Here is your local handicapper’s report on the Joe Bruno trial, based on yesterday’s closing proceedings, to assist you in getting your bets down.
Bruno’s lead lawyer, Abbe Lowell of Washington, did a bang-up job in his summation to the jury, speaking for almost two and a half hours in an urgent but conversational tone that made him easy to follow and easy to believe.
He spun and finessed the facts so that you could almost believe Bruno was an honest legislator who just happened to be a businessman on the side, an honest legislator who did everything that was required of him in the way of financial disclosure and just had the monstrous ill fortune to be picked on by the FBI.
He easily outpointed Assistant U.S. Attorney William Pericak, who spoke a little more than two hours himself but did so in a monotone and as if trying to assemble a case on his feet.
Pericak kept saying, “That’s a conflict, that’s a conflict,” regarding some situation or other, and it sounded like he was trying to convince himself as much as the jury.
Lowell, for his part, had recourse to the theme of that old radio huckster Paul Harvey: “the rest of the story,” as in, the government told you certain facts, but now I’m going to tell you the rest of the story. Here’s what they didn’t tell you.
This was very effective in holding his oration together and giving it shape.
I think anyone who just showed up at the courthouse yesterday, in downtown Albany, without knowing anything about the 14 days of testimony that came earlier but just relying on the closing statements of the lawyers would feel confident in voting to acquit.
But alas that was not all. There followed the judge’s instructions to the jury, which some of us kibbitzers had predicted would be the ballgame, so to speak, and those instructions strongly favored the prosecution, as indeed the law strongly favors the prosecution.
Judge Gary Sharpe told the jurors that a public official has a duty to disclose material conflicts of interest regardless of what any other state or federal law or regulation might require.
He told them a conflict of interest is material if it is capable of leading a reasonable person to change his or her behavior whether or not it actually does cause such a change and whether or not the public suffers any tangible loss.
The mere fact of a conflict and the mere fact of keeping it quiet is enough for a conviction. It doesn’t matter if the public official would have taken the same actions anyway, and it doesn’t matter if the actions he took might have been beneficial to the public at large.
The law doesn’t make clear how such a conflict should be disclosed — should it be hollered from a rooftop or what? — but that doesn’t matter either.
Even if a public official complies with local requirements, if he doesn’t disclose — somehow, to the world — his material conflicts of interest, he is guilty of depriving the public of his honest services and he is a candidate for the hoosegow.
Nor is it an adequate defense for him to say that he followed the advice of a lawyer if he didn’t give that lawyer all the facts and ask for full advice.
Whether the jurors will follow these instructions is impossible to say, but if they do, I don’t see how they can vote anything but guilty.
The government was impeded in the trial by having to rely on the testimony of witnesses who were largely sympathetic to Bruno — people who had worked for him or with him or who had employed him.
There was no mole, no “confidential informant” to wear a wire and trick Bruno into making incriminating disclosures.
There were no wiretaps, no secret video recordings, no embarrassing e-mails salvaged from confiscated hard drives.
There was just an accumulation of documents over time, and of anecdotal reports, showing that Sen. Joseph L. Bruno traded on the prestige and power of his office to make money on the side.
He worked for a private investment company in Connecticut, steering union pension fund money to them at the same time that he was bestowing state grants on some of those same unions and either facilitating or blocking legislation in which they had an interest, for just one example of his activities.
Clearly this was a material conflict, and clearly he did not disclose it. He reported himself as a “consultant” with Capital Business Consultants Inc., which was simply a name behind which he concealed himself.
Over 12 years he raked in more than $3 million in this manner, and he kept doing it until he was exposed in the press.
Is that enough for 12 workaday men and women to find him guilty of “theft of honest services” when so many other legislators similarly have outside business interests and when Bruno was never charged with violating any state law or regulaton?
Unlike the handicappers employed by this newspaper in the Saratoga horse-racing season, I do not make predictions. I just give you past performances, recent workout times, equipment changes, and leave you to make your own wagers.
I must say, though, that I heartily endorse this “honest services” clause buried in the mail and wire fraud law. The notion that a public official “inherently owes a fiduciary duty to the public to make governmental decisions in the public’s best interest” is one that could revolutionize our nation and, if consistently enforced, could probably empty out most state capitols as well as Congress itself.
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Categories: Opinion
