Tuesday, December 13, 2011

The dubious law that put Otto Kerner away

Posted By on 12.13.11 at 09:00 AM

kerner.jpg
The sentencing of Rod Blagojevich inspired the Tribune to take a trip down memory lane. As we all know, four of our state's last eight governors (before Pat Quinn) have been sentenced to prison—on Sunday the Tribune looked back at the first of these, Otto Kerner. Governor from 1961 to 1968, Kerner was a federal appellate judge when he was indicted for abuse of office in an alleged 1966 scheme to trade political favors for racetrack stock. Stephan Benzkofer's "Chicago Flashback" report told the tale.

But not well enough for one reader, Daniel Welch of Lombard, who e-mailed me to point out that Benzkofer "somehow manages to make no mention at all of the fact that the 'Theft of honest services' statute used to convict Kerner was subsequently ruled unconstitutional, only to be replaced by a revised statute which has also recently been weakened by Supreme Court rulings."

Welch is correct. But this vital subplot to the story of Kerner's fall from grace is so complicated it's no wonder Benzkofer didn't touch it. It's a story that would fill a book, and already has—Kerner: The Conflict of Intangible Rights (1999), by Bill Barnhart and Gene Schlickman. Because Benzkofer did tell us Kerner went to his grave insisting on his innocence, he arguably should have found the space (the art with the story could have been made smaller) to indicate why Barnhart and Schlickman reached the conclusion that "had he lived, Kerner almost certainly would have seen his conviction overturned."

Yet it wouldn't have been overturned because appellate courts were certain Kerner had done nothing wrong. And for that reason, it's possible they wouldn't have bothered to overturn it.

To summarize a column I wrote in 2004, Kerner, convicted in 1973, was done in by a new legal theory that U.S. Attorney Jim Thompson had teased out of the federal mail fraud statute—that Kerner had violated the people's "intangible rights" to honest and honorable service from their public officials. Under this theory, Thompson didn't have to persuade the jury with hard evidence that Kerner had extorted the stock or gotten it as a bribe. Denial of the public's intangible right to honest services is a more nebulous infraction, and evidence that nods and hints can carry the day even if it's not much harder than cotton candy.

The Supreme Court found the denial of honest services theory unconstitutional in 1987—not because the justices disagreed with it but because they could find it nowhere in the mail fraud statute. Congress then showed what it thought about the theory by promptly amending the mail fraud statute to restore it explicitly to criminal law.The words "intangible right of honest service" were added to the statute, and the theory went on to enjoy a long second life.

Various pre-1987 convictions, including the 1977 conviction of a former Maryland governor, were overturned because of the Supreme Court ruling. There was no way Kerner's could have been one of them—he'd died in 1976. And even if he'd still been alive, we can't be sure that his old Seventh Circuit appellate court would have lifted a finger to dismiss his verdict. As I wrote a couple of years ago, there are Seventh Circuit judges who believe some injustices are not worth bothering to correct, especially—it appears—when they think that despite the technical injustice the accused was guilty as sin.

But if Otto Kerner was vindicated on a technicality by the Supreme Court in 1987, he received more fundamental vindication in 2010. in June of last year, the Supreme Court, led by the openly hostile Antonin Scalia, who mocked the law as hopelessly vague, eviscerated the honest services statute by a vote of 9 to 0. A beneficiary of this ruling was the former owner of the Sun-Times, Conrad Black, who remains in prison for fraudulently selling off his newspaper empire only because an obstruction of justice conviction survived the Court's ruling. The other charges had accused him of denying stockholders his honest services as their CEO.

The original indictment against Rod Blagojevich had to be rewritten when denial of honest services was taken off the table. This made the prosecution of him more problematic, something I wrote about as his first trial was nearing an end. It would have been much easier, I wrote, to convict him of "a scheme to deprive the public of its 'intangible right to the honest services' of the governor. That's a charge that takes the question of profits off the table. If the jury decided the governor woke up each morning scheming and went to bed scheming it could find him guilty of failure to serve the public honestly even if the schemes all came to nothing."

Which, the governor's lawyers insisted to the juries, the governor's schemes all did.

Jim Thompson plays an interesting role in all this. In the Kerner trial, he put the intangible right to honest services on the prosecutorial map. Kerner's fall was Thompson's rise, and in 1976 he was elected governor, a post he held for 14 years. But in 2007, Thompson was deeply embarrassed. He'd been the chairman of the audit committee of Black's Hollinger International. He'd been the guardian at the gate supposedly guaranteeing that the shareholders' interests would be honestly served.

Stephan Benzkofer recalled in his Tribune story that six months after Kerner entered prison in 1974, Thompson asked that he be paroled. He argued that Kerner was in ill health, that he'd been punished by the devastating blow to his reputation, that there was no further deterrent effect to be achieved. Three decades later, Thompson similarly argued for mercy for the third in the parade of four governors, Blagojevich's immediate predecessor, George Ryan. He'd originally prosecuted Kerner, but he'd been in Ryan's corner from the beginning. The law firm he ran from 1991 to 2006, Winston & Strawn, defended Ryan, and when Ryan ran out of money went on defending him gratis.

This past weekend, at a brunch, I heard someone in county government pose an intriguing question: "Who will be Blago's Thompson?" In other words, what important and reputable public figure will step forward soon or ever to say Blagojevich has suffered enough and there's nothing to gain from continued incarceration?

No one could think of anybody.

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