September 6, 2010

The High-Tech Lynching of Commissioner Keith Wasserstrom

When a prosecutor calls the charges levied against a conservative commissioner in a liberal county “novel,” you know that justice has run amok. But the extent of the miscarriage of justice in the Keith Wasserstrom case goes well beyond that definition.

Keith Wasserstrom was a city commissioner in Hollywood, Fla., in the southern part of Broward County. Nominally a Democrat, Wasserstrom was open in his support for the reelection of Gov. Jeb Bush in 2002. At the height of the Iraq War’s unpopularity, Wasserstrom was a lone voice in that party, reminding them of the national security reasons for the war. He knew that his popularity would suffer and he was kicked out of three Democratic clubs as a result. But he did not know the extent of maliciousness that was in store for him.

At the same time, federal agents were looking to prosecute crimes in Broward. One county commissioner with a past that swirled with rumors, and who was later indicted after a joint federal and state investigation, had been caught misusing funds without charges being laid. There were rumored backroom deals with school board members (one instance of which was later confirmed). Broward was working on establishing new ethics standards. But instead of promoting steps to actually curb corruption, certain officials decided to alleviate the pressure of never having prosecuted a Broward official by going after the one whose politics they liked least, a Democrat who showed voters how much their party had changed. The fact that he had done nothing wrong was a side matter.

I know that many Democrats believed then, and probably still believe, that support of the war in Iraq is a crime in and of itself. The votes of 25 Democratic senators to approve the war, all of whom had the same intelligence briefings that the UN and other international organizations had provided both the White House and leaders of Congress, would stand in the way of such an argument, as would the continued presence in Iraq under a Democrat administration. Either way, the Iraq War does not give license to go on a witch hunt against its supporters or to manufacture crimes against them.

Wasserstrom was charged with unlawful compensation for dealing with a client who provided him with no compensation on anything having to do with the City of Hollywood (that charge was thrown out by the judge due to its shear ridiculous nature). Prosecutors piled on four ancillary charges in the hopes of exacting a deal, two counts of filing false forms and two counts of getting the mayor to as well. The fact that these forms were recusal forms, meaning that they explained why Wasserstrom did not vote on the project, was all but overlooked. The city attorney called the charges “a miscarriage of justice.”

Specifically, the charges against Wasserstrom centered around a deal between the City of Hollywood and Schwing Bioset, a company that converts waste into fertilizer. The company has been hired by several cities. It is not the cheapest company to offer this service, but cities contract Schwing Bioset because of its unique track record and clear abilities to perform. Wasserstrom’s firm represented the firm, with a clause in their contract specifically excluding his firm from compensation for any Hollywood deal. This measure was not necessary. All Wassserstrom would have needed to do is to recuse himself from any Hollywood vote. Conversely, based on his fee exemption, Wasserstrom could have legally voted on the Hollywood contract.

In an abundance of caution, Wasserstrom both excluded himself from any gains resulting in the City of Hollywood contract and from voting on the contract. He was upfront about his firm’s relationship with the company. He broke no laws and did nothing untoward.

Although the judge threw out the main charge, the ancillary charges made the jury believe that something was wrong. After all, who is charged who has committed no wrongdoing? This is a dangerous supposition that assumes guilt at the onset and stands in stark contrast to the rule of presumption of innocence. If we believe that all who are charged are in fact guilty at onset, then how can anyone ever have a fair trial? But the pile on of charges led the jury to conclude that “something must have been done” and that it was reasonable to find that Wasserstrom should have at least made the forms more clear and detailed.

The jury overlooked that recusal forms are just that, forms - not biographies. They are filed after the fact and list a brief reason why the commissioner who filed them recused himself from the vote. They are not detailed explanations. They simply state that so and so recused himself of a vote and why. It’s impossible to have criminal intent in filing such a form, as no gain is garnered by their filing. Moreover, in the Wasserstrom case, the City Attorney had filed one of the forms himself. But juries that suppose that the defendant must have done something to be hauled into court have often seen otherwise. At least one Wasserstrom juror said that none of them felt good about convicting him, but felt unclear about the case. This speaks to the surreal nature of the charges, not to his guilt.

The assistant state’s attorney who prosecuted the case called the Wasserstrom conviction “novel.” There is nothing noble about “novel” prosecutions. All that means is that the charged person had no way of knowing that his/her actions would be considered illegal and that the actions undertaken were never before considered criminal. It’s the definition of prosecutorial overreach.

The case should have never been brought and should have been thrown out when it was. It’s the latest in the attempt by the left to hijack the right and to stifle dissent. And it was followed up by the unfair, unfounded and unjust charges against two Republican commissioners in another Broward city for allegedly violating Sunshine Laws (laws preventing commissioners from discussing city business outside of a public forum) in a he said/he said case that was actually dismissed and resulted in an assistant states attorney who was also a state representative attending the latter’s vindication party.

We must all stand up against injustice, against the targeting of innocents and against the besmirching of a fine public servant like Keith Wasserstrom, for no other reason than that of agenda driven politics.

Some additional shocking legal facts:

Wasserstrom followed the advice of the City Attorney all along, from drafting the clause in the engagement letter to filling out the recusal form. Although the City Attorney advised the Mayor and Wassserstrom that they had no legal conflict of interest, they both chose to recuse themselves to avoid any appearance of impropriety. The City Attorney backed up his opinion with a legal memo that explained that Florida law only requires the disclosure of conflicts that would benefit the elected official.

The prosecution, recognizing that the main charge of unlawful compensation was absurd on the face of it, contended that Wasserstrom stood to gain from Hollywood, because another city may choose Swing Bioset because they will have had a track record with Hollywood. The prosecution recognizes that even this far fetched scenario would be legal, as Wasserstrom had recused himself of the vote. They contend that the illegal act was that he didn’t specify this in the recusal forms, the forms that are filled out after the fact and detail briefly why he didn’t vote on the deal. Never mind that Swing Bioset could point to numerous other contracts that it’s performed well before meeting Wasserstrom or Hollywood. How filing a form after the fact results in unlawful compensation is too twisted to describe in words.

Nonetheless, the City Attorney forewarned against this assertion as well, citing that Florida does not consider as a benefit anything that is contingent, speculative or remote. The fact that anyone would be able to go to other cities and say “Hollywood uses Bioset” was a benefit that was remote, speculative and contingent. First, their work had to be successful in Hollywood in order for there to be any benefit. Second, Wasserstrom would only benefit if Bioset continued to retain the marketing company that hired his firm—as his firm was engaged by the marketing company for Bioset, not Bioset itself. Bioset could have fired the marketing company, or the marketing company could have fired his firm, at any time. Third, there would only be benefit to his firm if the city, municipality or county being offered the services chose Bioset after an extensive and expensive request for proposal process - remote, speculative and contingent.

Regarding the piling on of charges and how it seems to have influenced the jury, one other point stands out. Wasserstrom was charged not only for failing to provide a rendition the size of War and Peace on a simple recusal form, but also for the Mayor having done the same. By contrast, the Mayor was not charged at all. In reality, neither should have faced such absurd charges, but this just shows the malicious nature of the Wasserstrom prosecution. Of course, the jury could find no reason to believe that Wasserstrom had influenced the Mayor (and the prosecution could offer none), and acquitted on those charges, but chose to convict on his own forms, under the actual (if not the legal) premise of “I guess he could have been more specific,” a supposition that should never justify a conviction and that in fact convicted an innocent man.

Further, Wasserstrom was charged with filing his form (and the Mayor’s) and then charged again for an amendment to his firm (and the Mayor’s). By all interpretations of the law, even if there would have been impropriety, that would have been one act, one conviction. The amendment clarified that Wasserstrom’s firm did not work for the marketing company, Bionative Technologies which was the marketing company for Schwing Bioset, but for a local Florida company retained by Bionative. It was technical in nature and of course, had no bearing on whether he’d receive compensation or any criminal intent. How correcting the name of a marketing company on a form led to two separate counts brought is unbelievable.

The absurdity is that all of the above, his entire prosecution, related to his filing of recusal forms, forms filed days or months after a commissioner properly recuses him or herself of a vote due to potential conflicts. It’s the first such case that has been handled in such a way, and it’s a crying shame.

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