GUILTY BY ASSOCIATION

The Albany Times Union recently reported that the prosecution in the criminal trial of Joe Bruno
intends to call several witnesses who are either convicted criminals or under indictment to testify
against the retired senator. The Senator’s counsel has moved to suppress the criminal histories,
immunity deals, cooperation agreements and pending charges pertaining to these five witnesses.
Four of the five were labor union officials and all conducted business in some capacity with Mr.
Bruno.

Under the Federal Rules of Evidence, the criminal history of a witness who is not the accused is
admissible to discredit the witness’s capacity for honesty if the crime was punishable by more
than one year in prison – in other words, a felony. This is termed impeachment. Effective
impeachment can neutralize the damage of a witness’s testimony by exposing him as a person of
poor moral character whose capacity to tell the truth is questionable. Liars and thieves are feeble
witnesses.

Impeachment evidence, however, is subject to the rules governing the admissibility of character
evidence. Evidence of a person’s character is never admissible to show a propensity or
predisposition to act in conformity on a particular occasion with that person’s past behavior.
“Propensity evidence” is mere power of suggestion and it is of no actual probative value.
Character evidence is admissible to prove other issues, but it is not admissible to show that one
acted at a certain time in conformity with past behavior.

The prosecution’s use of witnesses with convictions, indictments or plea deals should be
considered propensity evidence and excluded. Joe Bruno conducted business with labor officials
who either stand accused or convicted of crimes such as bribery and racketeering. However, the
government has conceded that Mr. Bruno played no role in those dealings, but this concession in
no way obscures the insinuation that a man convicted of bribery may very well have bribed Joe
Bruno, too. In other words, he probably acted in conformity with his prior behavior.

It is hard to ignore that this is the government’s underlying motive. The subject of their
testimony may very well concern other business dealings, but the message is clear. Joe Bruno
was doing business with crooks; how far is the logical leap to the conclusion that they acted
crookedly when conducting business with one of the most powerful men in the state? That
implication will stare down the jury until they reach a conclusion that no real evidence supports.
This is why the rule against propensity evidence exists. It helps prevent an unfairly prejudiced
jury.

The tactic is rather fitting with the theme thus far for it is Joe Bruno’s reputation that appears to
be on trial. The prosecution would have us believe that his stature as Majority Leader was of
such profound consequence that his “reasonably perceived ability to influence action would, at
least in part, motivate those he contacted to enter into financial relationships beneficial to his
personal financial interests.” In other words, his status as leader of the Senate constituted a
tacit threat in and of itself. His offers could not be refused. He is Don Vito Corleone.

Judge Sharpe must recognize that Joe Bruno’s right to a fair trial hangs in the balance of his
stewardship as a trial judge. To allow the prosecution to present irrelevant and misleading
evidence to the jury places that right squarely in jeopardy.