Bill Singer Criticizes US Prosecutor For Expressing Disappointment With Jury's Not Guilty Verdict

November 16, 2011

On November 10, 2011, the United States Attorney's Office for the Southern District of New York issued a press release: STATEMENT OF MANHATTAN U.S. ATTORNEY PREET BHARARA ON THE ACQUITTAL OF WILLIAM BOYLAND, JR. at . The entire text of the release is as follows:

We are disappointed by today's acquittal of William Boyland, Jr. but respect the jury's verdict, and we remain absolutely committed to pursuing public corruption in Albany and elsewhere . I want to thank both the jury for their service and the fine career prosecutors from my office who prosecuted this case for their hard work and dedication.

This is an awkward moment for me because notwithstanding that I straddle the line in my law practice - I represent Wall Street defendants and public investors, as well as industry whistleblowers - I'm actually a fan of Preet Bharara. Having had the pleasure and displeasure of dealing with the US Attorney's office in SDNY, I've seen quite the array of leadership.

Without question, since my admission to the Bar in 1985, no one has managed that office better than Bharara. He gives credit to his hardworking staff rather than pretends that he was in court arguing the cases. He tends to speak in moderation. Unlike some of his predecessors and colleagues around the country, he largely seems to court the spotlight based upon accomplishment rather than staged press events.

You will note that I have not opted for any ifs or buts. If I were to rate Bharara from my perspective as a public advocate and as an industry defense lawyer, I give him an A.

I find it unfortunate that I now have to take Bharara out back to the woodshed.

Unsealing the Complaint

On March 10, 2011, Bharara's SDNY office issued a five-page press release: MANHATTAN U.S. ATTORNEY ANNOUNCES FEDERAL CORRUPTION CHARGES AGAINST TWO MEMBERS OF THE NEW YORK STATE LEGISLATURE / Six Others Charged In Bribery Schemes, Including Albany Lobbyist, Two Hospital CEOs, Healthcare Consultant, and Real Estate Developer. In relevant part, the release announced the unsealing of a criminal:

Complaint charging New York State Senator CARL KRUGER and State Assemblyman WILLIAM BOYLAND, JR., with accepting bribes in exchange for official acts . . . DAVID ROSEN, the CEO of the MediSys Health Network, is also charged with conspiring to bribe KRUGER, as well as with paying over $177,000 in bribes to New York State Assemblyman WILLIAM BOYLAND,JR., and $390,000 in bribes to former New York State Assemblyman Anthony Seminerio, in exchange for their official acts."

In this same release announcing the filing of the Complaint, Bharara is quoted as saying:

Today's Complaint filed in Manhattan Federal Court describes a broad-based bribery racket reflecting an unholy alliance of politicians, lobbyists, and businessmen. Every single time we arrest a state Senator or Assemblyman, it should be a jarring wake-up call. Instead, it seems that no matter how many times the alarm goes off, Albany just hits the snooze button. Maybe this time they will get the message.

Talk about going all-in on your bet. Bharara has laid it all on the line - his office is going after a broad-based bribery racket, an unholy alliance.  Moreover, he spelled it out: This is a case designed to send a message!

Verdicts

Rosen

After a three-week bench trial before Judge Jed Rakoff, on September 11, 2011, Rosen, 63, of Westchester County, was found guilty of two counts of honest services fraud in connection with his efforts to bribe Kruger, Boyland, and Seminerio. Also, he was convicted of one count of honest services fraud conspiracy (with Boyland); and two counts of conspiracy to commit bribery and to violate the Travel Act. Rosen faces a maximum of 70 years in prison; and on each count: three years of supervised release and a fine of$250,000, or twice the gain or loss from the offense. was found guilty.

Seminerio

Seminerio pled guilty to one count of honest services fraud and was sentenced in February 2010 to six years in prison. During the appeal of his conviction, Seminerio died and the cause of action against him was abated.

Boyland 

After three days of deliberations, the Manhattan federal jury considering Boyland's guilt remained deadlocked. Following instructions from Judge Rakoff to try and reach a verdict, the jury came back with "Not Guilty."

At The Woodshed

And now for my woodshed moment with US Attorney Bharara.

Prosecutors unleash quite a formidable arsenal against criminal defendants, whom the law says are presumed innocent - as in, until such time as a prosecutor proves them guilty beyond a reasonable doubt in a court of law (or they plead out).

What are some of the arrows in the prosecutor's quiver to be unleashed against those presumed innocent? Let's see - you got your humiliating perp walk, hands cuffed as you're taken for a stroll through a gauntlet of photographers. You look guilty on the evening news. Your photo in the day's papers presents you as a crook. Not much in the way of a presumption of innocence in that staged event, is there?

Then you got the issuance of a criminal Complaint, followed by the issuance of a criminal Indictment, sometimes followed by the issuance of Superseding Indictments. You read those pleadings and they don't leave a lot of room for any presumption of innocence. Most of the named defendants come off as human excrement.  It's one accusation and allegation piled on top of each other, and no punches are pulled.

Ah, but we're not done. Then there are all the press conferences with the charts and the repetition of the allegations. Nary a word is said, much less convincingly, that there's a presumption of innocence.  We got 'em. We're gonna convict 'em. We're gonna send 'em away for a long time.

Now, don't get me wrong, I fully underst

and and respect that our judicial system is an adversarial one. However, it shouldn't always be a contest focused on winning, but it should be focused on producing a just verdict. In fact, most Codes of Ethics as they apply to prosecutors codify that obligation - to seek justice.

Consequently, I find it offensive that a federal prosecutor filed a criminal case, staffed it with a competent group of attorneys, presented the best evidence at hand, but just won't let it go after a jury returned a "Not Guilty" verdict.

Bharara's comment: "We are disappointed by today's acquittal of William Boyland, Jr.. . ." is absolutely unacceptable and I believe diminishes his office and brings some discredit to our judicial system. Prosecutors must have some faith in the integrity of the jury system.  To say that you're disappointed by the acquittal raises troubling questions about whether the jury got it right.  Frankly, if you're going to crow every time you win a jury verdict, there has to be some acceptance when you lose one.

Under no circumstances do I think it appropriate for a US Attorney to express disappointment with a duly rendered jury verdict. Given how much of the criminal prosecution process is weighted in favor of prosecutors, we need to respect acquittals. Moreover, it's unseemly for a prosecutor to try and get in one last kidney shot at a victorious defendant.

Without question our judicial system has its flaws: innocent folks are found guilty and guilty folks are found innocent However, as I've said on television, most laypersons don't realize that there are only two criminal verdicts: Guilty and Not Guilty. Defendants don't have to prove that they're innocent. Prosecutors have to prove guilt.

Sometimes prosecutors are just not up to the task in a given case and lose, sometimes the same applies to defense counsel. Sometimes cases aren't decided on the facts but on bias, sympathy, and all the other human follies and foibles that each juror plops into their seat as they listen to the evidence unfold.

Nonetheless, like in a boxing match, once the bell rings for the last round and a winner is declared, the two combatants should simply shake hands and get on with their lives. If they want or can reschedule another fight, so be it. Otherwise, once you've had your day in the ring or your day in court, have the good grace to accept victory or defeat and exit the arena with some class.

And, by the way, I take tremendous personal satisfaction in having flagged this very case in March 2011 as presenting an uncomfortable game of high stakes poker that has now unfolded with the US Attorney's humbling loss.  Please read: Corrupt Politics, Endless Prosecutions, and Insanity ("Street Sweeper" March 14, 2011).  Let's just say, I warned them.

Sorry Preet, but this time I think you erred. Otherwise, keep up the good work.