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Another look at the Kerik caseCOMMENTARY | April 07, 2010The judge in the corruption trial of Bernard Kerik, acting at the request of prosecutors, suppressed testimony that could have been helpful to the former New York police commissioner. Taking a hard look at these events is Andrew Kreig, founder of a project that examines high-visibility white collar crimes. By Andrew Kreig Federal authorities secretly pressured former New York City Police Commissioner Bernard Kerik to plead guilty to corruption charges last fall by suppressing testimony from a critical witness.
Kerik’s trial judge forbade former New York City inspector general Michael Caruso from telling Kerik’s jury he was fired in 2006 for, in Caruso’s view, refusing to lie to frame Kerik. In legal papers sealed from the public, prosecutors argued that Caruso’s testimony might unfairly ruin their case.
Until this Nieman Watchdog report, news that U.S. District Judge Stephen Robinson suppressed Caruso’s evidence has spread largely by word-of- mouth among Kerik’s friends complaining about the judge’s pro-prosecution initiative.
As I reported here on Feb. 19, the case essentially ended the previous day when Robinson imposed a four-year term that exceeded both the plea bargain and federal sentencing guidelines. Like other reporters, I missed the secret debate that had occurred over Caruso’s evidence.
More generally, my research prompted me to found the Justice Integrity Project to review dubious white-collar cases nationwide. Many are complex and momentous, especially when the targets are major public officials such as Kerik, a 2004 Bush cabinet nominee.
As in all such matters, the Kerik story has two sides. Prosecutors say it’s vital to punish corrupt officials, particularly those suspected of cover-ups. That’s true, of course. But in this case, the judge, a Democrat confirmed for the bench in 2003 with Republican support, showed even before trial that he considered Kerik a brazen wrongdoer.
“Mr. Kerik, if left to his own devices, will obstruct justice,” said the judge last October in a pretrial courtroom tirade triggered by a near-breach in the secrecy of Caruso’s evidence. “My fear is that he has a toxic combination of self-minded focus and arrogance, and I fear that combination leads him to believe that his ends justify his means.”
In his fall from “Top Cop” to convict, Kerik has been the subject of hundreds of adverse news stories, many linking the charges against him to innuendo about alleged mob ties. But only after Kerik’s guilty plea did authorities say in a footnote on page 45 of a brief in February that they had no evidence he’d knowingly associated with anyone in organized crime.
Kerik’s career
In 1998, New York City Mayor Rudy Giuliani named his fellow Republican Kerik as city corrections commissioner. Kerik had spent four years in city corrections and earlier had been a highly decorated city detective on major cases. Giuliani named Kerik in 2000 as city police commissioner, running the world’s largest local force.
In December 2004, President Bush nominated Kerik to become secretary of Homeland Security. Kerik soon withdrew after news reports revealed that he hadn’t paid required taxes for a nanny for his two daughters.
State authorities later accused Kerik of ethics violations because a contractor, Interstate Industrial Corp., arranged renovations of his Bronx co-op in 1999 at a below-market cost to him of $31,200.
Kerik responded that he never knew the real cost or agreed to help Interstate boost its credentials for city work. Kerik thought he ended the dispute by pleading guilty to two New York misdemeanors ethics counts and admitting that the construction was worth $165,000. His state plea bargain in 2006 required no jail time and a fine of $221,000.
But federal authorities valued the Bronx construction at $255,000, and brought a new case in November 2007. Based largely on the Bronx issues, the 15 new charges accused Kerik of misleading tax and bank officials, along with Alberto Gonzales and other White House vetters.
Caruso, uncensored
To show that Kerik helped Interstate, state prosecutors summoned Caruso in 2006 to tell a grand jury about his 1999 meeting with Kerik at Walker’s pub in Manhattan. Also present at the pub was then-New York Waste Commissioner Ray Casey, a cousin of Giuliani.
Authorities asked Caruso to recall Kerik saying in 1999 he knew of no mob connections involving his friend Larry Ray, who worked for Interstate. A year later, Ray was indicted for unrelated stock swindles, and Kerik broke off contact. To win leniency from authorities, Ray then worked to try to nail his former friend Kerik.
Walter Arsenault, a special state’s attorney and also Caruso’s boss at the city Department of Investigation, led the Kerik probe. Caruso provided this account of what happened:
Keeping secrets from the press – and from the defense?
In August 2006, Caruso filed a federal suit reported by the press seeking damages from the city for what he called an unjust dismissal after 27 years of city work, 17 of them as an inspector general investigating fraud and waste. Two years later, Kerik’s prosecutors secretly intervened to request that Caruso’s judge forbid him from advancing his lawsuit by obtaining his state grand jury testimony or deposing Arsenault.
In denying the evidence from Caruso, U.S. District Judge William Pauley III ruled, “Kerik could use material from a deposition of Arsenault in this action to cross-examine him in the criminal action, potentially undermining the government’s case.”
Kerik’s prosecutors had filed their request under seal, with no indication in the public record they notified Kerik under law requiring authorities to provide exculpatory evidence to defendants.
Last September, a dispute on the Caruso evidence arose just before Kerik’s trial. On Sept. 14, prosecutors asked Kerik’s trial judge to forbid the defense from questioning Caruso about his grand jury testimony and his firing. Prosecutors cited federal rule 403, which permits a judge to suppress relevant evidence if it risks inflaming jury passions - including “hatred” and “horror” - or wasting time.
Defendants argued that Caruso’s evidence was “central,” and needn’t take long. But Kerik’s judge sealed the paperwork. Also, he jailed Kerik because a lawyer friend running Kerik’s legal defense fund mentioned Caruso material under seal in an email to a Washington Times reporter. The Times reporter went to authorities for reaction, and never published a story.
Kerik gave up and pled guilty Nov. 5. By then, he was being jailed indefinitely in 23-hour lockdown, while facing the first of three trials in two states. Robinson threatened to remove Kerik’s remaining attorneys because of the Caruso breach.
Judicial pressure shut down Kerik’s legal defense fund, leaving him with dwindling funds for new attorneys or to provide for his family. The judge recommended that Kerik retain a friend of the judge’s at taxpayer expense, and the judge phoned prison authorities to obtain Kerik’s mental health records. The release of mental records created headlines in New York questioning Kerik’s sanity.
Kerik’s judge and Southern District U.S. Attorney Preet Bharara’s staffers declined comment about the Caruso evidence or related issues, but did provide requested photos and documents.
Bennett Gershman, professor of law at Pace University in White Plains, NY, and author of the book Prosecution Misconduct, shared his perspective.
“There is case law,” he wrote me, “that a grand jury witness has a right to see his or her own grand jury testimony, although I’m sure the prosecutors would resist disclosure, as they are doing here. Interesting.”
The professor continued:
The government prosecutors argued that the Caruso case might prejudice the Kerik case. Ordinarily, I would see merit to the government’s position. My only concern is whether the government had knowledge that evidence existed (not just speculation as to what a witness might say if deposed) that would be materially favorable to a defendant they were prosecuting.
Assuming that information would demonstrate that Kerik’s prosecution was unfounded, then it probably would be unethical for prosecutors to hide that information from the Kerik defense, wherever that evidence came from, including a related or unrelated civil action. (My emphasis added.)
So, this case may not be over yet - even though conventional wisdom holds that Kerik’s conduct has been exceptionally disgraceful.
On MSNBC’s Morning Joe April 6, crusading publisher Arianna Huffington attacked fellow guest Giuliani for showing bad judgment in naming Kerik to high positions. Giuliani responded that he’d hired thousands, and that it was a “cheap shot” to judge him on one.
Host Joe Scarborough jumped in to describe Kerik as a “hero” who’d “made some bad mistakes.” Kerik, Scarborough continued, became a target when Giuliani began planning a 2008 campaign. “If Rudy Giuliani did not run for president of the United States,” Scarborough continued, “Bernie Kerik would be walking the streets today.”
Clearly, that’s debatable. But the Caruso evidence could raise the volume to a whole new level.
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