Tags: bernard | kerik | trial

Bernie Kerik: The Trial of an American Hero

Thursday, 10 Sep 2009 11:18 AM

By Dave Eberhart & Jim Meyers

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Overzealous federal prosecutors. A public figure who allegedly got home renovations as a gift. A massive federal investigation. A slew of charges. The target appears guilty, but a careful review of the evidence suggests otherwise.

This sounds like the case of former Alaska Sen. Ted Stevens, but it isn’t.

It is the ongoing legal saga of Bernard B. Kerik, the former New York City police commissioner and one-time Homeland Security secretary nominee.

[Editor's Note: Read the Newsmax magazine story, “Bernie Kerik: The Trial of an American Hero” Go here now.]

Stevens was the sitting Alaska senator whose 2007 federal conviction for not reporting renovations to his home properly was overturned. In April 2009 a federal judge voided the verdict and ordered a criminal probe of six prosecutors involved in the case.

“In 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” U.S. District Judge Emmet Sullivan said.

The Stevens case has become emblematic of the length federal prosecutors will go to convict their target — even if key evidence suggests innocence.

Federal Judge Stephen Robinson, who is overseeing the government’s case against Kerik, chided prosecutors for rummaging through his entire life to find some crime.

“It seems to me that it could fairly be said [that the complaint] is looking at the life of Mr. Kerik, and throwing everything at him,” Robinson said at a court proceeding earlier this year.

Kerik’s attorney, Barry H. Berke, also lambastes the government tactics in this case, especially the recent third indictment in a new jurisdiction, Washington, D.C.

“This is the third separate prosecution against him arising out of the same purported corruption allegations from 10 years ago — it is the latest example of the Department of Justice’s overzealous pursuit of high-profile public figures,” Berke explains in his offices at the prestigious New York firm of Kramer Levin Naftalis & Frankel LLP. “The Justice Department’s own rules mandate that ?the government bring as few charges as are necessary to ensure that justice is done,’” he adds.

Despite his legal woes, Kerik is still known as “America’s Top Cop” — New York’s police commissioner during the harrowing events of Sept. 11.

Along with his then-boss, “America’s Mayor” Rudy Giuliani, Kerik was catapulted to national hero status. For Kerik, the adulation has come at a price.

His misfortunes have served as a reverse barometer of Giuliani’s political success. As Giuliani became a celebrated presidential contender, Kerik became a convenient surrogate punching bag for the former mayor’s political enemies.

Today, Bernard Kerik is fighting for his innocence with a criminal guillotine hanging over his head. Cut off from most of his business and media access, his income has withered.

Now, he spends his time preparing his legal defense, when he’s not busy at his New Jersey home with his wife raising their two young daughters, ages 6 and 9. [Kerik's defense fund is at www.KerikLegalTrust.com.]

On Oct. 13, 2009, Kerik is set to begin one of as many as three trials federal prosecutors have laid out for him in a legal barrage that would have caused most others to capitulate.

A Second Look

Perhaps the most decorated police commissioner in New York City history, Kerik is an unlikely criminal target.

Born in Newark, N.J., Kerik was a high school drop-out who later got his GED and joined the Army.

After leaving the military, he landed at the New York City Police Department in 1986. Though a rookie, he was assigned quickly to the narcotics division.

His superiors assigned the street-smart Kerik to infiltrate the Colombia-based Cali drug cartel. He worked in concert with the federal Drug Enforcement Administration, and the rookie detective’s story took on French Connection proportions as his beat soon expanded to Central and South America, where he helped the feds seize hundreds of million in cash and cocaine.

Throughout his police career, Kerik bagged more than 100 awards, including one of the police department’s highest awards, the Medal of Valor, a commendation from President Reagan himself, and an honorary appointment as commander of the British Empire from Queen Elizabeth II.

Though the narcotics detective episode alone could have sufficed as a sensational Hollywood screenplay, destiny would offer the young cop even greater drama.

In 1993, a former federal prosecutor, Rudy Giuliani, tapped Kerik to head his campaign security detail.

In 1998, then-Mayor Giuliani appointed him as commissioner of the New York City Department of Correction.

As Giuliani’s second term was in its final years, the mayor promoted his trusted friend Kerik the 40th New York City police commissioner. But the terrorist attack on Sept. 11, 2001, was the pivotal moment that helped to intertwine the two men for eternity. Kerik was widely hailed for his performance overseeing the law enforcement response to the attack.

As Giuliani departed office, so did Kerik. The pair quickly formed a private security consulting firm Giuliani-Kerik, a subsidiary of Giuliani Partners.

Kerik became the go-to guy for governments around the world when questions arose about security matters. President Bush even appointed him as the Iraqi provisional government’s interim Interior minister.

Like Giuliani, Kerik became a national celebrity. His life story, The Lost Son: A Life in Pursuit of Justice, became a runaway New York Times best-seller.

Kerik’s status continued to rise when President Bush nominated him on Dec. 3, 2004, to succeed Tom Ridge as Homeland Security secretary, saying, “Bernie Kerik is one of the most accomplished and effective leaders of law enforcement in America.” That’s when Kerik’s troubles started.

A Bronx Probe

Almost immediately following the announcement of his nomination, a torrent of negative headlines soon greeted Kerik.

A week after being nominated, he withdrew, stating that he had unknowingly hired an undocumented worker as a nanny.

One of the allegations that surfaced during that time caught the eye of the Bronx district attorney who launched an 18-month grand jury investigation.

The inquiry revolved around renovations of Kerik’s Bronx apartment while he was correction commissioner in 1999 and whether he 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.

Kerik had, in fact, paid his entire bill for the 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 assistant Bronx 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.

Though the Bronx DA had closed its case, the matter was far from resolved.

During their probe, the DA’s office had placed a wiretap on Kerik’s phone.

The tap captured a conversation between Kerik and former Westchester County District Attorney Jeanine Pirro.

A frequent contributor to Fox News, Pirro called Kerik and asked him to conduct surveillance on her husband, whom she suspected of marital infidelity.

According to published sources, the tapes indicate Kerik had tried to talk Pirro out of the surveillance.

In the summer of 2006, just months after the Bronx case had been closed, the U.S. Attorney’s Office for the Southern District of New York announced it was investigating Kerik.

The probe examined whether Kerik conspired to eavesdrop illegally and failed to pay taxes on the renovations “gift.”

In March 2007, The New York Times reported that federal prosecutors offered Kerik a deal if he would plead guilty to charges of tax fraud and wiretap conspiracy.

Kerik refused. In November 2007, the feds handed down a 16-count indictment charging him with “selling his office.”

Suppressing Evidence

But the federal indictment had all the earmarks of a kangaroo prosecution from the start.

One indication that federal prosecutors were out to get Kerik was their handling of the serious allegations Michael Caruso levied in a federal lawsuit. Caruso, who was inspector general for the New York City Department of Correction, filed the suit 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, Rose Gill Hearn, 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.

Another disturbing aspect of the federal prosecution is its reliance on felon Lawrence Ray, described by New York magazine as a “high level con man,” as a key witness against Kerik. Ray and Kerik had been friends in the mid 1990s. But the two broke off their friendship after Ray was indicted in a securities fraud case linked to organized crime.

Ray had been a high-level informant in that case, but the FBI eventually would realize that they had been double-crossed by Ray.

The FBI also believed that Ray could “weave conspiratorial theories,” according to The Washington Post. In the end, Ray pleaded guilty and was sentenced to house arrest and probation. After Kerik’s legal problems arose, Ray offered prosecutors his “testimony” against Kerik.

The decision to quash Caruso’s allegations and to use Ray indicates how tenuous the federal case against Kerik is.

To buttress their case, prosecutors have sought to use the “kitchen sink” approach.

The fusillade of charges against Kerik fits the same pattern. For example, the federal indictment claimed Kerik falsely answered questions on his Homeland Security vetting forms and that he should have disclosed fully the issues relating to the renovations.

But Kerik said later that, when he filled out the forms, he did not believe he had done anything wrong with the renovations.

He would have had to have a crystal ball to have known to include the matter in his government vetting form before the Bronx DA had even investigated it.

Prosecutors also charged him with improperly taking a deduction for a home office in 2004. According to Kerik’s defense, his accountant caught the error in 2005, amended the return, and paid a penalty.

The prosecutors even went after him for his nanny problem. Though dozens of candidates have withdrawn their nominations through the years for not paying their housekeepers’ Social Security taxes, Kerik is the only one to be prosecuted.

Kerik pleaded not guilty to all charges and was released on a $500,000 bond.

“It’s a sad day because Bernard Kerik was a hero police officer,” Giuliani said shortly after the plea.

But the prosecutors apparently were unhappy only with Kerik’s decision to fight their charges. Early on, they moved to have his first defense counsel removed on a technicality. His passport was confiscated, cutting him off from income as an international consultant.

When prosecutors learned Kerik was seeking to mortgage his home to pay his legal bills, they swooped in and filed a lien on the home, preventing him from getting the loan.

Since the 2007 indictment, he was again slapped with two more sets of indictments.

Final Rounds

Despite depleting his entire personal wealth, Kerik is going into the final rounds a wounded, but not beaten, man. Kerik won one round in court in March when Judge Robinson, sitting in White Plains, N.Y., cited the statute of limitations in dismissing a wire-fraud charge.

Robinson also dismissed the charge that Kerik lied to the White House when he denied having any secrets that could embarrass him or President Bush.

The judge stated that at least two of the questions posed to Kerik at the time were too ambiguous for the answers to constitute deceit, and he then ordered that the tax-fraud charges against Kerik should be tried separately.

Kerik won another round in May, when Robinson ruled that prosecutors improperly lumped together the allegations of lying into Kerik’s New York corruption case by indicting him on a laundry list of illegal schemes and false statements over the span of eight years.

“The lone common link is Kerik himself, like an unpleasant episode of This Is Your Life,” the judge wrote in a scathing ruling criticizing federal prosecutors.

The judge’s moves apparently irked the prosecutors, who decided on May 26 to open up the new indictment against Kerik in D.C., including charging him with crimes Robinson had dismissed.

Kerik has declined to comment on his case. But Berke, his attorney, tells Newsmax, “Mr. Kerik looks forward to finally clearing his name of these corruption charges at his federal trial in New York set for October.”

Perhaps Ted Stevens’ defense lawyer, Brendan Sullivan Jr., put it best after his client was exonerated. Sullivan said that the way the Justice Department prosecuted his client “provided a warning to everyone in this country that any citizen can be convicted if the prosecutor ignores the Constitution.”

Any citizen — including an American hero.

[Editor's Note: Read the Newsmax magazine story, “Bernie Kerik: The Trial of an American Hero” Go here now.]

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