Bernie Kerik’s white-shoe criminal defense lawyer, Kenneth Breen, tried a new tact last week.  He argued to Southern District Judge Stephen Robinson that prosecutors “poisoned the well”   According to this Newsday report, Breen complained that the government, in a letter submitted to the court, argued:

that the statements — about the money behind Kerik’s 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.

The defense position was that they should not have disclosed the statements in a public document, since they statements had yet to be held admissible and the cat was now out of the bag.  It’s a well-taken point, but it was taken in the wrong direction.  Breen pushed the position that the release of these statements had tainted the jury pool and denied Bernie the ability to obtain a fair trial.

The prosecutor’s response is precious: Defense arguments are “entirely baseless and unfounded.”  In case you are wondering, no, the defense could never get away with a response that is wholly conclusory and devoid of any substance whatsoever.  Only the prosecution gets to make statements like this, so don’t try this at home.

Now, this prosecution is happening in the Southern District of New York.  There are more media outlets here than anywhere else on earth.  We have at least one daily newspaper for every 12 citizens, and each newspaper has to come up with lots of stories every day to fill up all those otherwise blank pages.  So, there tends to be plenty of “crime” news every day, because the media follows the sacred creed, if it bleeds, it leads.  Also, if you were appointed by Guiliani, you get a colonoscopy.  That sorta rhymes, right?

Needless to say, the defense argument was rejected and Breen got smacked.  Here’s a point that every criminal defense lawyer who does high profile work in New York City knows:  It’s almost impossible to poison the well in the Big Apple.  Why?  First, we have too much poison, and second we have too big a well.

The human brain has mutated to the point where it can input critically important information and hold it for 30 seconds, and then excrete it out the other end.  This is particularly necessary with criminal information, because there is another sensational crime every 30 second.  In the scheme of things, news about Kerik is small potatoes, filler or fluff.  At least for now.  Bernie is now just a has-been screw up who is accused of second-rate graft.  If it wasn’t for Guiliani, no one would know he was alive.

But the defense aspect of this case shows why white-shoe ex-prosecutors don’t necessarily adapt well to the defense side of the well.  There may well be a time when jury taint becomes a real issue in this prosecution, with Rudy still in the running for the Republican nomination despite his love-costs as Mayor.  It’s possible that Rudy could actually get the nomination.  At that time, his judgment about Bernie Kerik, tossed off as a lousy job of vetting at the moment, may become the subject of major scrutiny. 

Should that happen, and it’s a real possibility, then Bernie Kerik may have a real argument about a tainted jury pool.  While the argument had no chance now, and indeed wasn’t even close to being a viable argument given Bernie’s status as a gnat in the Guiliani story, it was silly to waste it.  There aren’t that many weapons in the criminal defense lawyer’s arsenal that you go around blowing them for nothing. 

It appears that Kenneth Breen is operating under the common mistaken belief that he’s still got the weight of the government propping him up.  He thinks he can make arguments that consist solely of words like “baseless and unfounded” and get away with it.  Nope.  That’s for prosecutors, not the defense.  We act strategically, and we have to avoid wasting ammunition firing at shadows.  There aren’t that many bullets in our gun.

It’s nice to be a federal prosecutor, with a never-ending stock of weapons to use against a defendant.  But if you want to be a criminal defense lawyer, you need to understand that the courts are no longer your best friends and that you can no longer close your eyes and shoot wildly, hoping to hit something.

Stay tuned for more of “The White Shoe Criminal Defense Follies,” and see how Biglaw handles trench warfare.