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NAPOLITANO: Zimmerman’s double jeopardy dilemma

There’s a similar judicial miscarriage now underway in New York City

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While the country processes the racial politics-inspired prosecution of George Zimmerman, which came to a conclusion last week, and as the calls to try him in federal court for the same events for which he was acquitted in a state court become louder each day, a case in upstate New York is making its way through the system that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice. It may give Mr. Zimmerman a foretaste of things to come.

Sitting patiently, waiting for a Manhattan federal appeals court to order the government to obey the laws it has sworn to uphold, is former New York state Sen. Joseph Bruno. Unlike many in the New York legislature today, Mr. Bruno, a fiercely Catholic conservative Republican, was a pillar of legislative integrity, known even to his political adversaries as a man of his word. Once you shook his hand, you could count on his compliance with the agreement sealed by the handshake.

The justice for which the former state senator sits and waits is not based on any novel or arcane legal argument or any legislative loophole. It is a principle of law as old and as revered as the country itself. It is the constitutional prohibition against double jeopardy. Simply stated, the Obama administration wants to try him twice for the same alleged events, and he has asked a federal appeals court to prevent it from doing so.

Here is what happened: In December 2009, Mr. Bruno was convicted by a federal district court jury in Albany, N.Y., of violating the federal "honest services" statute. Following the law as it then existed, the jury found that he failed to inform the state of New York — his employer in his capacity as a sitting state senator — that he was also employed elsewhere. Being a New York state senator is a part-time job, and virtually all sitting state senators have other employment. Nevertheless, by this failure, he supposedly denied the state his undivided, or "honest," services. He was not convicted of bribery; he wasn't charged with bribery. He was charged with and convicted of violating only this inane statute.

The statute is inane because it defies the age-old definition of "crime." Crime is harm — generally, harm to the public order. This honest services statute has permitted Mr. Bruno and others to be prosecuted, not because their behavior caused any harm but because of their silence. But the statute was more than inane. It was also unconstitutional because it punished silence, and silence is a natural right — for which we don't need the government's permission to exercise and, as a consequence, with which we cannot receive the government's heavy hand.

Last year, the U.S. Supreme Court unanimously invalidated the honest services statute and ruled that the failure of an employee to tell one employer of his employment relationship with another employer, without any palpable harm to either employer, cannot be a crime in America.

As a result of that ruling, a Manhattan federal appeals court threw out Mr. Bruno's conviction. In a fair world, that would be the end of his ordeal. However, the Obama Department of (political) Justice obtained an indictment against Mr. Bruno based upon the same set of facts that had formed the allegations of a violation of the honest services statute, but which it now claims constitutes bribery. The feds did this even though they had told the federal judge in the first trial nearly a dozen times that the state senator had not committed bribery and even though the witnesses who testified for the government in the first trial uniformly stated when asked that Mr. Bruno had not been bribed.

Mr. Bruno's attorneys saw right through this old trick — a trick that the kings of England played on their political opponents, including many Colonists. A trick so abominable that the framers expressly prohibited it in the Constitution. The trick is played when the government calls the old crime — the one for which the charges have ended favorably for the defendant — by a new name, and presto it can try the defendant again, even though it lost the first round. A federal judge in Albany bought this argument. His decision to let the feds prosecute Mr. Bruno a second time for the same events as were subsumed in the first trial is now under appeal.

Can the feds legally do this? In a word: no — obviously no. In the federal system, it is very rare for an appeals court to get involved in a case before the case has reached a conclusion in the trial court. The fact that the appeals court is even hearing Mr. Bruno's appeal at this stage — before any second trial has taken place — is a sign from the appeals court that the feds are not following the Constitution and the trial judge in Albany ought to have known that.

Joe Bruno, nearing the end of his distinguished public career at age 84, is now a symbol of fidelity to the Constitution and an obstacle to a political Department of Justice that lacks that fidelity. If the government can violate a principle as fundamental and universally accepted as the prohibition of double jeopardy — and do so in plain sight by changing the name of a charge — there is no limit to what it can do.

Before he became a tyrant, Abraham Lincoln was a successful trial lawyer. Demonstrating the propensity of an adversary to mislead, he once asked a jury, "If you call a tail a leg, how many legs does a dog have?" Then he answered: "Four, because calling a tail a leg doesn't make it a leg." Calling an old crime by a different name does not change its essence. A federal appeals court can put a stop to this miscarriage of justice, and it should do so before it spreads its ugly unconstitutional tentacles across the land and Joe Bruno has unwanted company.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the author of seven books on the U.S. Constitution, including his latest, "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom" (Thomas Nelson, 2012).

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