Last month, a federal district court judge in Albany, New York ruled that the eight year old prosecution of former New York State Senator Joe Bruno can proceed to trial in February of next year. Because the statute under which he has been indicted and convicted was invalidated by the Supreme Court, because the charges against him had essentially been dismissed by a federal appeals court, and because the U.S. Attorney’s office that prosecuted him filed new charges that it had formerly abandoned because it told a federal judge that it lacked the evidence, this is a disturbing turn of events and one that should trouble all Americans who believe in the rule of law.
The rule of law is a 600 year old principle to which all Anglo-American law has been subject. It mandates that no one is above the law (all must follow it) and no one is below the law (all are entitled to its protections). Practically, it means that the government must follow the Constitution and the laws it is charged with enforcing, even if it does not obtain the result it wants.
In December 2009, Joe Bruno was convicted by a federal district court in Albany of a violation of the federal “honest services” statute. The essence of the jury verdict was that by not telling the State of New York--his employer in his capacity as a sitting state senator--that he was also employed elsewhere, he had denied the State of New York his undivided or honest services. In 2010, the U.S. Supreme Court invalidated that statute and ruled unanimously that the failure of an employee to tell one employer of the existence of other employment without any palpable harm to the first employer cannot be a crime in America. As a result of that ruling, the U.S. Court of Appeals for the Second Circuit--the federal appellate court with jurisdiction in the State of New York--threw out Sen. Bruno’s conviction.
The conviction was thrown out because the Supreme Court ruling that invalidated the honest services statute held that the essence of crime is harm, and the government not only did not prove harm, it didn’t even allege it. In fact, federal prosecutors six times told the jury that convicted Sen. Bruno that they had no evidence of any bribes or bribe-driven behavior, and that the essence of the charge against the Senator was the failure to reveal to the State the existence of his other employer.
Stung by this ruling and heavily invested in trying to convict this 83 year old now retired public servant, the feds re-indicted him for a crime they had previously declared that he did not commit--bribery. Inexplicably, in that new indictment they also accused him yet again of violating the honest services statute, a law now invalidated by the Supreme Court. The bribery charge is based upon the same factual allegations which the feds had declared in 2009 did not constitute bribery.
Can the feds do this? Can they change the theory of their case after they have lost it? Can they lawfully prosecute Sen. Bruno for a crime for which they could have prosecuted him in the past, but declined to do so? In a word--NO.
The whole purpose of the Constitution is to compel the government to respect personal freedom. That means that the government must obey its own laws even when that obedience does not produce the result the government wants. Among the constitutional protections that the feds have violated is the prohibition against double jeopardy. Simply stated, the Constitution prohibits repeated attempts to convict the same person for the same charge or for a charge once abandoned by the government or a new charge based on the same behavior as previously charged.
The reason for this prohibition is to prevent the government in America from doing what British kings had done to their political opponents in England when we were colonists--continually try them for the same or similar crimes until they got a conviction. Egypt’s newly minted dictator, Muhammad Morsi, has just ordered that his predecessor, Hosni Mubarak, be re-tried for murder, even though a jury acquitted him a few months ago. Is that what we want here?
If the government can violate a principle as fundamental and universally accepted as the prohibition on double jeopardy, and do so in plain sight, and do so to a public figure like Joe Bruno, there is no limit to what it can do. And that will spawn many more miscarriages of justice.