Ex-chief Nate Harper's
sentencing 'difficult'
By Rich Lord / Pittsburgh Post-Gazette
When former New York City
police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers
Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he
said, like "dying with your eyes open."
"Your entire life as you knew
it moves on around you, and there isn't a damn thing you can do about it,"
the recently released tax and obstruction convict said last week. "Your
kids grow. ... The house changes. My dog died. My brother-in-law died."
At the Federal Correctional
Institution Cumberland, in Maryland, where he served his sentence, he lived
among the kinds of people he spent his life locking up. That's what former
Pittsburgh police chief Nate Harper could face following his sentencing, set
for Tuesday.
Mr. Harper's fate is in the
hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011
after three years as a magistrate judge. She faces a decision in which she must
weigh Mr. Harper's history, his precise role in the conspiracy to commit theft
and the importance of deterring others from similar dips into the public cookie
jar.
Though federal guidelines
suggest a sentence of 1 1/2 to two years, she can go as low as probation or as
high as five years.
"It comes down to a very
difficult call for a judge," said Bruce Antkowiak, a former federal
prosecutor and now a law professor at Saint Vincent College in Latrobe.
"The strongest cards [Mr. Harper's attorneys] have to play are his history
with the department, the decades of work he has put in, the numbers of other
people from law enforcement who evidently respect him."
Those same factors, though,
could count against him.
"Either you think this is
a fundamentally decent guy who did something wrong, or you think this is a
public official who should be held to another standard," said Wesley
Oliver, the Criminal Justice Program director at the Duquesne University School
of Law.
Mr. Harper could argue that his
lawman background puts him at risk in prison. The U.S. Supreme Court found in
the case of police sergeant Stacey Koon, sentenced to prison in the beating of
Los Angeles motorist Rodney King, that judges can give lighter sentences to
defendants who are "unusually susceptible to prison abuse."
In the recent case of former
corrections officer Arii Metz, though, prosecutors countered that argument by
showing that the federal prisons already house many former police in relative
security. As of last month, there were 1,269 former law enforcement officials
in federal custody, according to the Bureau of Prisons.
"There are guys who are
going to hate him because he was a cop," Mr. Kerik said. "There are
going to be guys who are going to respect him because he was a cop."
Mr. Harper pleaded guilty in
October, confirming that he failed to file tax returns for four years and
diverted $70,629 in public funds into an unauthorized credit union account and
spending $31,987 on himself.
The prosecution has maintained
that Mr. Harper told two civilian subordinates to open and handle the account,
making him a supervisor in the conspiracy, and subject to a harsher sentence.
The defense has countered that
Mr. Harper had no co-conspirators, but also that the unauthorized account
wasn't his idea. They haven't yet named the alleged mastermind.
"The government's response
is going to be: Who cares?" Mr. Antkowiak said. "When you admit that
you told two city employees to open these accounts and draw the Visa cards on
them, you're a supervisor" of the crime.
Mr. Harper met with federal
investigators "approximately 10 times," according to his attorneys.
There's no indication, though, that the prosecution will ask the judge to
impose a lighter sentence for what's called "substantial
cooperation."
"We don't know what
happened in those 10 meetings," Mr. Oliver said. Nor is there any
indication of any results, he said, noting that a key part of weighing a
defendant's cooperation is "how many busts, how substantial the busts
were."
The flip side: Two defendants
-- both of whom were given credit for cooperation -- publicly blamed Mr. Harper
for a separate bid-rigging scheme in hearings before Judge Bissoon. The former
chief has never been charged in relation to the incident, a contract won by
Alpha Outfitters -- a company controlled by the chief's long-time friend -- to
install and maintain computers and radios in police cars.
The judge shouldn't give much
weight to their accusations, Mr. Oliver said, though he noted that the charge
"tends to tear down the narrative that the defendant is trying to tell"
about a good man with a bad debit card.
With the eyes of the public,
and especially of law enforcement, on the case, the judge may carefully weigh
the deterrent effect of the sentence.
"Look, one of the things a
judge always considers is what kind of message [she's] sending with this
sentence," said John Burkoff, a law professor at the University of
Pittsburgh. " 'What's the message I'll be sending to police officers who
may be tempted to do something bad if I'm lenient?' "
Mr. Kerik, now an advocate for
sentencing reform, suggested that the message has already been sent. It could
be amplified, he said, if the judge gives Mr. Harper probation but orders him
to speak to police recruit classes about his crime and punishment.
"They're going to take his
pension," Mr. Kerik said. "You've taken his reputation. He's now a
convicted felon. He's going to have legal fees he'll have to pay for.
"That guy has been
destroyed."
Rich Lord:
rlord@post-gazette.com, 412-263-1542 or on Twitter @richelord.
