Former New York City Police Commissioner Bernard Kerik’s attorneys have filed an appeal claiming that he was treated unfairly when a judge ignored federal sentencing guidelines and sentenced him to four years in prison.
The appeal, filed last week with the United States District Court for the Southern District of New York (White Plains), states that Judge Stephen Robinson “took the case personally” and his “impartiality is in doubt.”
The appeal also paints a picture of Robinson as abusive, bullying, and sometimes erratic. Bizarrely, on more than one occasion in open court Robinson demanded that Kerik fire his defense counsel and hire the judge’s personal friend, a lawyer, to serve as his counsel.
After Kerik entered a plea agreement with federal prosecutors on Nov. 5, 2009, federal sentencing guidelines called for a term of 27 to 33 months for Kerik.
But an angry Judge Robinson in February handed down a harsher sentence — nearly two years longer than the shortest recommended term.
The preliminary statement of Kerik’s appeal reads, in part: “The sentencing judge in this case imposed a sentence well above the guidelines range called for by the plea agreement and the Presentence Report. He did so primarily because he was offended that supporters of the defendant . . . had proclaimed his innocence and criticized the prosecution prior to the plea, and Mr. Kerik did not ‘disavow’ these statements. These are not permissible bases to increase a sentence . . .
“Mr. Kerik’s sentence should be vacated and the case should be remanded for resentencing.”
Resentencing would be appropriate because “the impression that Judge Robinson took this case personally is hard to avoid. The proceedings were contentious, and Judge Robinson’s remarks and decisions throughout this case create an appearance of unfairness,” the appeal maintains.
Some background: Questions were raised as to whether Kerik, as New York City’s corrections commissioner in 1999, aided a New Jersey construction firm in gaining city permits in return for a lowball price on renovations to Kerik’s apartment.
This issue came to the fore after President George W. Bush named Kerik Homeland Security secretary in December 2004. Kerik later withdrew his acceptance of the nomination, admitting that he unknowingly had hired an undocumented worker as a nanny and housekeeper.
After Kerik withdrew, the Bronx District Attorney’s Office launched an 18-month investigation that found no evidence he had sought a quid-pro-quo for the renovations.
But the DA contended that the actual bill should have been for much more than Kerik paid, and the work therefore amounted to a gift. In June 2006, Kerik pleaded guilty to two misdemeanors for not reporting the “gift,” and paid a fine of $225,000.
But in 2007, federal prosecutors launched a new investigation and filed charges that included theft of “honest services” in regard to the construction company that reportedly was suspected of having links to organized crime; failure to pay Social Security taxes for the nanny, making Kerik the first and only public official to be criminally charged in a nannygate case; and lying on federal forms he prepared for the position of Homeland Security secretary.
The theft charge was eventually dropped and Kerik pleaded guilty to two other minor charges, with prosecutors agreeing to the 27-to-33-month sentence.
In the plea agreement, federal prosecutors admitted that, despite an exhaustive probe of Kerik’s activities, they found no evidence that the former 9/11 hero had any links to organized crime.
Though many federal nominees have admitted to hiring undocumented workers and not paying taxes for domestic help, Kerik is the only former public official ever to be charged by the federal government for such a violation.
Supporters of Kerik have argued that the punishment for the former decorated cop has been excessive. In the end, federal prosecutors nabbed him on minor tax issues and “lying” on his application for the Homeland Security job by not reporting the “gift” of renovations on his Bronx apartment. But his defenders note that the dispute over the value of the renovations, which prosecutors say amounted to a gift, was raised only after he had applied for the federal position.
Nevertheless, Robinson slammed Kerik with the 48-month sentence on Feb. 18, 2010.
Kerik’s appeal asserts that he was victimized by “distinct procedural errors,” and “because the appearance of Judge Robinson’s impartiality is in doubt, resentencing is warranted to preserve the appearance of fairness.”
The appeal brings several interesting points to light.
In October 2009, Robinson revoked Kerik’s bail, claiming he had disclosed information that was under seal. At the hearing revoking bail, Robinson denounced Kerik as possessing “a toxic combination of self-minded focus and arrogance.”
The appeal reveals several unusual actions by the judge. In one instance, he openly polled federal prosecutors as to a decision he should make.
As Kerik’s appeal states: “Oddly, when Mr. Kerik’s counsel respectfully requested a 48-hour stay for the purpose of appealing the bail revocation order, the Court asked the prosecutors: ‘You really think I shouldn’t grant the stay? All three of you [Assistant United States Attorneys] raise your hand if you think I should grant the stay. No hands are raised.’ He then denied the stay.”
The judge removed Kerik’s chosen trial attorney once and was poised to do so a second time on the eve of his trial. The move would have delayed Kerik’s trial and forced him to incur legal costs he apparently could not afford.
In the end, Kerik agreed to the plea bargain.
According to the appeal, on at least two occasions, Robinson “urged Mr. Kerik to accept the appointment of ‘an attorney that I know and have great faith in, Vincent Briccetti,’ as his counsel . . . He said ‘I told you that I think I’ve known him for over 20 years . . . And I told you that he’s actually one of the people who trained me’ . . . Mr. Kerik rejected each of Judge Robinson’s persistent offers to appoint Briccetti as his counsel.”
Robinson also appeared to be angered whenever Kerik tried to defend himself publicly. After evidence emerged that one of Kerik’s attorneys had communicated with a reporter from The Washington Times, Robinson had Kerik’s bail revoked and had him imprisoned just as his trial was to begin.
During open court, he lambasted Kerik for talking to the press through surrogates. Robinson capriciously ordered Kerik’s legal defense fund and the website for his defense to be shut down.
Robinson also criticized Kerik for having used his public position for financial gain in the private sector, and the judge complained that, unlike many of his friends, he could not take trips to Cabo or Aspen, or afford expensive college tuition for his kids.
Interestingly, shortly after handing down the tough sentence, Robinson resigned from the bench to accept a position as partner at one of New York’s most prominent law firms, Skadden Arps.
After Robinson left the bench, his friend Briccetti, whom the judge pushed Kerik to take as his counsel, was recommended for a federal judgeship by Sen. Charles Schumer, New York’s Democratic senator who had nominated Robinson to the federal bench.
Kerik was praised widely for his work as police commissioner during and immediately following the 9/11 attacks in New York. But Robinson ruled that Kerik could not mention the services he rendered after the attacks.
The appeal asserts that Robinson’s comments at sentencing would “lead a neutral observer to conclude a loss of judicial impartiality . . . Judge Robinson stated, without explanation or support, that ‘the fact that Mr. Kerik would use that event [of September 11] for personal gain and aggrandizement is a dark place in his soul for me.’”
The appeal concludes: “Under the circumstances, the sentencing judge’s comments form a backdrop against which the need for resentencing is all the more starkly visible.”
Andrew H. Schapiro, one of Kerik’s attorneys, told Newsmax that the appeal will likely be heard in the spring of 2011.
“I think we have a very compelling case,” he said, “and I look forward to arguing it before the Court of Appeals.”
Editor’s Note: See Newsmax’s 2009 report “Bernard Kerik: Trial of an American Hero” — Go Here Now.
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