Bernie Kerik’s Excessive Sentence

Multi committunt eadem diverso criminal fato: ille crucem sceleris pretium tulit, hic diadema. — Juvenal

Last week, former New York City Police Commissioner Bernard Kerik was sentenced to four years in federal prison.

This was bad news, not just for Mr. Kerik.

The unusual sentencing of Kerik, and the handling of this case, should give pause to all Americans of every political stripe.

The long prosecution of Mr. Kerik, which began in 2005, is a complicated one to explain here [More details can be found in a Newsmax magazine report: Bernard Kerik: Trial of an American Hero.] It ended last week when federal district judge Stephen C. Robinson slapped Kerik with a harsh jail sentence of four years, ignoring federal guidelines that he receive a maximum of 33 months in prison.

The judge’s sentencing decision was extremely excessive, as were the federal and state prosecutions that must have cost taxpayers a pretty penny, my guess some $15 million to $20 million, at least, over five years.

Mr. Kerik was a high-profile figure, a celebrity for his heroism on 9/11 and his remarkable personal story of rising from an underprivileged background to become police commissioner and, later, President George W. Bush’s nominee for the position of Homeland Security secretary.

“I think it’s fair to say that with great power comes great responsibility and great consequences,” Judge Robinson told the court Thursday. “I think the damage caused by Mr. Kerik is in some ways immeasurable.”

Justice is often unfair and excessive toward the famous. I have written in the past that I believe Michael Skakel, for example, should never have been convicted of the murder of Martha Moxley. The evidence simply was not there. But being a Kennedy cousin acted like a double-edged sword against Skakel.

The Kerik case is far different from the Skakel one. Kerik was a hero policeman and detective who had won numerous awards long before Sept. 11. His long public service had been exemplary until a series of nasty allegations arose when he was nominated as Bush’s Homeland Security chief.

Among these allegations was the claim that Kerik, while the city’s correction commissioner, had gotten free renovations for his apartment from a company that did business with the city.

In 2005, the matter was quickly brought before a Bronx grand jury that probed the matter for 18 months. At the end, the local prosecutors found no evidence that Kerik had engaged in actual corruption, that is he gave benefits to the construction firm. Kerik claimed he had paid the firm $50,000 for the renovations, and the prosecutors alleged the renovations amounted to more than $200,000 (a remarkable amount for a small 1,100-square-foot apartment).

In the end, Kerik pleaded guilty to two misdemeanors for not reporting the “gift,” and paid the city a fine of $225,000.

Typically, the case should have ended there. But in 2007 a tumbling series of dominos led to a federal investigation by the U.S. attorney for the Southern District of New York.

Prosecutors typically love high profile cases like this — and this was no different.

This time, the feds used their subpoena powers to give Kerik’s professional life a proctology exam.

They eventually charged him for crimes state prosecutors could not uncover, specifically that he had engaged in a theft of “honest services” corruption charge. Apparently seeing that the evidence for this was weak, the federal prosecutors also took the “kitchen-sink” approach and indicted him on a slew of minor matters (amazingly filing three separate indictments against him in two different jurisdictions — talk about overkill!).

These other charges included the claim Kerik had not paid Social Security taxes for his nanny (the first I have ever heard of some official charged and jailed for this) and not paying taxes on a BMW that was given him to use during this time he served as a BMW company adviser (Tom Daschle was never charged for something quite similar).

Late last year, Kerik pleaded guilty. I believe he was denied a fair process. On the eve of his trial in November, Judge Robinson even threw him in jail. The reason? One of Kerik’s attorneys had sent an e-mail to a Washington Times reporter on the case.

For this, Judge Robinson lambasted the former hero cop as “arrogant” and worthy of immediate imprisonment before his trial. The judge also didn’t like the fact Kerik had a legal defense Web site. The judge also ordered he shut down his legal defense web site.

Are you starting to get a picture of this case?

To top it off, just as the case was to go to trial, the judge announced that he was considering removing Kerik’s defense attorney from the case (which would have been the third defense attorney the prosecutors had forced off of his case), meaning he wouldn’t have an attorney for the trial date.

Is this looking a little like a kangaroo court? In theory, Kerik could hire another attorney, but he had already exhausted millions of dollars and had no money left.

A new attorney would mean another year of delays and perhaps millions of dollars more legal fees, money that, according to a Cindy Adams New York Post column, the nearly bankrupt Kerik simply didn’t have.

Kerik pleaded guilty. He pleaded guilty to essentially the same crime he pleaded guilty to in state court in 2006.

As for the federal charge of corruption, that was completely dropped. If the feds had strong evidence that Kerik had engaged in a quid pro quo with the construction firm, as was alleged in their indictment, it is doubtful they would have agreed to such a plea.

The crimes Kerik pled to centered around the tax evasion on the BMW and for lying on his federal forms, which he prepared for the position of Homeland Security secretary.

At sentencing, Judge Robinson justified his excessive sentence by making great hay out of the fact that Kerik lied "in the process of attempting to become a Cabinet-level position in the government of the United States."

The claim Kerik lied on his federal forms was his failure to declare the renovations on his apartment and that they amounted to a gift. It is important to remember that the renovations took place in 1999.

At the time Kerik prepared his federal documents for the Cabinet position in 2004, no one had ever raised an issue over the value of the renovations. All of this came out after he had filed those forms, so Kerik should have consulted a psychic to have known that the renovations would be a major legal issue for him and that the value of the renovations would be contested.

So why was the prosecution so overzealous and the judge so harsh with Kerik?

I have no idea. One can guess. So closely associated with Rudy Giuliani, Kerik may have been a convenient punching bag for those who didn’t like Giuliani. Giuliani rubbed a lot of people the wrong way. [I should note that I am not a political supporter of the former mayor.]

Judge Robinson, a Democrat, admitted late in the case that he once worked under Giuliani in the U.S. attorney’s office. Why didn’t he declare that and recuse himself from the beginning? Giuliani’s name has been mentioned in almost every article ever written about this case.

I am not the only one to think the unfolding of this case has been somewhat bizarre.

Andrew Kreig is executive director of the Justice Integrity Project, an organization “created to improve oversight of federal white-collar prosecutions.”

In his column on the liberal-leaning Huffington Post, “Feds Bullied Kerik into 4 Year Term, Hurting Us All,” Kreig writes: “Even after the prison doors are scheduled to clang shut on Kerik May 17, we in the media need to re-examine how federal authorities can railroad someone like Kerik into a guilty plea this way. The procedures violate my sense of fairness, albeit probably not in a way legally enforceable by anyone if a defendant can't fight any longer."

Krieg continues: “U.S. District Judge Stephen Robinson approved unusually aggressive prosecution tactics, such as depriving the defendant of lawyers by designating them as witnesses. Robinson even suggested last fall to the defense that Kerik use a friend of the judge's if another removal became necessary.

“Meanwhile, the judge was crippling the defense by imprisoning Kerik pending trial and berating him in open court as exemplifying ‘arrogance,’ and worse.”

It is important to note here that neither Kreig (nor I) has ever said that Kerik is innocent. Kreig asserts that Kerik was denied a fair process, which is fundamental to our justice system to work properly. Kreig also points out that Kerik had millions to spend when most people don’t. If he could not get a fair hearing, who among us can?

Jeralyn Merritt, a well-known criminal defense attorney who appears frequently on television news, also found the handling of the Kerik case unusual.

A liberal, Merritt noted her in her TalkLeft blog column that she simply didn’t “know what all the fuss was about” in the Kerik case.

She reminded readers of some of the facts: “The case is largely based on the same conduct to which he pleaded guilty in the Bronx, and received no jail time.. .

“What did he do that was so terrible? He didn't declare the value of the renovations on an apartment on his tax returns; he made false statements about them; he didn't declare the value of a BMW he received from a company he was working for; and he spoke for free at organizations and deducted his normal speaking fee on his return as a charitable contribution. Total: About $300,000. He didn't tell the White House he had a full-time nanny whom he hadn't paid social security and medicare taxes for. (He's since paid them.) . . .

“The Government makes a point of acknowledging that there is no evidence Kerik was involved in organized crime or had improper dealings with them.”

Merritt’s bottom line: “I may not share Kerik's politics, but I have no problem looking at the facts of his case and wondering what the big fuss is all about.”

Ditto for me.

Kreig offers a warning about the implications of the Kerik case: “Whatever Kerik's crimes or misdeeds, he got railroaded through the legal process despite spending millions. That's bad for all of us. Let's dig deeper into his case, and others like it.”