Former New York City Police Commissioner Bernard Kerik is a patriot whose civil rights, including the right to a fair trial, are being trampled upon by an overzealous federal prosecutor and federal judge, says Fox News host Geraldo Rivera.
During a Thursday morning interview on the "Imus in the Morning" show, syndicated from WABC radio in New York, Rivera defended Kerik as a national hero facing unjust prosecution.
The veteran TV newsman, who also is a lawyer, told Imus that federal Judge Stephen Robinson has not acted properly and should recuse himself from the case.
At a hearing Tuesday at his White Plains courthouse, Robinson excoriated Kerik after prosecutors alleged he and one of his attorneys had released sealed court information to The Washington Times.
Robinson told the court: “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. The failure of Mr. Kerik to abide by the direct order of this court . . . must be appropriately addressed."
Robinson claimed that he was placing Kerik in jail to prevent him from influencing “witnesses or prospective jurors" in his upcoming trial.
The judge’s action set off a flurry of unflattering press reports on the eve of Kerik’s trial, with jury selection to begin next week.
The New York Post headlined Kerik’s jailing as a Page One story. The New York Daily News editorial headlined, “Bye bye, Bernie, bye, bye: Kerik goes to jail, directly to jail — where he belongs.”
Rivera was incensed, and questioned whether Kerik could expect to get a fair trial in light of the Judge’s comments and actions.
“This federal judge up there, this guy Stephen Robinson, seems to have such a thing up his behind about Bernie that he has revoked Commissioner Kerik’s bail pending trial,” Geraldo told Imus, adding that the judge’s public comments against Kerik were an outrage.
“My point is you’ve never had a federal judge — ever — lambasting a defendant,” Rivera said, adding, “You know, the judge says that his fear is that Bernie Kerik is trying to taint the jury pool and yet here’s this federal judge, this guy Robinson, who goes after Kerik from the bench saying he’s a sleazebag, he’s trying to taint the jury; he’s arrogant; he’s this, that and the other thing.
“It seems to me that the federal judge and the U.S. attorney’s office spending tens of millions of taxpayer dollars to prosecute and persecute this guy, they’re the ones who are tainting the jury pool.
“I just think that we’re letting a hero go down with a whimper, not even being allowed to defend himself. I think it’s really raw. It’s really low down.”
The brouhaha that landed Kerik in prison began in September, when one of his attorneys, Anthony Modafferi, who headed up Kerik’s legal defense fund and advised him on an unpaid basis, sent an email to reporter Jerry Seper at The Washington Times.
Though the email was clearly marked confidential, Seper, according to a letter from the federal prosecutor, forwarded the verbatim email he received from Modafferi to the New York City Department of Investigation.
The city department, in turn, turned over the email to the federal prosecutor, suggesting it detailed privileged information that should not have been released publicly.
The U.S. attorney also complained to the judge that “Anthony Modafferi hosts a Web site which, among other things, accuses the government of misconduct.”
Soon after the prosecutor’s allegations were made, Robinson ordered that Kerik close down his legal defense Web site, denying him the ability to raise funds for his trial.
He also asked for statements from Kerik and his defense attorney, Barry Berke, explaining their relationship with Modafferi.
In a 16-page affidavit dated Oct. 6, Berke detailed his and Kerik’s communications with Modafferi, clearly stating that Modafferi had served as “Mr. Kerik’s independent counsel” and had given him advice on the case, though Berke said he was not an active member of his legal defense team.
But Robinson did not buy claims that Modafferi acted alone and as counsel to Kerik, asserting that the pair was acting solely to gain publicity to influence a potential jury for his upcoming trial.
But Geraldo suggested the judge’s action “stinks.”
“Murderers get bail,” Rivera told Imus. “Police Commissioner Bernie Kerik who put his life on the line in Iraq, not to mention ground zero, has his bail revoked by a federal judge who’s in my view being a renegade, he’s meting out one kind of justice for regular defendants and a very specific, much more punitive kind of justice for a guy who should deserve a little slack once in a while, particularly in that he has already pled guilty to these charges in state court.”
Kerik faces federal charges for allegedly paying a below-market rate for work completed by a private contractor on his Bronx apartment during the time Kerik served as the city’s correction commissioner.
In 2005, the local district attorney in the Bronx launched an 18-month grand jury investigation.
The local inquiry examined the renovations matter, and also probed whether Kerik had aided a New Jersey construction firm in gaining city permits in return for a lowball price on the home work.
As it turned out, the DA uncovered no evidence that Kerik had negotiated with the contractor for a discount on the renovations. Nor did the local prosecutor find any evidence that Kerik had aided the firm in getting city contracts.
The probe did find that Kerik had, in fact, paid his entire bill for the renovation work. But the DA contended, and Kerik disputed, that the actual bill should have been for much more — and that the work amounted to a gift to the then-city correction commissioner.
With scant evidence of wrongdoing, the Bronx DA offered Kerik a plea deal: He would accept guilt for two minor ethics violations, on the level of a traffic summons.
Faced with significant legal fees, Kerik agreed to the deal on June 30, 2006.
At the time, the Bronx assistant district attorney stated that, “although some may draw inferences from this plea, there is no direct evidence of an agreement between Kerik and the New Jersey construction firm.” Kerik paid $221,000 in fines.
The federal case against Kerik is further complicated by the allegations made by Michael Caruso, a former inspector general for the City of New York Department of Correction, who filed a federal suit against the city soon after the Bronx probe of Kerik had been completed.
Caruso’s suit alleged that he was terminated by the commissioner of the Department of Investigation after he refused to testify falsely that Kerik had pushed for the home contractor to garner city business.
Rather than investigate Caruso’s claim that city officials sought to obstruct justice by having him commit perjury in the local grand jury probe, the U.S. attorney prosecuting Kerik, Elliott Jacobson, moved to prevent Caruso’s case from going forward.
By staying Caruso’s civil suit, Jacobson insured that evidence that might exonerate Kerik won’t surface until his criminal trial is complete.
Meanwhile, federal prosecutors, faced with going to trial on flimsy evidence involving Kerik’s apartment renovations, have sought to hit the former police commissioner with a laundry list of charges, many trivial, along with a barrage of three potential trials in two separate jurisdictions.
Rivera is fuming over the unusual prosecution of a man he describes as an American hero. He said he has not been a longtime friend of Kerik, but got to know him in recent years after meeting Kerik in Iraq in 2003.
The Fox host suggested that the prosecution against Kerik is motivated for political reasons and as part of a “process of defaming Rudy Giuliani.”
“The more Kerik looks like the heavy, the worse Giuliani looks in terms of the character of the people that he surrounds himself with,” Rivera said. At the time federal charges were brought against Kerik in 2007, Giuliani was a front-runner for the 2008 Republican presidential nomination.
Today, Giuliani is mulling a 2010 bid for New York’s governor job.
Rivera told Imus he is launching a “Free Bernie Kerik” campaign. “If I’m a one-man protest, I’m gonna stand in front of that damn Westchester court,” he said. “But this guy Robinson has to recuse himself. Can you imagine, now, a guy who has revoked a defendant’s bail and has excoriated the defendant from the bench is now going to preside over the corruption trial in some kind of fairness? Give me a break. It can never happen. They have to get rid of this judge and get a new judge in there and start all over again.”
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