2nd Circuit Decision in Bruno Case: Shameful

(The Saratoga meet has now passed midpoint. Princess of Sylmar, Palace Malice, Cross Traffic, Wise Dan, etc. As good as it gets!

But now, from the glorious to the ignominious....)

Yes, shameful and ignominious.
That's seems a fair characterization of the 2nd Circuit's decision in the Bruno case earlier this month.
According to that court: no double jeopardy problem; none in the slightest
(For those unfamiliar, the 2nd Circuit is the federal appeals court that reviews federal trial decisions from Connecticut, New York, and Vermont. Also, a summary of the Bruno case is set forth at the end of this post, as is a link to my interview on the subject last week on Live at the Capitol with Fred Dicker.)

This was a major double jeopardy appeal, decided in 4 paragraphs.
Actually, only 3 paragraphs addressed the merits; 1 recapped the facts.
And those 3 paragraphs? Extremely thin on substance and analysis.
A student who submitted something like this in my criminal procedure class would get a C-.
It's what you might expect from a 1st year law student in his 1st semester of legal writing.

Harsh?
Yes.
But the Bruno appeal presented a fundamental constitutional question about the 5th Amendment right against double jeopardy.
More than that, double jeopardy is a difficult, complex, and currently very confused area of the law.
Attempting to unravel it takes more than 3 brusque, dismissive paragraphs.
But that's all the 2nd Circuit apparently thought it was worth.

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:

Albany Misc: Legis-Scandals, Double-Jeoparding Bruno, & Court Pick Abdus-Salaam (Part 1: the recent arrests)

Three items: 2 loathsome and 1 welcome. A few brief comments on each.

1st, the federal investigations and arrests of New York legislators for corruption. These include the arrest several days ago of Malcolm Smith, a leading Democratic state senator. He allegedly bribed some influential New York City Republicans to help him secure that party's nomination to run for mayor.

The headlines [with links to the articles] tell the stories. Yes, reality is more outlandish and outrageous than fiction:

Lawmakers in New York Tied to Bribery Plot in Mayor Race, by Michael Wilson and William  K. Rashbaum, NY Times, April 2, 2013.
State Sen. Malcolm Smith, city Councilman Halloran arrested in 'bribery plot' to rig mayor race, by Josh Margolin, Lorena Mongelli and Erin Calabrese, NY Post, April 2, 2013.
Malcolm Smith arrested in FBI bribery probe, by Jimmy Vielkind, Albany Times Union [Capitol Confidential], April 2, 2013.
Bharara: Smith bribery case is like ‘Groundhog Day,’ by Casey Seiler, Albany Times Union [Capitol Confidential], April 2, 2013.
One Assemblyman charged, another to resign, by Casey Seiler, Albany Times Union [Capitol Confidential], April 4, 2013.

My own reaction? Primarily, it's the response I gave when asked to compare corrupt politicians to street criminals:

"The drug dealer knows exactly what he is," Bonventre said, "and doesn't try to convince himself or anyone else that he's any better." (Trading information for leniency, by Casey Seiler, Albany Times Union, April 4, 2013.)

Anyone who has observed some of those characters who, whether in Albany or Washington or other center of government, strut the halls of power with a self-satisfied over-inflated view of themselves, is never too shocked when these "public servants" turn out to be much less than they're supposed to be. Yes, Gramps, the world is a fake.

Yes, I've met and worked with many exceptional individuals in government--in the judicial and executive branches, as well as the legislative. Extremely capable, conscientious, dedicated, ethical. Knowing them and working with them has been a great source of pride.

But as anyone who has studied government or worked in it is well aware, more than a little of it and more than a few who hold high office and power in it are indeed "a fake," as my Grandfather would say. So the alleged criminal activity may be outrageous, deplorable, despicable. But not necessarily surprising.

2nd, speaking of outrageous, deplorable, despicable--at least in my view and that of a growing chorus of lawyers--is the ongoing effort of federal prosecutors to re-prosecute former State Senator Joe Bruno.
We'll address that in the next post. But meantime....

For those who are interested, here's the link to my interview last week on Fred Dicker: Live from the State Capitol! 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.]

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.