Former New York City Police Commissioner Bernard Kerik argued this week that a federal appeals court should vacate his four-year prison sentence because of serious errors and bias by his trial judge.
Kerik documented for the Second Circuit Court of Appeals in New York the remarkable judicial bias that prompted our non-partisan Justice Integrity Project earlier this year to cite the Republican's prosecution as one of our "Leading Cases" of judicial and prosecutorial misconduct nationally.
The three major arguments in Kerik's brief filed Sept. 28 attacked U.S. District Judge Stephen C. Robinson, who put Kerik in solitary confinement pre-trial for until he agreed to plead guilty to corruption charges last November.
At sentencing, Robinson continued his pre-trial pattern of denouncing the defendant before sentencing him to a term that exceeded both the plea bargain agreement and federal sentencing guidelines. In May, the former Bush cabinet nominee Kerik began serving his term on corruption charges at the federal correctional institute in Cumberland, MD.
Kerik's first appeal argument cited the judge for unduly punishing the defendant because a blogger-neighbor of Kerik several times supported Kerik pre-trial with blog postings. The posts suggested, among other things, that Kerik was being politically prosecuted for tax irregularities similar to those ignored when committed by such prominent Democrats as Treasury Secretary Timothy Geithner and U.S. Rep. Charles Rangel (D-NY). The judge formerly served as the Democratic-appointed U.S. Attorney for Connecticut, and as an assistant U.S. attorney in New York.
Hala and Bernard Kerik photo by maxine susseles
Kerik's filing said:
To allow a sentencing court to penalize a defendant for failing to stop others from criticizing the government and from asserting his innocence prior to a plea would violate core First and Fifth amendment protections, including Due Process. And even if these grounds for increasing the sentence had not been improper considerations, the sentence would be unlawful because of a separate procedural error: these unusual factors upon which the judge relied were not discussed in the presentencing materials and the judge prejudicially failed to give the required notice of his intent to rely on them.
Kerik, who had been then-Mayor Rudy Giuliani's police commissioner during 9/11, further showed how the judge repeatedly cited 9/11 in denouncing the defendant both pre-trial and at sentencing. Yet the judge forbade the defense from mentioning the defendant's 9/11 work.
The context for the judge's criticism was his claim that Kerik had unduly profited post-retirement and from wrongdoing in his three decades of public employment, which included becoming, even before he became police commissioner in 2000, one of his city's most honored policemen in history and a revolutionary city corrections commissioner.
U.S. District Judge Stephen Robinson
The judge contrasted Kerik's income to what the judge repeatedly described as his own financial frustrations in his life. At sentencing, the judge reflected:
And, so, what happens as a result is you look at your own life and you see the relatively meager circumstances. Your house is a lot smaller. You don't drive as nice a car. You don't get to go to Aspen in the winter and Cabo in the summer, and your friends do."
Kerik's brief further quoted the judge as complaining at Kerik's sentencing about the judge's own life:
You look at your friends and say, when you want to go off to Mexico for vacation, "You get to jet off, but I don't. And you live in a big house, and I don't."
Robinson resigned from the bench to begin work this summer as a partner for Skadden Arps, Kerik's brief noted. Trade publications report that average Skadden partner compensation is $2.1 million. "Under the circumstances," Kerik's brief argued, "the sentencing judge's comments form a backdrop against which the need for resentencing is all the more starkly visible."