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When Prisoners Have Stronger Ethics Than Prosecutors

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A week does not go by without another outrage of the U.S. prosecution service being exposed, and one of the more stupefying instances of potential prosecutorial abuse is cooking up over former long-serving New York Senate majority leader Joseph Bruno. Mr. Bruno, 84, a Korean war veteran, former boxer, businessman, and assistant to four-term governor of New York and U.S. vice president Nelson A. Rockefeller, served 30 years in the State Senate and was one of the most powerful men in the Empire State for most of that time. The custom in the New York state legislature is that the senators and assemblymen frequently also moonlight in non-political occupations to supplement their incomes, which, as legislators, is modest. Obviously, there is a potential for conflicts to arise and legislators, especially very influential legislators like Senator Bruno, have an onerous duty to avoid ethical ambiguities. After a three-year investigation, which may well have been prompted by political opponents, Senator Bruno was indicted on eight counts of abusing his position. The jury could not reach a verdict on one count, five counts were the subject of acquittals, and two counts led to convictions on the Honest Services statute.

Senator Bruno was sentenced to two years in prison, but imposition of the sentence was upheld pending the Supreme Court adjudication of the constitutionality of the Honest Services statute, which I am proud to say, I launched, having been convicted under it myself, and sentenced to prison for 78 months. I was serving my sentence in a low security prison in Florida when the United States Supreme Court unanimously declared the Honest Service statute to be unconstitutional and vacated the counts of conviction, and I was released on bail, pending a review by a lower court of the gravity of its own errors. Unsurprisingly, the court self-servingly found that two of the four counts of original conviction (of the 13 allegations originally charged), still had merit, and my sentence was cut almost in half and I was sent back to prison for a victory lap of seven months, and thankfully left the country after a total of three years and two weeks in prison in which it was my privilege to help more than a hundred inmates matriculate from secondary school. I am not an American and that was the end of it. It was an outrage from beginning to end but there is a great world beyond America, much of it in countries that are societies of the rule of law, including Canada and Great Britain, where I live.

Senator Bruno was both more and less fortunate than I. When the law was struck down, he went to court for the confirmation that the case against him was closed and the judge made the heavily criticized decision to authorize reprosecution, even though the government had not alleged any wrongdoing except that the senator had failed to disclose payments he had received as a consultant to his employer (New York State), but without evidence of or an allegation of a connection between the payments and the official conduct of the defendant. The Honest Services statute had been written to convict officials who took a bribe personally in the conduct of their official duties, but without the taxpayers or authority they represented suffering any loss, financially or in quality of work or service performed. The U.S. Supreme Court in my case determined that there had to be a bribe or kickback for the law to be applicable; otherwise, as one of the justices put it, a person who took an afternoon off work to go to a baseball game could technically be guilty.

When the case against Senator Bruno was struck down by the high court, the federal prosecutors immediately said that they would reprosecute, although they are doing so on the same evidence they had before and without even attempting to claim that his conduct meets the criteria established by the Supreme Court in my and Jeffrey Skilling's related case. The judicial system has so far locked arms to protect the right of the prosecutors to proceed, although doing so violates most concepts of double jeopardy-going after an acquitted person for the same offense again. With the usual megalomania of American prosecutors (almost all of whom would be disbarred in Canada or the United Kingdom for, inter alia, their abuse of the plea bargain system), the prosecutors in this case have invited the senator to plead guilty to something in exchange for a token, non-custodial sentence, a standard ploy to be able to claim justification. In the United States, 99.5% of prosecutions are successful, 97% without a trial, because the government can extort or suborn false inculpatory evidence and promise non-prosecution for perjury to witnesses. This is not what James Madison and others thought the Bill of Rights was establishing as the new country proclaimed itself a "new order of the ages" in matters of civil liberties, individual rights and due process. The United States has six to twelve times as many incarcerated people per capita as Australia, Canada, Great Britain, France, Germany and Japan. It has five per cent of the world's population, 25% of its prisoners, and 50% of its lawyers, who are a cartel riveted on the back of the country and extracting 10% of the GDP from it.

I had hoped that in 2006, when the assistant to the vice president, Lewis (Scooter) Libby, was falsely convicted, and the eminent U.S. senator Ted Stevens was convicted on evidence that was soon proved to be fraudulent, a fact of which the prosecution was aware, causing his conviction to be thrown out (but after he lost his bid for reelection), that the U.S. Congress and the administration would realize that the prosecution service was a state within a state that was terrorizing the entire country and was completely out of control, and would do something about it. That has not happened.

Senator Bruno is a powerful, popular and innocent man. They have virtually run him out of money, while spending $25 million of the public's money, and now, with the collusion of a judge who's been accused of abusing his judicial discretion, resolved to go after him again, knowing that he will have to scramble to find the $500,000 necessary to finance another defense, and presumably realizing that at 84 years of age, he might not survive another trial. It is an obscenely obvious abuse of a man who has deserved much better of the state and country he has served with distinction, in foreign combat and in high public office. Joe Bruno will win; he will survive and he will prevail. But I wonder how many more of these travesties, these mockeries of the rule of law, have to take place, and how many more innocent people have to be ruined, before the justice the founders promised and proclaimed, and most of the public naively imagines is still available, reigns again in the courts of a country that sings to itself that it is "the land of the free." I must add that of all the many hundreds of people I met in prison, including many dodgy characters, none was possessed of ethics inferior to the prosecutors I encountered in that country. It is a problem that gnaws at the moral heart of America, and Joseph Bruno deserves the Presidential Medal of Freedom for fighting it as bravely as he is.

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