Unless you read niche political and professional publications online you probably missed my revelation this week that federal authorities secretly pressured former New York City Police Commissioner Bernard Kerik to plead guilty to corruption charges last fall by suppressing testimony from a key defense witness.
On April 7, I reported in Nieman Watchdog (not affiliated with Connecticut Watchdog) that prosecutors essentially won their case last fall in the aftermath of secret suppression proceedings. U.S. District Judge Stephen Robinson of White Plains, NY, who was Kerik’s trial judge and also and the Clinton administration’s Democratic U.S. attorney supervising Connecticut cases from 1998 to 2001, ordered the testimony kept secret, and then jailed the defendant for the duration of the pretrial period.
The judge also pressured for shutdown of Kerik’s defense fund and for his defense attorneys to be removed. Kerik gave up and pled guilty Nov. 5 to corruption charges after being kept in 23-hour-a-day lockdown. During that jailing, Kerik’s mental health records released to the press and his funds were running out for new lawyers and to provide for his family. Robinson imposed a four-year prison term Feb. 18, with Kerik on home detention until he reports to prison May 17.
What triggered the plea after millions spent by the defense in pretrial preparation? Evidence points to the judge’s secret decision in September that Kerik’s jury couldn’t handle testimony that a former New York City inspector general was saying authorities had pressured him to lie to a grand jury to implicate Kerik falsely.
That this suppression is coming to light only now in such a major case is the focus of my column today on how journalists from cash-crunched news organizations are increasingly spoon-fed the news by authorities.
Here’s the gist: Michael Caruso, a New York inspector general for 17 years, filed a lawsuit in 2006 claiming that he was fired because he would not falsely tell a grand jury about suspicious words from Kerik, which Caruso could not recall.
The judge overruled defense arguments that Caruso’s testimony was “central” to a defense to show prosecutor’s aggressive tactics in creating a baseless case. Instead, the judge agreed with prosecutors that the evidence, although relevant, might inflame jurors against authorities, or else waste courtroom time.
The judge then ordered the materials secret, and punished the defense for an email that a friend of Kerik’s sent to a Washington Times reporter in September mentioning Caruso.
The full-story is here in Nieman Watchdog, a free online publication funded by Harvard for distribution to journalists and others with a similar interest in public affairs. As a sign of the times, its editor is Barry Sussman, the Washington Post’s city editor during the 1970s. Sussman is well-known in journalism circles as the main editor who guided the Post’s Watergate reporters Bob Woodward and Carl Bernstein on a daily basis.
A Google search of follow-ups to this week’s Nieman story shows that pick was sporadic and from highly diverse publications.
The longest and most prominent original article was by the Newsmax, “Harvard’s Nieman: Kerik Case Suppressed Evidence.” The conservative Newsmax was among the few news outlets during the run-up to trial who stood against conventional wisdom on the issue of Kerik’s guilt after hundreds of pretrial news stories and blogs by others adverse to the defendant. It was not afraid also to ignore a tradition that on-air remarks by TV commentators or online investigative reporting are not generally newsworthy. Newsmax quoted Fox News host Geraldo Rivera as saying the judge should recuse himself recuse himself for behavior he described as a “travesty” of justice.
Several progressive email lists or web-news publications also covered the Nieman story this week. One, for example, was “News from Underground,” a progressive national email list edited by Mark Crispin Miller, a New York University communications professor. Another was, for some reason, the website of the Clermont County Democratic Party in Ohio.
Perhaps I missed it, but my search failed to locate significant follow up by mainstream wire services, newspapers or broadcasters that had closely followed the accusations against the former Bush cabinet nominee and long-prominent New York Republican official.
I can understand the reasons. As ever, prosecutors get the initial advantage in coverage with indictments. Reporters often flesh out the formal indictment for with colorful details they pick up on their own, or from law enforcement leaks. This is particularly so when a celebrity defendant such as Kerik has become involved with others who are well-known. In his case, his mentor was former mayor and 2008 Presidential candidate Rudy Giuliani, his publisher and former lover was celebrity editor Judith Regan, and one of his wiretapped friends was Westchester’s district attorney and TV commentator Jeanine Pirro.
Defendants are foreclosed by pretrial rules from vigorously arguing a defense, particularly when important evidence is sealed, as in this case.
If defendants then plead guilty, as some 95 percent of federal defendants do, then the public never hears the other side of the story. This is because during and after a plea a defendant must show strong remorse, or else face severe extra punishment from the judge at sentencing.
Once this “Kabuki theater” has played itself out, time-pressured reporters at financially troubled news organizations typically have scant opportunity to revisit any documents that, as here, are unsealed after the end of a case.
That’s the way it is, as Walter Cronkite used to say.
But it’s not necessarily the way it always has to be. Cases like Kerik’s reported to me with increasing frequency from Alabama and elsewhere around the country have prompted me to found the Justice Integrity Project to provide cutting-edge materials convenient for journalists and others in the public.
Working with such organizations as Connecticut Watchdog and Nieman Watchdog on a case-by-case basis in hopes of meeting their standards, our project will make it more feasible for mainstream journalists and bloggers alike to research the news. These white-collar cases are inherently complex ─ and often momentous. The public deserves the full record.