Judge Andrew Napolitano

Double Jeopardy

By Judge Andrew Napolitano - Thursday, July 18, 2013

While the country processes the racial politics-inspired prosecution of George Zimmerman, which came to a conclusion last week, and as the calls to try him in federal court for the same events for which he was acquitted in a state court become louder each day, a case in upstate New York is making its way through the system that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice and may give Zimmerman a foretaste of things to come.

Sitting patiently waiting for a Manhattan federal appeals court to order the government to obey the laws it has sworn to uphold is former New York state Sen. Joseph Bruno. Unlike many in the New York Legislature today, Bruno, a fiercely Catholic conservative Republican, was a pillar of legislative integrity, known even to his political adversaries as a man of his word. Once you shook his hand, you could count on his compliance with the agreement sealed by the handshake.

The justice for which the former state senator sits and waits is not based on any novel or arcane legal argument or any legislative loophole. It is a principle of law as old and as revered as the country itself. It is the constitutional prohibition against double jeopardy. Simply stated, the Obama administration wants to try him twice for the same alleged events, and he has asked a federal appeals court to prevent it from doing so.

Here’s what happened. In December 2009, Bruno was convicted by a federal district court jury in Albany, N.Y., of violating the federal “honest services” statute. Following the law as it then existed, the jury found that he had failed to inform the state of New York — his employer in his capacity as a sitting state senator — that he was also employed elsewhere. Being a New York state senator is a part-time job, and virtually all sitting state senators have other employment. Nevertheless, by this failure, he supposedly had denied the state his undivided, or “honest,” services. He was not convicted of bribery; he wasn’t charged with bribery. He was only charged with and convicted of violating this inane statute.

The statue is inane because it defies the age-old definition of “crime.” Crime is harm — generally, harm to the public order. This honest services statute has permitted Bruno and others to be prosecuted, not because their behavior caused any harm but because of their silence. But the statute was more than inane. It was also unconstitutional, because it punished silence; and silence is a natural right — for which we donÕt need the governmentÕs permission to exercise and, as a consequence, with which we cannot receive the governmentÕs heavy hand.

Last year, the U.S. Supreme Court unanimously invalidated the honest services statute and ruled that the failure of an employee to tell one employer of his employment relationship with another employer, without any palpable harm to either employer, cannot be a crime in America.

As a result of that ruling, a Manhattan federal appeals court threw out Bruno’s conviction. In a fair world, that would be the end of his ordeal. However, the Obama Department of (political) Justice obtained a new indictment against Bruno based upon the same set of facts that had formed the allegations of a violation of the honest services statute, but which it now claimed constituted bribery. The feds did this even though they had told the federal judge in the first trial nearly a dozen times that the state senator had not committed bribery and even though the witnesses who had testified for the government in the first trial uniformly stated when asked that Bruno had not been bribed.

Bruno’s lawyers saw right through this old trick — a trick that the kings of England played on their political opponents, including many Colonists. A trick so abominable that the Framers expressly prohibited it in the Constitution. The trick is played when the government calls the old crime — the one for which the charges have ended favorably for the defendant — by a new name, and presto … it can try the defendant again, even though it lost the first round. Regrettably, a federal judge in Albany bought this argument. His decision to let the feds prosecute Bruno a second time for the same events as were subsumed in the first trial is now under appeal.

Can the feds legally do this? In a word: NO; obviously NO. And in the federal system, it is very rare for an appeals court to get involved in a case before the case has reached a conclusion in the trial court. The fact that the appeals court is even hearing Bruno’s appeal at this stage — before any second trial has taken place — is a sign from the appeals court that the feds are not following the Constitution and the trial judge in Albany ought to have known that.

Joe Bruno — nearing the end of his distinguished public career at age 84 — is now a symbol of fidelity to the Constitution and an obstacle to a political Department of Justice that lacks that fidelity. If the government can violate a principle as fundamental and universally accepted as the prohibition on double jeopardy — and do so in plain sight by changing the name of a charge — there is no limit to what it can do.

Before he became a tyrant, Abraham Lincoln was a very successful trial lawyer. Demonstrating the propensity of an adversary to mislead, he once asked a jury, “If you call a tail a leg, how many legs does a dog have?” Then he answered: “Four, because calling a tail a leg doesn’t make it a leg.” Calling an old crime by a different name does not change its essence. A federal appeals court can put a stop to this miscarriage of justice, and it should do so before it spreads its ugly unconstitutional tentacles across the land and Joe Bruno has unwanted company.


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6 Responses to “Double Jeopardy”

  1. Rocketman says:

    I hate to even say this and it should never be this way, but the only way that I see Zimmerman staying out of jail or dead is for him and his family to leave the country. What a travesty of justice the Obama administration has become.

  2. Daniel Joseph says:

    Obama’s US Justice Department’s actions are standard procedure in Chicago’s Cook County. That actual strategy has a name in Cook County. It’s called “The Freeze Out” strategy. The financially stronger party files charges and then delays the proceedings to generate massive legal fees for the defendant until the defendant goes bankrupt both financially and emotionally. It’s common for a civil lawsuit to take six years in Chicago, not counting the appeal. Double Jeopardy is a financial strategy not a legal strategy. It is implemented by the courts to tie up the defendant’s time, energy, and money to quite their enemies. Same thing with the IRS. If you are audited but you paid all the required taxes when they were due, the audit will eventually end and you will not have to pay additional taxes. But the harassment of the audit process can use a huge amount of your time, energy, and the money you have to pay to your accountant. It’s a great thing to do to your enemy.

    If the government is dumb enough to file a civil rights law suit against Zimmerman, Zimmerman will win that lawsuit also. If the family is dumb enough to file a civil lawsuit, Zimmerman will win that lawsuit also. Zimmerman’s attorneys probably say a prayer every night that someone files another lawsuit so they can generate additional publicity from this insanity.

    The jury was stacked against Zimmerman. Five of the six women selected in part by the prosecution were mothers and Zimmerman shot a child. How could he get a more difficult jury in any future trials?

    The civil rights case is silly. There are only two choices:
    1.) Zimmerman was getting his head bashed in and he decided to shot Martin because he was black, or
    2.) Zimmerman was getting his head bashed in and he decided to shot Martin because he was getting his head bashed in.

    The next jury will figure make that decision without much trouble. But the emotional and financial cost to one of Obama’s enemies will be massive.

  3. Daniel Joseph says:

    I hope people start calling this strategy “The Freeze-Out Strategy”. Calling things buy a name that is true and descriptive is an important step in moving toward a solution.

  4. Paul Anthony says:

    As reported here in Personal Liberty Digest, over 1000 black kids were killed by other blacks since the Zimmerman/Martin incident. If you don't read Personal Liberty Digest you may not be aware of that because the mainstream media don't report on that sort of thing.

    I can only imagine the frustration of the families of those dead kids. Their killers are never caught or tried, let alone punished. That frustration has been building for many years, and then along comes a "crazy-ass cracker" – someone who CAN be tried. Someone the media will talk about. Someone who can get some sympathy for a dead black boy.

    Zimmerman stood trial for ALL the deaths that went unpunished.

    I'm not saying it was justified, but just that it is understandable.

    • jmphope says:

      There is no dash in "crazy ass cracker" as Trayvon said it. And that's important because "crazy-ass cracker" is a racial slur, while "crazy ass cracker" is an anti-gay slur. Rachel Jeantel made it clear on the witness stand that Trayvon said the anti-gay slur, not the racial slur. She said it means "pervert." And that's important because the next thing we know, Trayvon is beating up the "pervert."

  5. Lawrence Ekdahl, says:

    Isaiah 59:14 "And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the streets and equity cannot enter." God's word is truth and aptly describes what is happening in America today.

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