Whoa.  Hold on a second.  While I take no issue with the judge’s assessment of Kerik’s character, he tossed him in jail for exercising his right to speak?  Even worse, for his supporter, Modafferi, exercising his right to express his views?  Since when does Bernie exercise mind control over another human being?

In recent weeks, prosecutors discovered that Modafferi wrote anti-prosecution screeds on a Web site linked to Kerik’s defense fund site.

They said Kerik was also using Twitter to refer supporters to Modafferi’s site.

In one entry the judge quoted, Modafferi wrote, “In a heavy-handed attempt the government gave Kerik an ultimatum, plead or the government will do everything in its power to destroy Kerik and his family.”

So what?  Bernie twitted.  It’s not like he’s Rex7, for crying out loud.  And even if he was, what of his right to defend himself against the plethora of accusations against him. 

What’s curious is the judge’s framing the issue in terms of Kerik’s failure to believe that the rules apply to him.  These would be the same rules that permit the United States Attorneys office to issue press releases about how they have captured another heinous criminal on the verge of destroying our nation?  It seems to me that, this time at least, Bernie’s playing it exactly as the rulebook says.  At least if the rulebook is the U.S. Attorneys’ Manual.

Of course, the invocation of twitter is a new wrinkle, and one that demands further scrutiny.  As I’ve explained often, judges tend not to be early adapters, Alex Kozinski notwithstanding.  Judge Robinson apparently viewed Bernie’s use of twitter as an affront to the dignity of the court.  While it may be an affront to something, like sound judgment for someone who doesn’t want to be taken as a total goofball, Bernie was a twitter n00b. 

With a total of 232 followers, and 165 twits before falling silent from the bowels of Valhalla, Bernie’s twitting wouldn’t have impacted a flea.  His followers, aside from some lovely young ladies with dorm cams, are what you would expect, the castraltos in the choir singing their sycophantic Hosannas.  Who cares what he twits to them?  They’re gonna love Bernie no matter what, and they certainly aren’t going to find a seat on his jury.  Let’s get real.  I know it’s hard to believe that Bernie has fans, but even Ted Bundy had his supporters.  We’re a perverse species, you know.

It would be far more compelling if Bernie had a list of the venire and was knocking, door by door, to meet and greet.  But to jail Bernie because of the “toxic” combo of his twitting, and Anthony Modafferi ranting online, reflects either a grossly exaggerated understanding of the power of the internet, or a refutation of free speech.  There are a lot of people who believe that the government uses its overwhelming might to coerce guilty pleas at the expense of the destruction of a defendant and his family.  This isn’t a novel concept, and finds some very rational support amongst a particular universe of folks who have had the pleasure of attracting the government’s attention.

As should be clear, I’m not Bernie Kerik’s biggest fan.  Indeed, it might reasonably be said that I will ridicule him at the drop of a hat.  But even a mutt like Kerik is entitled to exercise his rights without fear of being jailed.  Certainly a third party to the proceeding, Modafferi, no matter how misguided his allegiance, can speak his mind on any darn subject he wants, including the persecution of Bernie Kerik if that’s his view. 

But most of all, if we’re going to raise the issue of the rulebook as a justification, then instead of calling his roommate Odin, Bernie Kerik should refer to him by his formal title, Assistant United States Attorney.