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:

[more of] Roberts in the Middle: The Chief Justice as Moderate (Part 2--In the Majority)

Clearly, some were very upset with Chief Justice Roberts' deciding vote to uphold Obamacare.
[The photo on the left is from Republic Magazine: The Voice of the Patriot Movement. See "John Roberts, Constitutional Traitor: Chief Justice Approves Obamacare Tax Mandate," June 28, 2012.]

As noted in the last post, the Obamacare case was not the first one in which Roberts departed from the other conservative Justices on his Court. In some cases he actually sided with the liberals. In some, he voted with the conservatives, but adopted a less hard-line position. In some, he endorsed a middle ground which literally split the difference between the Court's two ideological wings.

More than that, some of these cases were ideologically significant and politically charged. The Chief Justice's vote and position in each of them was less conservative than that of the most conservative Justices. And collectively, his votes and positions evinced more moderation--at least in these cases--than either the conservative or liberal poles of his Court.

Let's look at a few examples. Let's start with some cases in which Roberts was part of the majority.

Arizona's Immigration Law

Three of the Court's conservative Justices--Scalia, Thomas, and Alito--voted to uphold all (or in Alito's case, most) of the provisions of the Arizona law. According to them, the additional restrictions and criminal penalties imposed on illegal immigrants were within the power of the states to police activities within their borders.
The liberal Justices (together with Justice Kennedy) voted to invalidate every challenged provision of the law, but one. They argued that federal immigration law comprehensively regulated the treatment of illegal immigrants and, therefore, preempted any state interference.
Roberts joined the liberals, plus Kennedy, thereby giving them a majority. (Arizona v. U.S., 2012 [the same week as the Obamacare decision].)

Worker Anti-Retaliation Protection

The Court's most conservative Justices--Scalia and Thomas--voted to dismiss a claim of retaliatory discharge brought by a worker who was fired after he complained that employees were being shortchanged on work-time. The two argued that the Fair Labor Standards Act only protected workers who filed formal complaints, either with a government agency or in court.

The liberal Justices (as well as Kennedy and Alito) took the position that oral complaints sufficed. That a worker's person-to-person complaints to his supervisor and to company managers were adequate to trigger the law's protections against retaliation.

Roberts joined the Court's 4 liberals, plus Kennedy and Alito, in rejecting the view of Scalia and Thomas. (Kasten v. Saint-Gobain, 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.

Supreme Court: Highlights...(Part 9--Even More Criminal Law: "Honest Services" and Guns)

   The remaining 2 cases included within the "Top Ten" highlights of the Court's last term are a bit different than the first 3 previously discussed. These 2 cases do not deal with street crime, violent crime, crime typically committed by undesirables or in parts of town that they have made undesirable, crime that strikes fear in the citizenry and stokes calls for government-sanctioned violence in return. These are not cases about crimes that evoke the usual law-and-order versus rights-of-the-accused divide.

No, "honest services" fraud and owning firearms do not fall easily within the same class as those other crimes. "Honest services" fraud, a white collar crime, is more likely to have been committed by a "respectable" member of the community as by a "common" thug. And owning guns for self or home defense or for hunting, even if in violation of some state or local regulation, is just as likely to be engaged in by an otherwise law-abiding neighbor as by a violent miscreant.

No, these crimes are different. They evoke different reactions, politically, ideologically, emotionally. And they do so for the Justices as well as for most everyone else.