In 1932, the United States Supreme Court decided the landmark case of Powell v. Alabama. The legal ruling created a sensation at the time, over what, in retrospect, looks to be an easy case. The Alabama state prosecutor sought to railroad nine black men, the “Scottsboro Boys,” in a capital case involving their alleged rape of two white women. The defendants were convicted and each was sentenced to the death penalty, even though they were only given their state appointed lawyers on the morning of the first trial.
The Alabama Court took no notice, but the Supreme Court reversed the conviction on the grounds that the legal assistance given to these defendants was both too little and too late, depriving the men of their life, liberty, and property, without meeting the constitutional requirements of “due process of law.”
Eighty years later, the criminal justice system is in better shape, but prosecutorial zeal can still pose a real threat to liberty unless judges are alert to its dangers. Consider the complex prosecution of former New York Senate Majority Leader, Joseph L. Bruno, a man in his ninth decade of life. Bruno, a Republican, was indicted in January 2008 under a statutory provision that provides that “the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."
Prosecution or Persecution?
The background is that several businesses and individuals paid Bruno for consulting services that he provided during his years in the Senate, which he failed to disclose to the proper state officials. Importantly, in the indictment, the prosecutor strategically chose not to allege that the private parties involved had committed any criminal conduct by offering bribes or kickbacks. That critical decision had two key consequences. First, it eased the prosecutor’s burden of proof in the case. Second, it meant that the prosecution simplified its task by not having to explain why it did not indict any of the private parties in the case for giving either bribes or kickbacks (they would have been guilty of parallel offenses if Bruno had been found guilty).
At first the prosecutor’s calculated risk looked good; the prosecution secured its conviction on two of the eight counts in December 2009 by repeatedly stressing that neither bribes nor kickback issues were on the table. The jury was hung on a third of the honest services charges. But the prosecution’s legal theory was vulnerable on appeal. The principle of “the intangible right of honest services” does not roll off the tongue. Indeed, this odd elocution only made it into the criminal code in 1988, after the 1987 Supreme Court decision in McNally v. United States, which confined the original honest services statute to schemes to deprive, by mail and wire fraud, tangible property like money.
Over twenty years later, the Supreme Court struck down the statute as unconstitutionally vague. In Skilling v. United States (2010), the court unanimously held that this statutory provision only covered “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who ha[s] not been deceived.” That narrow definition excludes many of the earlier cases that aggressive prosecutors had shoehorned into the category of “honest services fraud.”
As Frank Razzano and Kristin Jones noted in 2009, before Skilling came down, this ill-defined offense, which carries a possible criminal term of up to 20 years, could include “what may at first blush seem to be rather trivial conduct, such as failing to comply with the provisions of an employee manual, taking a standardized test for another student, providing a friend with a copy of a popular magazine before it was released to the distributor, or failing to provide detailed information about expenditures to their employer.”
In light of that history, the Supreme Court’s judgment on this question was spot on, for ordinary disclosure rules are far less serious than bribes and kickbacks. These conflict rules are put into place prophylactically to ensure that responsible officials can take steps to prevent more serious wrongs. Violations should constitute a minor misdemeanor at most.
In Bruno’s case, the prosecutor was compelled to concede that the convictions had to be overturned, a conclusion reached by the Second Circuit in United States v. Bruno, decided in November 2011. But that decision left open the prospect that the entire case could be retried. Richard S. Hartunian, the U.S. Attorney for the Northern District of New York (which includes Albany), who was a 2010 Obama appointee, took the bait and announced that he planned to use the same evidence to file a new set of charges for the bribery and kickbacks issues that had not been litigated the first time around.
Hartunian’s decision, along with the conduct of Chief Judge Gary Sharpe, has been excoriated in barbed commentaries by journalists Michael Caputo (“Prosecutor Abuse: The Crucifixion of Joe Bruno”) and Nick Powell (“Prosecution or Persecution: The Saga of Joe Bruno”) as gross abuses of prosecutorial and judicial discretion, in a case in which the United States has spent an estimated $25 million and has come close to bankrupting Bruno.
Hartunian’s decision seems even more dubious given that, as Caputo reports, “the prosecution had stipulated in the original trial that Bruno had not committed these crimes.” Whether Bruno was innocent or guilty of these more serious charges, I cannot say. But the decision to retry is surely a prosecutorial blunder of the first order.
To my mind, the Second Circuit shares a lot of the blame for taking actions that extended the case. At this point, the double jeopardy clause of the Fifth Amendment comes into play. It reads: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Clearly, it would make no sense to retry any of these three honest service counts on the same theory that had been tossed out in Skilling.
Nonetheless, Judge Barrington Parker, Jr. of the Second Circuit took the position that the case was ripe for a second trial “where a conviction has been reversed due to a subsequent change in the law,” even though the prosecutor is relying on the same evidence that was introduced at the first trial. The Second Circuit then proceeded to find evidence in the record that “Bruno performed virtually non-existent consulting work for substantial payments,” which might support a conviction for the bribery and kickbacks charges even in the absence of direct evidence that any quid pro quo was extracted from Bruno.
But Judge Parker asked the wrong question. His evaluation of the evidence would only be relevant to whether the prosecutor could support a conviction the first time around if he had chosen to pursue those counts. But no sound system of criminal procedure should let a case be retried a second time on theories available the first time. Judge Danny Boggs of the Sixth Circuit showed better judgment in his 1988 decision in Saylor v. Cornelius, which held that the government had to press or abandon its theory in the first trial. “To deny this proposition would mean that the prosecution could proceed on several theories of liability throughout a trial, and, simply by withholding instructions on any one of them, reserve that theory for retrial at a later date.”
The dangers of opportunistic government behavior justify Boggs’ reading of the double jeopardy provision. The key point here is that the term “offense” in the Fifth Amendment should not be limited to cover only the particular charge that is made in the original indictment, but must be read to cover all charges that could have been made on those same operative facts.
Reading the term “offense” to apply only to particular theories that could be applied to the same set of basic facts gives the prosecutor the perverse incentive to slice the salami as thin as possible: If you fail the first time around, you can then bring a second prosecution or even a third, or so the reasoning goes. The charge brought against Bruno in the first round was nondisclosure; in the second round, it was bribery and kickbacks. The key point here is that the guarantee against double jeopardy is an indispensable part of our criminal justice system.
One of the best ways to understand the rules of criminal procedure, like that concerning double jeopardy, is to compare them with the rules that govern civil procedure, which normally place government in a very different role. Civil disputes are between private parties, and the role of government is to establish the norms of fairness for cases in which it does not have an interest. At the top of that list are the rules of res judicata (“the affair has been adjudicated”), which hold that a final judgment in a particular case is binding on the original named parties.
The protection involved does not only extend to the issues that have been resolved through the trial, but to all issues that could have been raised during that trial, which arise out of the same transaction or occurrence. Subsequent claims in the law do not open up a final judgment, lest every case become insecure. The opportunity to bring a claim once is essential to the administration of civil justice. The opportunity to bring the same case twice is an open avenue to abuse.
Double jeopardy should be understood as extending the standard protections of res judicata into the criminal realm. The need for safeguards is even stronger on the criminal side: The risks of abuse are far greater in criminal prosecutions than in civil cases because the government has the power to throw its immense resources at a high-powered defendant like Bruno. The prosecutor has enormous discretion to select whom the office wants to sue, the charges that it can bring, and the amount of publicly funded resources that it can devote to the enterprise. If res judicata, broadly construed, is needed to protect against abuses in civil cases, double jeopardy has even greater importance on the criminal side.
The major lesson from the Bruno case has nothing to do with his guilt or innocence. What matters here is the legal framework in which those issues are decided. Every public official and private citizen should embrace the basic libertarian provision that state power is an evil until it is shown to be a good. There are many good reasons why the Bill of Rights is filled with explicit guarantees against the abuses of the criminal process. All criminal procedure is always a delicate balance between the state’s need to control against violence and abuse, and the abuse that it can all too easily commit through excessive prosecutorial zeal, which is not checked by close judicial scrutiny.
Bruno’s case represents both errors. Now the Second Circuit will take another look at the Bruno case on yet another appeal. Let us all hope that the court reconsiders its earlier incautious analysis of double jeopardy and brings this prosecutorial travesty to an end, once and for all.
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).