own conduct is a fundamental part of the allegations of serious misconduct or unfairness.

Our project investigates judges as well as prosecutors. So, we reached out to then-judge Robinson for comment on our findings earlier this year.  He declined to speak but generously gave permission to use his photo.  Federal prosecutors also declined comment, but via a spokesman provided links to their filings. Here is their sentencing memo.

Virtually unreported so far by anyone is a Second Circuit rebuke last October of the judge for excessive secrecy in pre-trial decision-making leading to Kerik’s guilty plea the next month.

Strangely, Robinson didn’t respond by trying to treat the defendant more fairly. Instead, he in effect thumbed his nose both at the appeals court and defendant this way: First, he personally called the jail physician where Kerik was being held pre-trial in solitary confinement and obtained the defendant’s mental health records. Then the judge announced his interpretation of the results pre-trial in court, with the predictable result that some would publish articles suggesting the defendant was having mysterious mental difficulties before trial.

The stage is now set to see what the Second Circuit, the nation’s most prestigious appeals court, has to say about a formal pleading summarizing the kinds of irregularities that are undermining public confidence in the nation’s justice system. Stay tuned.

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