Political Witchhunt: Update-Why Joe Bruno Will Be Exonerated
by Barry SchiffmanThose 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.
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41 Comments
Mr. Schiffman,
That was an excellent, thought provoking article.
"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?"
I'd sure hate to throw a monkey wrench into the gears of the legal machinery, but your article begs one question to be asked. All things being equal, how then coulod you apply this same argument to the detainees at Gitmo? Apply that same article to Khalid Shiek Muhammed.
"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.”
Does this infer that we get to see the good Shiek go clear to the Supreme Court?……………
Crooked, activist Judges? In America? Say it ain't so! Incidentally, this is why the Bible tells us to be careful NOT to be brought before the judge.
The Mao-Tse-Bama has stated that the Constitution is a racist, biggoted document full of negative liberties that needs to be eradicated. He intends to appoint judges that will decide cases upon "empathy" for the underprivileged (take sides) rather than the equal justice rule of law. I guess this means we have become a notion men, not of law. After all, he threatended to CHANGE and remake America into his image.
Huge difference. KSM admitted his guilt for starters. Secondly, there was ample notice available to KSM that his act was a criminal offense. Apples and oranges.
So now a person can be convicted for …what was that? Thinking? Watch out for the thought police!!! This is getting more ridiculous every day!!!
I hear you, and I tend to agree with you.
With that being duly noted, you and I, and everyone else here knows that in short order, some slime ball, douche bag lawyer will turn if from apples and oranges, into all apples, and use the exact same argument I cited above.
"If it doesn't fit, you must acquit".
Does that ring a bell?
Let's put it this way: I won't be a bit surprised no matter what the outcome of the KSM trial is.
It sounds like you are arguing the technicalities of the case and not weather the man is dirty or not.
All people should have fair and equal treatment under the law, I am not arguing against that, but from what I have read the guy does not appear to have clean hands if even 1/8 of what they say about the case is true then he is the type of republican that I loathe.
So if by witch hunt you mean applied to a republican while bypassing similar corruption on the left then I would have to agree, and acknowledge that it happens all the time and that it should not. That's as far as I am willing to go, I won't play the D/R knee jerk reaction game anymore.
These guys have no honor…
Doesn't matter. If he didn't break the law, he didn't break the law. That's not a technicality. Doing something unethical is not the same as doing something illegal.
The law is supposed to punish the act, not the motivation. Any flatfoot cop can tell you that motive alone is not proof of a crime. The law is being turned on it's head. If we cannot depend on the Law, can anarchy be far off?
Correct. Which is why Kalid Sheik Mohammed KSM would be acquitted in a fair USA trial. He admitted to killing 3000 people. But he was still arrested extra-judiciously, not read his rights, and the POTUS promised his conviction, thus tainting every jury pool. If we gave him a jury of his peers, he'd be lauded. Additionally, there was illegal wiretapping, and he was trying to defend his own life, with the war going on.
It only takes one juror afraid of his very real threat to kill them to get him off… and the Judge in charge is sure to be hardpressed to grant the suspect the right for periodic prayer breaks. And what of the defense lawyers who will be made millionaires by the trial regardless of outcome?
Really, his trial belongs in military tribunals. Saddam Hussein would also have been "innocent" of the tortures and murders and rapes in a normal court for the same reasons. That's why the law allows for special courts in these circumstances… to allow for cases like this.
To treat this like a traffic offense would diminish both the case and the court system itself. To "guarantee" a conviction beforehand is wrong on many levels… There's no point in a trial.
I think I would "get" that it's wise to watch one's legal P's and Q's, even if there were no Bible.
He did do something illegal according to the verdict delivered by a jury of his peers. The author appears to be arguing that the law he was convicted under is in summary flawed by being too broad and without definition, and therefore unconstitutional, which are "technicalities" the word does not apply any sense of good or evil nor does it determine if he really is a typical political dirt bag or not.
I am not privy to all the evidence presented against him, but it does appear that he was selling his influence, something most politicians do on a regular basis, and that it is illegal, it's just that the men who write these laws to be too broad are the same ones that break them, what a coincidence.
As I said, it is NOT fair to convict someone on a law that cannot be interpreted prior to a conviction, and he probably will win at the SCOTUS, that doesn’t mean he's anyone that I am going to get all worked up over unless the charges are completely bogus.
"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."
… You think this doesn't happen already? Hopefully, he being a Senator will bring this type of abuse of law to light and prevent it in the future.
"If Joe Bruno is being prosecuted under an unconstitutional law, no matter how guilty one might think he is, he must be exonerated."
… Good Luck! Unconstitutional Laws are ALL OVER THE PLACE and nobody gets exonerated because of it. Look at all the Gun Prohibition laws… and especially all the crap our recent and current administrations are establishing as law! Patriot Act… unconstitutional! Taking people's handguns in an State of Emergency… unconstitutional! Our great Fed does what it wants, when it wants. Constitution doesn't mean anything to them!
i agree with you but from what i gather from reading this to paraphrase
if he looks guilty he is
i could name a number of people i would like to see behind bars
just because i think they are guilty
Wow, what a kangaroo court!–"if he looks guilty, he is guilty"
There is no secret here Joe is getting paid back.When Spitzer had the state police after Joe he tought Elliot a little lesson and brought him down by exposing his well known penchant for hookers. the rest is history
It's starting to feel like anarchy already…criminals in the White House…!
That's the spin of the author anyway.
I dont think it's quite that simple though. We will see
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So lets see … $20,000 a month in payments for ten years from a business to a politician – how on Earth can this NOT be illegal? It's not as if ex-boxer Joe Bruno has ever been known to be a very bright man and he is an obvious candidate for prosecution in NYS. Confucious say … too many people with heads in sand cause a sky full of asses … that would be our legal system, judges, prosecutors and defense lawyers. Lets not even start on what confucious says about members of our country's leadership.
The question of real importance is who is responsible for drafting and sponsoring this piece of legislation and who voted to ratify it into law? Ann Coulter gives the "appearance" of saying bad things about Obama. She may be next.
ThinkingMan,
The problem really lies in the instruction, by the judge, to the jury. If you read the instruction, the most rational inference is that he didn't have to "actually" do anything illegal to be found guilty of doing anything illegal. (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.) If there was no "actual" conflict of interest, there can't be a crime. I would love to read the actual instruction, word for word, but if what Mr Schiffman writes is true, it was wrong.
The bulk of the authors argument is based on the constitutionality of the law, the part you are referencing is a bit confusing because it is one line sandwiched in-between the rest and not detailed enough in context to even comment on.
Snip "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" which I assume is based on the fact that his attorneys are contesting the federal honest services statute that is being used to prosecute him, that’s the major take away that I get.
The other minor part of the article is a claim that the judge gave incorrect instructions to the jury, and here is where it gets a bit odd in my opinion. Are these the instructions before the jury retired to deliberate or the instructions after the jury requested clarification on what "beyond a reasonable doubt" meant? According to what I see the only contention was that the judge read the Allen Charge when this came up?
In a military setting, there has to be no precedent. Degree of guilt is the only question. At this level of attrocity, there can be no mis-trial, only difference in degree of sentence, between execution or life in prison. Talk of mis-trial, etc. letting him walk, is beyond comprehension. We Hope!
From what I read no proof of actual thought is needed – only the appearance that one might or might not be thinking since the need to prove intent is not there.
Therefore, let's convict Obama – for not thinking – or for thinking – or for not thinking – or … — who cares ? Let's just arrest, prosecute, and convict the bum !
It's the same "logic" that justifies "hate" crimes. It's all total BS. This just takes it one step further.
Doesn't matter. If he didn't break the law, he didn't break the law. That's not a technicality. Doing something unethical is not the same as doing something illegal.
The law is supposed to punish the act, not the motivation. Any flatfoot cop can tell you that motive alone is not proof of a crime. The law is being turned on it's head. If we cannot depend on the Law, can anarchy be far off?
I think that this all started with Clinton …"I don't know what 'is' is…the word police are driving me crazy! Personally, I think there are TOO many laws..whoever said that it was 'legal' for lawyers to 'write the laws' anyway!!!???
Now, I know why that a Supreme Court Justice is getting out! Obama can now appoint a Marxist Judge to the Supreme Court and along with that Hispanic Justice, the Supreme Court will convict the long time New York Republican Senate Leader Joe Bruno! What this article does not take into account, or probably doesn't even believe(?) is that Lucifer is still the ruler of earth and "reason alone" dictates that Lucifer is in charge of the "Marxist New World Order" under Lucifer! Thus, logic and reason states that Bruno will go down in the state that was the first State in America to accept the progressive(Marxist) movement! Watch!
This is a really nice blog you got here. The theme is awesome! Great color combination.
[...] Former Senate Majority Leader Joe Bruno has a fan. [...]
[...] Former Senate Majority Leader Joe Bruno has a fan. [...]
I wish more people would write blogs like this that are actually fun to read. With all the fluff floating around on the net, it is rare to read a blog like yours instead.
I start reading these days about a certain anti aging cure that can potentially really support all of us.
Schiffman didn't write this.
Take this down Schiffman. I own the copyright to it. Write your own shit.
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