The Crucifixion of Joe Bruno Time to End the Over Zealous Prosecution - or Bump the Judge By Michael R. Caputo

The federal judge leaned forward and looked intently at New York's once most powerful Republican. "Let me explain somethin' to ya once, Mr. Bruno, and I will not explain it again: for once in your life, you don't control something, I do."

Judge Gary Sharpe's stern rebuke stunned the courtroom. Suddenly, the 2009 trial of retired State Senator Joseph Bruno - one of the most significant, time-consuming and expensive political corruption cases in recent New York history - took a remarkable turn.

"You ever do what you just did in the presence of the jury again, which is question any of my rulings, I will take measures to make sure you don't repeat that," Sharpe barked at Bruno. "Do you understand me? Do you?"

Bruno replied without subtlety. "I understand very clearly, Judge, what is happening here. Very clearly."

The tension hung in the courtroom air. The defense table sat in shock - the defendant had not addressed the bench nor made an open comment. Bruno had simply leaned in to ask his counsel an inaudible question.

Bruno's heavy-weight attorney Abbe Lowell - who had defended top Democrats like John Edwards, Jim Wright, Dan Rostenkowski, Charles Keating, and Gary Condit - quickly tried to diffuse the situation, but the message was hard to miss. The exchange made it clear to the defense team and many outside observers that federal district court judge Sharpe is Hell-bent on crucifying Joe Bruno.

A growing chorus in the legal community is saying it is time for a new judge on the case - and even time to examine Judge Sharpe's courtroom antics in other cases.

Bruno's rise in power and path to persecution puts him in the crosshairs of ambitious prosecutors looking to punish the sins of Albany. His life story fuels his popularity in Albany and back home in Saratoga Springs: a Korean War veteran and an experienced boxer, he speaks the language of the Greatest Generation. A former businessman, Bruno entered politics mid-life and still knows his way around a boardroom.

The gregarious Republican Senate Majority leader - a tall, angular and impeccably dressed man with a Hollywood smile - was by many accounts the most charming denizen of the Capitol. He was ubiquitous in his community, too, and brought countless plums home from Albany. He was a force in the State Senate and nothing moved without his nod. As a result, he made his share of powerful enemies.

Friends and foes alike agreed that Bruno was the epitome of Albany's long established old boy network. Allies say he proved good could come of state capital's entrenched "three men in a room." His enemies are quick to contend Joe Bruno represents the downsides of a town where far too much goes wrong.

The critics' voices reached a crescendo in early 2009, when the federal government indicted Bruno on corruption allegations after a three-year investigation. His subsequent trial inspired Albany wags to paint Bruno as a symbol of the loathed Albany insider. US Attorney Richard S. Hartunian's case alleged part-time Senator Bruno failed to reveal his full time work, a violation of a hollow federal "theft of honest services" statue.

Oddly the ex-senator is accused of taking consulting fees from a friend and fellow horse owner-yet the government never proved any governmental benefit to the horseman. No one could prove Bruno had pulled strings for his equestrian pal because he hadn't. Bruno had failed to report the earnings but had done so on advice from counsel - a misdemeanor at best.

With the United States Supreme Court set to overturn the statute and dozens of New York State legislators doing exactly what Bruno was accused of doing, some court watchers were shaking their heads. Observers who recall Sharpe's attack on Bruno from the bench compare the outburst to the judge's response when the defense argued to await resolution of the imminent Supreme Court case. Defense attorney Lowell's point: the Supreme Court decision would have made the Bruno trial moot. As he argued his proposal, Sharpe brusquely cut him off, saying "I am the Supreme Court in this Court Room."

Sharpe's bias came into focus as the trial unfolded. Shortly after Sharpe attacked Bruno from the bench for speaking to his lawyer, defense attorney Lowell moved for a mistrial citing the Judge's obvious bias. Sharpe denied the motion instantly.

In December 2009, a jury found Bruno guilty on just two of eight counts brought against him. Still, he was sentenced to two years in prison - a life sentence for the graying lion of the Senate, who was already 80 years old.

As many predicted, Bruno's conviction was thrown out when the United States Supreme Court struck down the "honest services" law as far too broad six months later. Instead, prosecutors must prove a kickback or bribe and Hartunian had proven none.

There was little cause for celebration, however, as Hartunian pledged to re-indict the Senator immediately despite having no new evidence. He did exactly that in May of last year. Legal analysts were quickly skeptical of the fresh indictment. The charges were little more than a photocopy of the allegations Bruno beat or had thrown out over the Supreme Court ruling on "honest services." The feds also included crimes, like bribery or extortion, for which he had neither been indicted nor convicted. Worse, the prosecution had stipulated in the original trial that Bruno had not committed these crimes.

Bruno attorney William Dreyer told reporters: "We consider this to be a gross miscarriage of justice ... a waste of government resources."

Court watchers noted that the new indictment offered no new evidence. According to leading legal scholars, Hartunian's second bite at the apple violated the rule of law.

"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," said former federal Judge Andrew Napolitano, a Constitutional scholar, wrote this month. "And that will spawn many more miscarriages of justice."

"Can the feds do this? Can they change the theory of their case after they have lost it?" Napolitano asked. "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."

Bruno filed a motion to dismiss the new charges alleging double jeopardy and more. When Sharpe summarily rejected the dismissal motion he also gave Bruno time to appeal his decision as it pertains to double jeopardy. Today, Bruno awaits appeal before the Second Circuit of the US Court of Appeals, which will decide whether to dismiss the case or allow a second trial to go forward.

Incredibly, last week Federal prosecutors asked the Second Circuit not to even hear Bruno's appeal and to allow his trial on the new charges to proceed. Their theory: Bruno could appeal to the Second Circuit if he loses at trial. In fact, the feds want to deny Bruno due process because they know the trial will cost Bruno $500,000 in legal fees. They seek to break this proud man financially and exhaust his ability to fight. They want to crucify him.

"Society has chosen to use the criminal law to regulate an array of social and economic behavior that is not inherently bad or wrong," according to the Foundation for Criminal Justice. "It has done so by unleashing the awesome power of prosecution through an array of overly broad, extremely harsh penal statutes that are often embedded in obscure regulations of which most citizens, and often legislators themselves, are not aware."

Now, in the twilight of his life, ex-boxer Bruno refuses to plead to crimes he did not commit, fully aware the Federal prosecutors will ruin him financially if they cannot incarcerate him. If the Feds had a bribery case against Joe Bruno why didn't they bring it initially? It is because they have none.

The Supreme Court has spoken; Joe Bruno did not break the law. The former Senator and his legislative colleagues felt comfortably within the law governing their part time jobs when consulting for outside firms. The Government has failed to prove any governmental quid pro quo for Bruno's actions. His appeal is based on sound Constitutional principle and the rule of law and the case must be dismissed. And if the trial goes on, deeply biased Judge Gary Sharpe must certainly be replaced.

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