When the U.S. Supreme Court ruled last year that the “theft of honest services” portion of the federal mail and wire fraud statute was unconstitutionally vague, many people who had been convicted under that statute won the right to have their convictions vacated via federal appeals. Many of those are public figures, as the “theft of honest services” doctrine was commonly used in cases involving alleged public corruption.

It is perhaps not surprising that both prosecutors and the public are unsympathetic towards defendants who have been convicted of corruption. Even though the Supreme Court has determined that the “theft of honest services” is far too vague to clearly delineate what was supposed to be illegal, the fact that a public official has been convicted of something is often enough to justify a scramble to re-prosecute.

Such is the case of former state senator Joseph Bruno of New York, who was convicted of eight counts of mail fraud, wire fraud and accepting bribes last year under the “theft of honest services” doctrine. At least two of those convictions now must be vacated, but the U.S. Attorney in New York State wants to bring a fresh indictment against Bruno and retry him on the other counts.

If a criminal defendant is freed because he was convicted under an unconstitutional statute, should the prosecution get a ‘do-over’?

Bruno’s criminal defense lawyer argued before a federal appeals court panel that, without the “theft of honest services” doctrine, the prosecutors simply do not have enough evidence to prove the other six counts of fraud. In fact, the “theft of honest services” language has in some cases been used as a “catch-all” charge when prosecutors didn’t have the evidence to prove fraud directly.

The U.S. Attorney’s Office agreed that the two “honest services” convictions must be vacated, but argued that the appropriate thing to do in the other six cases is to retry the case.

One of the federal judges seemed to agree with the defense that the prosecution may have used the “honest services” language as a catch-all — and might still be overreaching by throwing in every conceivable argument on which they might pursue Bruno.

“You have a 30-page kitchen sink indictment with facts about this and facts about that,” the judge pointed out to the prosecutor during oral arguments.

The big question is this: If the federal government uses an unconstitutional statute to convict someone of a crime and gets called on it, should they lose their chance or should they get a do-over?

“You took direction A and it failed, and now you want to shift gears and put this man through another six-week horrendous experience of a criminal trial?” asked the judge.

A ruling on whether Bruno will be retried is expected sometime in the next few weeks.

Source: Westlaw News & Insight, “No new trial for former state senator, lawyers ask,” Basil Katz, June 17, 2011