Bernie Kerik's Trial Delayed Indefinitely

Bernie Kerik remains in custody in the Valhalla County Jail. His trial, which was supposed to begin Monday, has been delayed indefinitely. His lawyers filed an appeal today of the court's order revoking his bail.

According to the trial court pleadings on PACER, the reason for revoking Bernie's bail was the Government's assertion that he committed a crime while on release -- criminal contempt, which they allege he committed by providing pleadings discussing non-public information to an attorney who had been advising him on matters related to his criminal case, but who was not a part of his criminal defense team, in violation of the court's 2008 protective order.

The appeal will be heard by a panel of the Second Circuit on Thursday.

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    No indication Kerik waived his right (none / 0) (#1)
    by oculus on Fri Oct 23, 2009 at 10:09:36 PM EST
    to a speedy trial and he is in custody.  How can there be no new trial date?

    Under federal speedy trial law (none / 0) (#2)
    by Peter G on Fri Oct 23, 2009 at 10:21:35 PM EST
    the clock stops while any appeal is pending.  (See subsection (h)(1)(E).)  

    BTW, an earlier story on this subject (in the NY Daily News) said that the judge also blasted Kerik for trying to poison the jury pool by posting attacks on the fairness of the prosecutors on a website of his defense fund. (Site now down. Even the cached version is blank!) Is that borne out in the PACER documents, TL?


    Bernie didn't post anything (none / 0) (#10)
    by Jeralyn on Fri Oct 23, 2009 at 11:34:27 PM EST
    It was the lawyer he gave the document to, who was advising him on some matters and who ran his legal defense fund website, who posted. When Bernie sent the pleading to him, it had his lawyer's warning saying "confidential" and  "not for distribution."

    It's pretty convoluted. The pleading Bernie sent was a draft of the one his lawyers told him they would be filing the next day. They did file it publicly initially. It included a declaration by his lawyer with 10 exhibits. Then the Judge  instructed them not to file it publicly, so on 9/23, they moved to withdraw the public filing.

    Bernie never got the exhibits, according to his lawyers, only the pleading. By the time they moved to withdraw it, Bernie had already sent it (without exhibits) to the other lawyer.

    The protective order refers to discovery and documents in the case other than pleadings, i.e., Jencks, Giglio, and the like. Bernie didn't send that, he didn't have copies to send. The Government is now saying that because the pleading discussed Jencks, Giglio, witness names, etc., that's a violation of the protective order amounting to criminal contempt. I think that's a stretch.

    (I was on PACER one night around 9/22 - 9/23 checking the filings in his case, and his lawyers' motion and the exhibits were available and I downloaded most of them. So I know what's in them. I didn't write about them on TL then and certainly won't now that they have been withdrawn from the docket. But strangely enough, on 10/21, after the Court revoked Bernie's bail, it allowed the Government's motion to revoke Bernie's bond, and his lawyers' response, with a host of exhibits that include the sealed motions in limine and supporting documents, and Bernie's and his lawyer's affidavits as to what happened and when (with minor redactions) and what the other lawyer wrote and his email to the Washington Times, to be posted publicly and they are still up on PACER now.)

    I think what this is really about is that the non-official lawyer posted allegations on websites that there had been prosecutorial misconduct and that he sent an email to the Washington Times with the (now)non-public pleading and his allegations. The AUSAs said the material was defamatory and false. While Bernie and his lawyers say they didn't know the other lawyer was going to do that, and Bernie's lawyers told the other lawyer not disseminate anything, Bernie knew the guy had written similar things in the past and told the court he agreed with some of the allegations.

    The other lawyer was volunteering his time as a fellow "patriot". He would send Bernie's lawyers his thoughts on the case and he was consulting with Bernie about possible 1983 actions and possible withdrawal of his Bronx plea and stuff like that.

    So the bond was revoked because the Judge agreed with the Govt that Bernie's actions were likely a new crime committed while on bond (criminal contempt for violating the non-disclosure order)but the Govt hasn't charged him with criminal contempt and the protective order talks about non-public documents rather than pleadings. It's not clear that a pleading discussing non-public information is a violation of the protective order. Nor is the order clear that sharing something with a lawyer advising him on matters related to the criminal case but not a counsel of record in the criminal case is a violation. The lawyer had been advising him for months and had talked to his counsel of record and they had sent him publicly filed pleadings before.

    As I said, convoluted.


    For criminal contempt (none / 0) (#3)
    by Steve M on Fri Oct 23, 2009 at 10:25:26 PM EST
    I'm pretty sure there has to be a trial!

    Not a finding/conviction of contempt, (none / 0) (#4)
    by Peter G on Fri Oct 23, 2009 at 10:46:51 PM EST
    but rather a revocation of bail based on a supposedly supported accusation of contempt.  So much easier to do it that way, with no rules of evidence, no trial, just a summary hearing.

    Would either you or Peter G welcome (none / 0) (#7)
    by oculus on Fri Oct 23, 2009 at 11:09:50 PM EST
    Kerik as a client?  What a loose cannon.

    It is the first and most important step (5.00 / 1) (#13)
    by Peter G on Sat Oct 24, 2009 at 10:47:52 AM EST
    ... in any attorney-client relationship, especially when the client is charged with a crime -- or when, as with most of my clients, recently convicted of a crime (since I handle mostly appeals) -- to establish a relationship of confidence and trust.  Trust includes the client's recognition that the lawyer has expertise (hopefully) within his or her professional realm, both technical and strategic/judgmental, and will inevitably have to make a lot of the decisions.  That is not to say the client won't be listened to, but in the end, on all but a few essential issues (whether to plead guilty or not, whether to exercise the right to a jury trial, whether to testify) the lawyer has to run the defense, and make most of the decisions, large and small.  This is very hard for a client whose personality, psychological makeup, and/or life history has put him/her "in charge" a lot.  Winning the confidence and cooperation of such clients is very difficult.  I have been in quite a few such cases, with widely varying degrees of success in this regard.

    I can imagine! (none / 0) (#14)
    by Fabian on Sat Oct 24, 2009 at 02:16:53 PM EST
    I've commented that various people have the money to hire professionals to perform various services for them (manage money, legal advice, personal protection) and get into trouble because they don't do so.  That "I've got this." attitude that works so well some of the time is exactly what gets them into deep trouble at other times.  

    Having a client who has that problem - well, you could spend as much time working on the client as you could working on the case.


    I wouldn't take him (none / 0) (#9)
    by Jeralyn on Fri Oct 23, 2009 at 11:23:27 PM EST
    because his first lawyer is a friend of mine who according to the pleadings and news accounts, might be a witness. (That and the Rudy connection are the parts that interest me.)

    the time is excluded (none / 0) (#8)
    by Jeralyn on Fri Oct 23, 2009 at 11:17:11 PM EST
    while motions are pending. Sometimes the judge has specified how much time is excluded. I don't think he's waived speedy trial.

    The case has taken so long due in part due to the lengthy proceedings over the disqualification of his first lawyer, and then his second lawyer, which resulted in him needing time to get a third set of lawyers and for them to get up to speed.

    Also, the judge dismissed a few counts and severed others. The counts that were dismissed for improper venue were charged in a new indictment last month or the month before in DC. And the severed counts are the subject of a second trial in New York.  

    I have one question: (none / 0) (#12)
    by Fabian on Sat Oct 24, 2009 at 07:11:06 AM EST

    I can see some starry eyed fanboy doing this, but a lawyer?