Westchester Guardian/The Court Report.

Thursday, January 8, 2009

The Court Report
By Richard Blassberg

Kerik Returns To Federal Court
Former New York City Police Commissioner Arraigned On
“New And Improved” Indictment
United States District Court, White Plains
Judge Stephen C. Robinson Presiding

The pretrial hearing got underway in Judge Robinson’s Court at 10:10am last Monday morning, December 29th. Bernard Kerik, former Commissioner of Corrections and former Police Commissioner for the City of New York, was present with Attorney Eric Tirschwell, of Kramer,
Levin, New York City, as well as Assistant United States Attorney Elliott B. Jacobson, for the purpose of re-arraignment of Kerik on a superseding
indictment, one that would replace the original indictment handed up in November 2007.

Judge Robinson opened the proceedings with, “We have a bunch of matters to take care of today. My understanding is that since we were
last together, there has been a superseding indictment of Mr. Kerik.” The Judge then asked Defense counsel, “Mr. Tirschwell, is Mr. Kerik prepared to be arraigned?”

The Defense attorney responded in the affirmative, and Robinson began a direct inquiry of Kerik. The Judge quickly established that Kerik, who is 53, had achieved a Bachelor of Science degree, and was currently self-employed.

Robinson then asked, “Are you under the care of a doctor?” to which Kerik responded, “No, Sir.” The Judge asked about a possible psychiatrist, to which Kerik again said, “No, Sir.”

Kerik assured the Judge, when asked, that he was satisfied with Attorney Tirschwell’s and Attorney Burke’s representation. The Judge then asked, “Do you want to have the superseding indictment read in Court today, or would you prefer to waive the reading?”

Kerik responded, “I’ll waive it, Your Honor.”

Robinson then began questioning Kerik’s written conditional Waiver Of Venue, acknowledged by Kerik, ostensibly waiving his Constitutional right
to be prosecuted in the District of Columbia for Counts 14 and 15 of the new indictment, which involved his alleged lying to authorities when he was under consideration to be the head of Homeland Security in Washington, D.C.

Robinson then read the Waiver of Venue to the Defendant, detailing the Waiver of Counts 14 and 15 from having to be tried in Washington,
D.C. The Judge wanted to be absolutely certain that Kerik fully understood that Counts 14 and 15 could be tried separately from, orjointly with, the other counts of the new indictment, even though tried in New York. He went further, asking Kerik, “Were you pressured, or coerced, or threatened in any way?”

Kerik responded negatively. Assistant United States Attorney Jacobson then said, “Rule 18 specifi-cally provides the Government must prosecute the offense in the District where it is alleged the offense was committed.”

Then Attorney Tirschwell broke in with, “There is a scenario under which, if the Court does not agree to sever Counts 14 and 15, we could
opt to be tried in the District of Columbia.”

To that news, Robinson then responded, asking, incredulously, “If the Court does not agree to sever Counts 14 and 15 from the rest of the indictment, you then would have the ability to have those Counts tried in the District of Columbia?”

Tirschwell answered, “Yes, Your Honor.”

At that point, Robinson began to display his displeasure with the arrangement the Government had signed on to, turning to the Defense table and declaring, “What this, in effect, does, is grant the Defendant an advisory opinion. I am not going to agree to this.”

He went further, “I have no interest one way or the other. I have more things to do on my docket than to take the time to write a decision that
you can then play around with.”

Then, still speaking to Defense Attorney Tirschwell, he said, “You’re right, you have an absolute right to make your decision about waiving
venue. But, you will make that decision before I make any decisions.”

Robinson then turned to the Prosecution, asking, “Mr. Jacobson, separate from Counts 14 and 15, can you tell me what is new in the superseding indictment?”

Jacobson then proceeded to discuss Counts 7, 9, 11 and 12, detailing the charges as they involve false statements, the use of a BMW Sedan, rewording of a false statement charge, and the combining of some original Counts by way of consolidation to avoid duplication.

The Judge then asked, “Perhaps you and Mr. Tirschwell can give me some advice. The Defense had made an Omnibus Motion that does apply
to this new motion?”

Jacobson volunteered, “The only tactical effect this new indictment has, with respect to their Omnibus Motion, involves issues of duplicity. Back in July the Court asked what issues the Defense contemplated. It appeared duplicity might have been an issue.” Jacobson then changed gears, and apologetically alluded to “the large volume of material from the defense.”

Robinson then drew a laugh, quipping, “Perhaps your papers were so bad that it required a voluminous response.” Tirschwell jumped in with, “Our position was that with the exception of a tax issue, the charges were essentially the same.”

Robinson then instructed Tirschwell, “Please flag those arguments that pertain to the new issues, both for the Government and my own purposes.” He then turned to Kerik and said, “As the Waiver of Venue document is currently constituted, I do not accept it.”

Kerik responded, “I understand.” Then, moving on with the proceeding, Robinson declared, “I am going to find that Mr. Kerik is capable
of entering a plea to Indictment 1027.

How do you plead, Mr. Kerik?”

Kerik responded, “Not guilty, Your Honor.”

Robinson then moved on, stating, “Let us deal with other issues. Let us now discuss modification of bail.” He asked, “Is it fair to say nothing
has occurred that would have implications?” He went on, “I have more confidence than the Government that Mr. Kerik understands
what the Court’s expectations of him are.”

Looking toward Defense Counsel, Robinson asked, “What is Mr. Kerik’s state of knowledge when he does what he does?” I don’t want to
craft an order that would allow Mr. Kerik to dance between the raindrops.”

He then concluded, “Very quickly, we will get an order in place.” Robinson gave the Defense till the 23rd of January to produce their papers in response to the new indictment, setting February 3rd at 10am for the next Court appearance. Kerik, who had rushed past reporters entering the Courthouse, now did the same as he emerged and departed without a word to waiting media.

Analysis:

Seated in the court room, one got the impression that the Government, by its superseding indictment, intended to refasten their accusations
to that which is left of Bernie Kerik, with longer nails than they had originally used. Yet, in that same effort, there remained a trace of celebrity worship, à la Marion Jones, a failure on the part of Assistant United States Attorney Elliott Jacobson & Co. to drive a hard-enough bargain over issues such as the Waiver Of Venue Agreement. That agreement so clearly favored Defendant Kerik, and so disappointed Judge Robinson that he strongly expressed his unwillingness to adopt it.