This opinion column originally appeared in the Troy Record.
A higher court is allowing former Senate Majority Leader Joe Bruno to appeal the decision by the feds to re-try the 84-year-old on two of the charges that were tossed out by the Supreme Court. If his lawyers are unsuccessful this summer, he could find himself back in front of a jury this fall.
Unlike through his first trial, Bruno has been silent and is letting his attorneys talk on his behalf. He probably realized he didn't help himself much by holding a daily press conference outside the courthouse bashing prosecutors and the judge. Ideally, what happens outside the courtroom shouldn't impact what happens inside the courtroom, or even in the realm of law, but I find it hard to believe egos aren't playing a role here.
Federal investigators, prosecutors and even judges are people too and as such have the same weaknesses as you and I. Bruno was one of the three most powerful men in New York state and taking him down would be not a bad notch in the belt of any FBI agent or federal prosecutor. There is one guy who could end it tomorrow -- U.S. Attorney for the Northern District Richard Hartunian. And while he should, it would certainly upset the same egos I mentioned above and they are presumably on the same team.
Anyway, as has been reported and observed by many legal experts the crux of Bruno's appeal, according to those close to him, is double jeopardy.
Since he was already tried once on eight charges of what was lumped together as theft of honest services -- which was made into a law to give the feds a reason to charge someone with something if they couldn't find any hard and fast evidence.
As we know, shortly after Bruno was convicted, the Supreme Court ruled the statute was unconstitutionally broad and as such can only be applied where there are instances of bribery or kickbacks -- neither of which Bruno was charged with during his first go around. You can bet, after crawling up all of Bruno's crevices for three years, if they had that kind of evidence they would have brought it in 2009 when he first went to trial.
The prosecutors even admitted they didn't have evidence of bribes or kickbacks during that first trial and admitted they didn't need any new evidence this time around to prove bribery or kickbacks. Amazing really and Judge Gary Sharpe is allowing them to get away with it.
It's a scary scenario on a number of levels.
For starters, the feds spent who knows how much time, money and energy looking into Bruno's business dealings and they resorted to a now unconstitutional statute in order to bring an indictment. By that logic they could indict anyone if they try hard enough.
Bruno has the guts and the means to fight the feds. Guts are cheap but hiring a team of attorneys isn't so imagine if the feds put the screws to an average person. There is, in a practical sense, no way most people can spend upwards of $3 million on a legal defense and I can't imagine how many innocent people have pleaded to things they really didn't do just to get a lighter sentence.
That said, the feds had every right to look into Bruno's activities. And they had every right to indict him and bring his case in front of a jury under what was the law at the time. I don't agree with it -- and obviously neither did the Supreme Court justices who changed the law -- but it's their job and that's what they did.
However, Bruno was already tried once. He was either acquitted or his convictions were tossed out and yet now the feds think it's within their right to another bite of the apple because they didn't get what they wanted the first time around. That's probably the scariest aspect of this whole thing. What if Bruno gets off again? Do the feds come at him again and give it another rip? And maybe a fourth time if those charges don't stick the third time around.
Back to the crux of the matter. Was there bribes and kickbacks? All New York state legislators are part time and as such many have outside work. Bruno isn't a lawyer -- if he was he wouldn't be where he is today because until recently lawyers, even those who are legislators, didn't have to disclose who their clients were -- he's a businessman who ran a consulting company. If another businessman like Jarred Abbruzzese wanted to pay Bruno $20,000 for his demonstrated expertise then that's between those two. Something is worth what someone else is willing to pay for it. Again, the feds didn't find any evidence of a quid pro quo after three years of looking.
Hartunian should do the right thing, stop wasting everyone's time and money, forget the appeal and throw the case out.