NEW YORK (AP) -- Federal prosecutors have ruined former New York City police commissioner Bernard Kerik's chances for justice in his corruption case by making public some of his conversations with his lawyers, his defense counsel says.
In a letter to the presiding judge in the case, attorney Kenneth Breen said prosecutors were "tainting the jury pool and irreparably harming Mr. Kerik's ability to obtain a fair trial.''
But Judge Stephen Robinson said Thursday that prosecutors acted properly.
"I have seen nothing that would come close to tainting the jury,'' Robinson said at a hearing in White Plains.
Kerik, the Rudy Giuliani protege who was briefly nominated for Department of Homeland Security chief, was indicted last month on charges including selling his office in exchange for $255,000 in apartment renovations, lying to the White House, filing false income taxes and avoiding the nanny tax. He has pleaded not guilty.
A week ago, prosecutors suggested to the judge that Breen has potential conflicts of interest and might have to be disqualified from representing Kerik, partly because he could be called as a witness. They said he could be subpoenaed to testify about what they claim were false statements made by Kerik during an earlier investigation by Bronx prosecutors into the renovations.
The judge said Thursday that even if Breen were not called, he might end up as "an unsworn witness.'' He imagined Breen cross-examining Joseph Tacopina, who was also Kerik's lawyer during the Bronx investigation and whom the prosecution plans to present as a witness.
Breen could be questioning Tacopina about a meeting that Breen also attended, the judge said, and "you may want to argue that Mr. Tacopina's take is different from what you believe. ... The jury will know you were there.''
The government did not claim that Breen has acted improperly. It said that Kerik's statements -- about the money behind his renovations and a loan application -- would not be covered by the lawyer-client privilege because they constituted obstruction of justice and were conveyed to prosecutors during plea negotiations.
Breen said prosecutors should not have presumed that the statements would be ruled admissible -- and should have filed their motion under seal rather than e-mailing it to the press. He said statements made during plea negotiations, for example, are inadmissible.
But the judge said judicial permission was not necessary.
He also refused Breen's demand to see the evidence on which prosecutors are basing the disqualification motion. Breen had insisted the government disclose, for example, records of any meetings involving Kerik and Bronx prosecutors and statements made by Tacopina to investigators.
Prosecutor Elliott Jacobson said Breen does not need to see documents to decide whether he has a conflict of interest.
The judge gave Breen until Friday to respond to the disqualification motion and scheduled a hearing for Dec. 17.
After the public court session, the judge held a secret session in his chambers with the lawyers -- but not Kerik. Afterward, without disclosing what the session was about, he said the reasons for secrecy outweighed the public's right to know.
Republican presidential candidate Giuliani, then New York's mayor, appointed Kerik police commissioner in 2000 and endorsed President Bush's 2004 nomination of Kerik to head Homeland Security. Kerik withdrew, saying he had tax issues involving his former nanny.
E-Mail Story
Print Story
