For reasons set forth in last week's column, it appears that Michael Grimm, Staten Island's Congressman and the only Republican in the city's delegation, has been targeted by federal prosecutors for who he is rather than anything he may have done.
While, in a lay sense, this smacks of a selective prosecution, something forbidden by the Constitution, it does not rise to that level under law.
Prosecutors not only enjoy extremely wide discretion in determining whom to investigate and prosecute, but are also clothed with a strong presumption that they do so honorably.
Which is why, in 1985, the U.S. Supreme Court stated that the judiciary should hesitate to examine the basis for a criminal prosecution lest it "unnecessarily impair the performance of a core executive constitutional function."
Still, since a true selective prosecution is a denial of equal protection under law, the courts will sustain such a claim in those very narrow circumstances where its exacting components are established by "clear evidence."
At a minimum, this requires proof that other individuals, similarly situated, were left alone while the defendant, because of some discriminatory classification or other arbitrary standard, was singled out.
Illustrative is an 1886 case in which the Supreme Court invalidated a San Francisco ordinance that prohibited the operation of laundries in wooden buildings. The court cited indisputable evidence that the law was being applied against Chinese nationals but not against other laundry owners.
Even though a person alleging selective prosecution shoulders the heavy burden of establishing it, he cannot use discovery procedures to scour through the internal operations of the prosecutor's office in search of evidence to support his claim.
Thus, unless it's obvious that the defendant has been targeted while others similarly situated have not been bothered, his claim of selective prosecution will fail. Citing Grimm for hiring illegal immigrants, the government alleges that he underreported wages and revenue in connection with a restaurant that he owned prior to becoming a member of Congress.
Some have countered that many, if not most, business-owners do the same thing and get away with it.
Such generalized assertions don't come anywhere close to the stringent proof necessary to establish a selective prosecution.
Moreover, even if political considerations motivated the investigation into Grimm's former restaurant, and dictated the suspicious timing of the indictment, these factors do not constitute a selective prosecution as that term is defined under law.
Therefore, absent an unanticipated plea bargain, Grimm will have to defend himself on the merits.
Any high-profile case involving allegations of tax evasion is especially important to prosecutors for the message a conviction would send to others contemplating, or actually engaged in, the same misconduct.
An acquittal, on the other hand, would be viewed by them as sending the wrong message to the nation and, in Grimm's case, would be politically embarrassing as well. Therefore, it's reasonable to assume that the government has a decent case against him.
Grimm, however, insists he's innocent and will likely contend that there are plausible explanations for the evidence, documentary and otherwise, that the government presents against him. Defects in the government's proof will be highlighted by his attorneys.
What prosecutors say is solid evidence of criminal intent, will be attributed by Grimm to honest mistakes made by himself or others. Intent is pivotal here and, like every other element of the crimes charged, must be proven beyond a reasonable doubt.
Jury selection, important in every case, will be especially so here. Jurors generally tend to be sympathetic to defendants accused of tax-related crimes. That sympathy is intensified when they believe that a defendant is being unfairly prosecuted by the government, even if they also believe that he may be guilty of the crimes charged.
These are the precise factors that can lead to jury nullification, a refusal by jurors to convict, regardless of the law, because they believe it would be unjust.
Although generally not sanctioned in the United States, jury nullification does occur and, when it results in an acquittal, there is nothing the courts can do about it.
That said, there are factors working against Grimm too. His status as a congressman makes him vulnerable to cynicism within the jury panel, jurors wary of anything a presumptively powerful defendant may say, and driven to prove that they aren't fooled by him.
That his alleged wrongdoing has been spread over 20 counts in the indictment is a much more serious negative because it greatly increases the chances of a compromise verdict. Every defense attorney's nightmare, a compromise verdict occurs when jurors, deadlocked as to a defendant's actual guilt or innocence, surrender their sincerely held beliefs to end the stalemate by compromise.
This typically results in a defendant being convicted on some of the charges but acquitted on others. A compromise verdict would be catastrophic for Grimm, who needs an acquittal on all charges to avoid the very real possibility of being sentenced to jail.
These, then, are the factors to keep in mind as the government and Grimm prepare for trial in what is clearly a high-stakes battle for both sides.
Daniel Leddy's column appears each Tuesday on the Advance Editorial Page. His e-mail address is email@example.com. Follow him on Twitter at twitter.com/LegalHotShots.