Monday, November 28, 2011

Double Jeopardy, Joe Bruno, and Basic Criminal Justice

Imagine the government was prosecuting you a second time after failing in its first try.

That's right. The government prosecuted you for a crime it claimed you committed. The government failed. Then the government wants to prosecute you again, hoping to get it right the second time around.

No they can't, you might think. Wouldn't that be double jeopardy?

Well, it might be. But there are exceptions. And the exceptions--adopted by the Supreme Court over the years--may be swallowing virtually all the double jeopardy protection the Constitution is supposed to guarantee.

I'm confident that this will be surprising. In fact, I'm confident that it will be shocking and even appalling to most Americans who care about such things.

So, let's take a closer look. Let's do so based upon a real case. One that is currently in the courts. It's the case against Joe Bruno, the former New York State Senator and Republican Majority Leader. But imagine that it's you the prosecutors are after.

First, imagine that the government prosecutes you and obtains a guilty verdict. But what the government proved is not even a crime, so the conviction is overturned. Now the prosecutors want to try again.
Double jeopardy? Well maybe, but there are exceptions.

Imagine further that it's the same sovereign that wants to prosecute you again. The very same government. It's not the state government that wants to prosecute you under its state law after the federal government failed under federal law--or after a different state government failed under its law. No, it's the federal government wanting a second shot at you after the federal government itself failed the first time.
Double jeopardy? Well, that may be the general rule, but there are exceptions.

Imagine additionally that the prosecutors want to try again under the same law. They want a second chance to prove that you really did violate that law. Not a different criminal statute. The exact same statute the prosecutors failed the first time to prove you violated.
Let's be clear. The prosecutors thought they succeeded in the first trial to prove you committed the crime prohibited by that law. But they didn't. That's why the conviction was overturned. Now they want to try again--yes, try again to prove that you committed the crime prohibited by that same law.
Double jeopardy? Well, generally, but there are exceptions.

Imagine even further that the prosecutors want to prosecute you again for the same conduct. They tried the first time to prove that your conduct violated the law. But they failed. They want to try again. Not on the basis of any new or additional or different conduct. Not on the basis of any conduct they didn't know about in the first trial. No. They want a second chance to do what they didn't do the first time: show that the very same conduct violated the very same criminal law.
Double jeopardy? Well, maybe, but there are exceptions.

Imagine even more than that. The prosecutors want to try again with the same evidence. The same information. They want a second chance to show that the very same evidence proves you did do something that amounts to a crime. Something they failed to do the first time. Again, that's why the conviction was overturned. But the prosecutors want another shot at it--i.e., another shot at you.
Double jeopardy? Well, that may be the general rule, but there are exceptions.

There's more.

Imagine that, in addition to everything else, it was the prosecutors' fault that they failed to prove you committed a crime the first time. You and your lawyer didn't do anything wrong or tricky to cause the prosecutors' failure. No. You and your lawyer simply explained correctly that what the prosecutors were trying to prove was not a crime. The prosecutors insisted it was. This would make their job easier. Yes, easier but wrong. So the prosecutors proved something that is not a crime, and the conviction they obtained was reversed for that reason. Now they want a second chance--this time to prove something that is a crime.
Double jeopardy? Well, maybe, but there are exceptions.

One more thing.

Imagine that the prosecutors forced an appeal, even though it was clear that your conviction was invalid. It was clear because the Supreme Court, in a relevant decision well before your appeal, ruled that a conviction like yours was not based on an actual crime. Your conviction was no good, everyone familiar with the Supreme Court's decision knew it. But the prosecutors still made you appeal--and made you spend a fortune in lawyers' expenses and in time and anxiety--to get that conviction overturned. And now they want to prosecute you again.
Double jeopardy? Well, maybe, know.

What about decent? or fair? or just? Well, I'll go out on a limb. This would be deplorably unjust.

Now imagine that this is not imagination at all. No, it's not imagination in the case of former New York State Senator Joe Bruno. He was convicted in federal court of 2 counts of violating the so-called "Honest Services Law"--but for something (i.e., concealing a possible conflict of interest) that is not a crime. He and his lawyer said it was not a crime. And it was absolutely no surprise, not to anyone who follows criminal law, when the Supreme Court ruled that, indeed, there was no such crime under the Honest Services Law.
(For a discussion of the Court's decision in Skilling v. U.S., see Supreme Court: Highlights...(Part 9--Even More Criminal Law: "Honest Services" and Guns), Jan. 6, 2011.)

The prosecutors made Joe Bruno appeal anyway. Then, at the appeal, they acknowledged what everyone knew--that what they had proven was not a crime, and that the 2 count conviction had to be overturned. But then they asked for, and were granted, a do over. Yes, the prosecutors were allowed a do over. Why?

The legalistic reason is that the evidence presented by the prosecutors at trial was legally sufficient to allow some rational jury to find that Joe Bruno did engage in some conduct that actually is a crime under the Honest Services Law (i.e., bribery or kickback). In other words, it's possible that a rational jury would listen to the evidence and conclude that Joe Bruno is guilty of an actual crime. Not that the evidence necessarily proves bribery or kickback. But that some rational people--in fact, any rational person--could think so. It wouldn't be totally irrational. Yes, that's the meager legal test.

What's the other reason for the appeals court (the U.S. Court of Appeals for the Second Circuit, which sits in Manhattan) to permit a do over? Well, that's the reality of the current federal--i.e., the Supreme Court's--double jeopardy jurisprudence. It's confusing, contradictory, convoluted, and utterly unprotective. The Supreme Court's decisions are bewildering, and they render double jeopardy protection full of holes. Under the current state of the law, there are more exceptions than substance to the constitutional guarantee.

The federal appeals court is not necessarily wrong as a legal matter to allow a do over. Not under current Supreme Court decisional law. But it might be. It's hard to be sure.

On the other hand, whether this is just fundamentally unfair? Criminal injustice to the Nth degree? Shouldn't be permitted? That's not such a tough one to answer--not for me.

But let's recap to be sure. To erase any doubt. The inequities. A simple outline of what we've just discussed:
  • not even a crime
  • the same sovereign
  • the same law
  • the same conduct
  • the same evidence
  • the prosecutors' fault
  • the prosecutors forced an appeal
  • the prosecutors get a do over
Imagine that. Imagine that's what happened to you. You'd wonder what ever happened to the constitutional protection against double jeopardy. And even if you knew nothing about constitutional law or the Supreme Court's decisions, you'd wonder how this could possibly be fair, be just, be allowed in our system with it's guarantee of basic due process.

You'd be right to wonder. I'd certainly wonder. And we should be wondering about the very same thing in Joe Bruno's case.

Whatever else we might think about powerful politicians and about corruption and self-aggrandizement in our politics, what about our most basic criminal justice protections? Like the underlying spirit and principles of the Constitution's prohibition against double jeopardy? Wouldn't we think that those protections and principles were being violated if the government treated us like it's treating Joe Bruno? I have absolutely no doubt that we would. I have no doubt that we'd be shocked and appalled that this could be permitted.

We should be no less shocked and appalled that the prosecutors could be permitted to treat Joe Bruno this way.