Political Witchhunt: Update-Why Joe Bruno Will Be Exonerated

Those liberals, reformers, good-government types, New York Times editorial writers and Albany Times Union reporters who were toasting the conviction of long time New York Republican Senate Leader Joe Bruno, will soon have the smile wiped from their elitist faces. Joe Bruno has committed no crime and his exoneration will likely come from the U.S. Supreme Court.

I speak from the point of view of an attorney with a passion for the protections of the law.

In 1770, a rowdy mob of Massachusetts colonists accosted and provoked British soldiers until they responded with lethal force and committed the Boston Massacre. The soldiers were arrested and placed on trial where their convictions seemed imminent out of sheer populace outrage. One bold lawyer rose in their defense, John Adams, who in his closing argument reminded the jurors that “the law no passion can disturb. Tis void of desire and fear, lust and anger . . . it is deaf, deaf as an adder to the clamours of the populace.”

Today the populace is clamoring at Joe Bruno. They protested – protested! – His recent defense fund fundraisers, and blogs, abound with smug joy at the Senator’s conviction. Meanwhile, the facts and flaws of the case have disappeared into the ruckus. Nary a soul concerns itself with the serious constitutional misgivings of a law that has floundered through the federal circuit courts because no knows what it means. Consider the helpless inquisition of Judge Jacobs in the Rybicki case, now Chief Judge of the Second Circuit – the same federal circuit hearing the Bruno case:

How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?

Or consider Supreme Court Justice Antonin Scalia who says that “it is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”

Joe Bruno’s case abounds with the consequences of these concerns. According to the prosecution, the crime revolves around the purity of one’s motive behind the act in question, and robbing the public of the ability to fully assess a legislator’s motives constitutes, on some imaginary planet, fraud. Meanwhile, the jury decided that some of Senator Bruno’s consulting fees were unearned and therefore amounted to gifts, which we then are permitted to assume were given in return for legislative favors. And then came the jury instructions. The judge instructed that a conviction need not require the finding of an actual conflict of interest; a finding of its mere appearance would suffice. In other words, if he looks guilty, he is guilty. This is shocking.

And it is happening because the statute is constitutionally flawed. It violates due process of law for failure to give adequate notice of that conduct the law is rendering criminal. The absence of notice invites legal invention. No one knows what the test for honesty is, and even worse fraudulent intent is not even required. Even if the senator did not act out of self-interest, but only created its ethereal appearance, however happenstance, the rest of the crime can somehow just be presumed as a legal inference and the need for actual proof is dismissed.

It’s no wonder the law consumes almost one-fourth of the Supreme Court’s current docket. The law clearly needs tinkering, if not a swift death. If Antonin Scalia is telling us that the rights of a criminal defendant are being violated, which occurs only cosmically, it’s a clear sign that there is a constitutional flaw at work because Justice Scalia normally has little patience for due process to begin with. If even he finds it unfair, we should all take note.

So protesting Senator Bruno’s well-attended fundraiser rises to the absurd in light of the valid legal ground upon which the Senator stands. If Joe Bruno is being prosecuted under an unconstitutional law, no matter how guilty one might think he is, he must be exonerated. Protesting his right to defend himself offends justice, especially when this case has only really just begun.

Contrary to public belief Bruno is not a wealthy man. He has resigned from his job to fight to clear his name. This prosecution will cost Bruno $3 million or more in legal fees, threatening to ruin him financially. The first trial was a foreordained exercise and why the Judge, who was clearly biased, did not dismiss or delay the case on any number of respectable legal grounds, is especially confounding given the high court’s assumption of the matter.

In all probability, the Court may require the finding of the commission of an underlying state crime upon which to base a federal honest services prosecution. Attorney General Cuomo has found no such crime in Joe Bruno’s case. Therefore, let the histrionic din die down and allow the Joe Bruno his full constitutional protections.