Taking a Closer Look at Bernie Kerik's Sentencing

Journalist Andrew Krieg writes at HuffPo that the feds bullied Bernie Kerik into his plea and the four year sentence imposed by the judge.

My view is that the judge failed to protect Kerik's ability to mount a defense. We're all losers for this lack of fairness because all freedoms depend on justice in the courts. And for those (who often pop up in the comment sections of left-leaning blogs) who express satisfaction at Kerik's sufferings because he's a now-disgraced Republican, let's remember that Big Brother-style government is the issue here. It's not a good idea to applaud air bombing of neighbors.

He likens it to Don Siegelman's case and announces he's helping form "the Justice Integrity Project". The goal: [More...]

[To] assist federal defendants and their families in the most disputed cases to share their stories with independent journalists, academics and local concerned citizens. This will foster a way to engage the attention of courts and Congress, most of whose officials are far too complacent these days.

Back to Bernie and his sentencing. Andrew lists several ways the prosecutors hammered Bernie to the point he felt continuing to fight was hopeless. I've written about them many times on TalkLeft: The disqualification of two of his lawyers; charging crimes so closely related to those in his prior Bronx case; wiretapping his cell phone; adding a new federal criminal case in the District of Columbia, resulting in him facing three trials instead of two, since the judge had severed some of the counts; asking the judge to revoke his bond right before trial; and asking to have him remanded immediately.

This isn't about whether you agree or disagree with Bernie's political views. It's not about defending what Bernie did. It's not saying he didn't deserve punishment. It's about whether the government abused the awesome power it brings to bear when it charges a defendant -- any defendant -- with a federal crime.

As to the Judge's actions in imposing 48 months when the prosecution and Bernie agreed to a guideline sentence of between 27 and 33 months: The sentencing guidelines are no longer mandatory, and Bernie's agreement specifically stated the judge wasn't bound by their agreement. But I'd like to see the transcript, For one, I'm wondering how the prosecution responded when the Judge suggested he was going to exceed the 33 months the Government had asked for. Did it defend its agreement?

I'd also like to see the transcript to read the entirety of the Judge's comments about why he wasn't going with the plea agreement. (I haven't even seen it reported whether the judge departed upwards from the guidelines in sentencing Bernie or used the 3553 factors to impose a non-guideline sentence and a variance? They are different.)

The only thing I glean from the news coverage is that the judge blasted Bernie for profiting off 9/11, something he wasn't charged with, and said he was sending a message (deterrence) to other public officials.

The Judge's statements that Bernie profited off of 9/11 strike me as unfair. Prior to trial, the Government moved to prevent Bernie from even mentioning 9/11 at trial. The Judge granted its request.

"This is not about 9/11," Judge Stephen Robinson said at a pretrial conference. He said the attack was irrelevant to allegations that former Commissioner Bernard Kerik accepted apartment renovations from a construction company in exchange for recommending the company for city contracts.

If 9/11 was so irrelevant to Bernie's case, why did the judge use it as a factor in determining Bernie needed a longer sentence than the one agreed upon?

And why did the Government, which argued 9/11 was irrelevant in its motion to prevent Bernie from mentioning it at trial, make the same allegation against Bernie in its sentencing memo? Why should the judge and Government be allowed to use 9/11 against Bernie yet prevent him from presenting evidence about it, or even mentioning it at trial? That's a double standard.

Cindy Adams interviewed Bernie and his wife at their home days before the sentencing. It's an interesting interview. One thing that jumps out: Both Bernie and his wife say Bernie didn't even want the Homeland Security job (his wife was particularly against it) and Bernie turned it down at first. Then the White House called back and said Bush wanted him to take it. So he agreed to meet with them in Washington. And we all know how that turned out.

End of story: While I don't think 48 months was warranted, or that it will deter anyone else, at least the judge didn't remand him. Had Bernie not been allowed to self-surrender, I'd probably be opining the whole process was a railroading.

Since Bernie wasn't remanded, I'll just politely say while I disagreed with some of the judge's rulings, I'm not surprised by them, especially considering he's a former prosecutor under Giuliani. The only ruling I think was dead wrong was his revoking of Bernie's bail right before trial. It was overly punitive and that's not the purpose of bail. It makes me wonder whether it was a tactic to get Bernie to capitulate and plead guilty. If it was, it worked. Still, I'll give the judge the benefit of the doubt and refrain from stating it was his intent. I have no facts to suggest it was.

As to the Government, I feel no such restraint. I think it not only over-reached, but used a sledge-hammer to kill an ant.

Yes, Bernie Kerik committed some crimes and should be held accountable. But they didn't need to extract the pounds of flesh they took from him in the process. It's not right and it's not justice.

All of my coverage of Kerik, much of which is quite detailed and relates to Rudy Giuliani, who I have always vehemently opposed, is assembled here.

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    Having been on the wrong side of (5.00 / 1) (#4)
    by athyrio on Sat Feb 20, 2010 at 07:57:41 AM EST
    a Federal government witch hunt, I can personally tell you it is one of the scariest things on earth as they have unlimited resources...I ultimately prevailed but still have nightmares...No matter this man's crimes, just remember "but for the grace of God, go any of us"...

    the government has to play fair, (4.00 / 1) (#1)
    by cpinva on Sat Feb 20, 2010 at 12:10:21 AM EST
    otherwise respect for the law and the justice system is eroded. i have little but contempt for mr. kerik, but that's not the issue. this case deserves a full airing.

    comment falsely stating (none / 0) (#2)
    by Jeralyn on Sat Feb 20, 2010 at 12:55:04 AM EST
    Kerik's crimes was deleted. You can disagree with my position, but you can't make stuff up and claim someone was convicted of things they were never even charged with, let alone pleaded to.

    Let's see (none / 0) (#5)
    by jbindc on Sat Feb 20, 2010 at 08:10:36 AM EST
    Guilty of 8 felony counts for 48 months (he was originally charged with 16 felony counts), including using police officers to get information for him so he could write his book (always a good use of taxpayer money, especially when cities are strapped for cash to pay for things like, oh, police officers).  That equals 6 months per count - those are really just misdemeanor sentences.

    The judge said this:

    "I think it's fair to say that with great power comes great responsibility and great consequences," Judge Robinson said. "I think the damage caused by Mr. Kerik is in some ways immeasurable."

    I absolutely agree - nothing wrong with the judge's statement.

    He also said this re 9/11:

    The judge said that after 9/11, Kerik "in many ways acted in the highest tradition of a public servant." But then, he added, "The fact that Mr. Kerik would use that event for personal gain and aggrandizement is a dark place in the soul for me."

    And Kerik served three weeks in jail last fall after having his bail revoked because he leaked sealed information to try and sway the jury pool. Hmmm....

    Bernie Kerik is not someone who is easily intimated.  He's got 2 black belts, has worked security in the Middle East, was a military and civilian police officer, has powerful friends (even if not publicly), and has done business with the mob - you think some AUSA and a judge is going to intimidate him?  Even he admitted in open court he knew he was wrong and he should be punished - 4 years doesn't seem out of the realm of reality.  With his original 16 counts, he was looking at up to 147 years, so I think this is an absolutely fair sentence.

    Dividing the prison term (none / 0) (#6)
    by Peter G on Sat Feb 20, 2010 at 09:00:10 AM EST
    by the number of counts is a totally absurd and fallacious style of argument about sentencing.  It completely undermines the credibility of any other opinion you render.  The case is viewed as a whole, and the sentence is a "package."  The number of counts does not reflect either the number of separate forms of criminality or their severity.  Sometimes additional counts reflect an aggravation of the severity of the case as a whole, and sometimes they don't.  In any event, concurrent sentencing is the norm.  Even when sentences are imposed consecutively, the consecutive feature only reflects what the U.S. Sentencing Commission calls "a reasonable incremental punishment" for the additional offense.  It is not even within the range of reasonable opinions -- with which a thoughtful person might agree or disagree -- to suggest that Judge Robinson sentenced Kerik to six months per count, all running consecutively.

    I didn't say (none / 0) (#8)
    by jbindc on Mon Feb 22, 2010 at 08:44:38 AM EST
    That each count got 6 months - I said that was the average per count, which given the types of crimes, the fact that this is the second time he's pled guilty to some of these types of charges (obviously didn't learn his lesson the first time), the fact that he was originally charged with 16 felony counts, and the utter egregiousness of the breach of public trust he committed, 4 years (as opposed to the gift of 2-1/2 in the plea deal) doesn't seem to be that out of line.  Even he himself said he deserved to be punished, so for people to be outraged that he got 15 more months is pretty silly.

    quit while you are ahead (none / 0) (#9)
    by Jeralyn on Mon Feb 22, 2010 at 10:45:06 AM EST
    The renovations in the Bronx case are the same as those in the federal case. There was no "first" and "second" time.

    Please don't post false information here.