On April 2, I wrote a column for Defining Ideas at the Hoover Institution entitled "The Persecution of Joseph Bruno", in which I attacked the decision of Richard S. Hartunian, the U.S. Attorney for the Northern District of New York, to bring additional charges against Joseph Bruno, the now-former New York Senate Majority leader. In that earlier column, as now, I did not make any judgment about the guilt or innocence of Mr. Bruno, but only objected to what I think is the shabby treatment that he has received under the law.
In that earlier case, Mr. Bruno, who had provided consulting services during his senate tenure without making the required disclosures, was charged with engaging in ”a scheme or artifice to deprive another of the intangible right of honest services,” a charge that did not require proof that Mr. Bruno had engaged in transactions that involved bribes or kickbacks (thus making the prosecution a much lighter lift). That theory of “honest services” was rejected by the United States Supreme Court in Skilling v. United States, which meant that the prosecution had to be thrown out.
At that point, Mr. Hartunian, who had decided not to pursue a quid pro quo theory in the earlier case, decided to bring the charge after all, knowing that it was harder to prove than the earlier one. For all I know, Hartunian might have been able to make the stronger charge stick. Bruno’s lawyers, however, claimed that the prosecution could not bring back to life the claim that it had chosen not to bring the first time around, relying on the decision in Saylor v. Cornelius, which found an abandonment in the claim never brought.
Not so, says the Court of Appeals for the Second Circuit in a brief Summary Order. Relying on well-established conceptual gymnastics, the Court concluded that the prosecution could not abandon in the initial case an action that he never chose to bring, and that Saylor was an outlier among the many cases on this subject. Alas, it is.
What the Second Circuit never once asked, however, was whether the decision gave the prosecutor all the wrong incentives in how to bring a case. The basic principle of double jeopardy is to prevent the state from having two bites at the same apple. In an ordinary civil case, the splitting of a cause of action based on the incident or cluster or events is forbidden. At the criminal level, the implications are much more severe. The state has huge financial resources and the ability to impose far greater sanctions on persons that it wants to make an example of. If the salami can be cut into two pieces, why can’t it be sliced into three or more at the discretion of the prosecutor?
Before this case went up, two journalists— Michael Caputo (“Prosecutor Abuse: The Crucifixion of Joe Bruno”) and Nick Powell (“Prosecution or Persecution: The Saga of Joe Bruno”)— gave clear indications of how the government damages its reputation for fair dealing when it engages in these multiple prosecutions. The Supreme Court is not bound by the lower court precedents, and it really ought to reconsider the deplorable prosecutorial behavior in this case. Sadly, on its intrinsic merits, this case is not even close.