The Do-Over vs. Bruno [Part 2 of Albany Misc: Legis-Scandals, Double-Jeoparding Bruno, & Court Pick Abdus-Salaam]

We've discussed this before.
(See Double Jeopardy, Joe Bruno, and Basic Criminal Justice, Nov. 28, 2011.)

In a nutshell:

Federal prosecutors convicted former state Senator Joe Bruno for conduct that was not a crime. The convictions were naturally overturned on appeal. Now the federal prosecutors are trying again, hoping to get it right the second time around.

Double jeopardy anyone?

At this point, the federal prosecutors--i.e., the U.S. Attorney's office for the Northern District of New York, which covers Albany--have already recharged and re-indicted Bruno. The 2nd Circuit Court of Appeals, the federal appeals court that covers New York State, is now considering whether re-prosecuting Bruno is unconstitutional. Does a second attempted prosecution violate the Constitution's ban against double jeopardy?

It certainly seems to me that it does. Or that it ought to.
(Others are seeing it that way as well. See e.g., The Persecution of Joseph Bruno, by Richard A. Epstein, April 2, 2013.)

Let's remember a few aspects of this case against Joe Bruno:

The federal prosecutors obtained convictions for conduct that was not even a crime.

They prosecuted Bruno for that non-criminal conduct because that was easier than prosecuting him for conduct that was criminal.

The Supreme Court was unanimous that the conduct for which Bruno was prosecuted and convicted was not a crime--i.e., not a single Justice, liberal or conservative, Democrat or Republican, thought that sort of conduct violated the law.

That ruling was no surprise at all to anyone who follows the Supreme Court, and it should not have been to the federal prosecutors in the Bruno case.

This is not a case where a state has prosecuted someone under its law, and then the federal government prosecutes under its own different law.

No, this is the same government--the federal--re-prosecuting Bruno.

It's re-prosecuting him under the very same so-called "honest services" law.

And, worse than that, it's re-prosecuting him for the very same conduct.

It's re-prosecuting under the same facts, with the same evidence.

And this re-prosecution is the federal prosecutors' own fault--no one else's--because they could have tried to convict Bruno for something that actually is a crime the 1st time around, but, instead, they made a deliberate choice not to do so.

So how can the federal prosecutors possibly think that they can get away with a re-prosecution?

Because the Supreme Court's double jeopardy case law is rotten. A complete mess. Thoroughly confusing and confused. And it hardly insures the kind of protection against government abuse that the 5th Amendment was intended to provide.

A harsh assessment? Yes. And the Justices themselves have acknowledged much the same.

But specifically, how do the federal prosecutors think that they can get away with a do-over in the Bruno case?

Ahhhh, you see, they think that prosecuting Bruno under a different theory is ok. Under the very same "honest services" law, yes. But under a different view of how his conduct violated that law.

So, you see, they think that they should be allowed to get a second shot at Bruno, proving that the very same conduct violated that very same law, as long as they present the same facts and evidence from a different angle.

The 5th Amendment says that "no person shall be subject for the same offence to be twice out in jeopardy." Hmm, "same offence?" That's the issue.

The 1st time around, the federal prosecutors insisted that they only had to prove that Bruno concealed conflicts of interest. They insisted that they did not have to prove that he participated in any bribery or kickback. BUT...as virtually every Supreme Court observer expected, the Justices ruled exactly the opposite. And, remember, they did so unanimously!

(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.)

Accordingly, the 2nd Circuit federal appeals court then threw out the "concealed conflicts" convictions against Bruno. But, unfortunately, the 2nd Circuit did not make a final decision on whether the federal prosecutors could try again.

Sooooo, the federal prosecutors, stung by the Supreme Court's 9-0 rebuke of their theory--and presumably and deservedly, mortified as well--decided to re-prosecute Bruno under a different theory. This time under the theory of bribery.

[And I don't mean to beat a dead horse--ok, I do--but they could have prosecuted Bruno for this the 1st time. But they chose not to and they argued that they didn't have to. In short, all of this re-prosecution is entirely the federal prosecutors' fault. And they think they should be allowed a do-over?)

Now suppose they fail under this 2nd theory of bribery. Do the federal prosecutors get a 3rd shot under a 3rd theory?

No, of course not, you might say. Not a 3rd try. But the double jeopardy protection doesn't allow a 2nd try either! The prohibition is against being "subject for the same offence...twice!" Not thrice!

So the question is whether re-prosecution under a different theory or view or angle of the same law is re-prosecution "for the same offence!" Period. A second prosecution for the same offense.

Is it a different offense--not the same one--each time the prosecution has a different theory?

The exact same conduct. Same facts. Same evidence. Same law. Just a different theory?

That's not double jeopardy? That's not an unconstitutional re-prosecution? That's not making someone "subject for the same offence...twice?"

To be sure, who really can tell whether it is or not under the Supreme Court's current case law. But shouldn't it be?

Shouldn't it be clear that such re-prosecution is terribly unjust? That such re-prosecution is the very sort of government oppression and harassment and, yes, persecution that the double jeopardy protection was intended to prevent?

Well, a growing chorus of those following the Bruno case are protesting "Yes, it is!" Some find it utterly reprehensible that the federal prosecutors are doing this. I surely do.

Hopefully, the 2nd Circuit and, if need be, the Supreme Court will clarify double jeopardy case law. Will say that such re-prosecution does violate fundamental constitutional protections. And will put an end to this outrageous prosecutorial abuse.

[Some of this was discussed in my interview last week on Fred Dicker: Live from the State Capitol! As I noted in the previous post, Mr. Dicker questioned me on all 3 items in the title--and more:
http://www.talk1300.com/CMT/podcast/FREDPODCASTAPRIL082013.mp3.  Interview begins at 29:25.]

In the next and last post in this series, we'll look at Governor Andrew Cuomo's 2nd nominee to New York's highest court, Justice Abdus-Salaam, and preview the forthcoming Senate Judiciary Committee's hearings.