Mar.21, 2010

The government hasn't said what it has -- or doesn't have -- on Bernard Kilpatrick. His possible prosecution faces several hurdles:

He's a consultant. Don't people pay consultants for work?

Sure they do. But there is a legal difference between offering helpful advice and promising official actions in return for cash, a theory the FBI is pursuing in its investigation.

"One of the greatest challenges in a public corruption case is establishing the quid pro quo -- the this-for-that," said Alan Gershel, a former federal prosecutor who teaches at Cooley Law School. "More often than not, the parties are not explicit -- it can be done with a wink and a nod."

Gershel, who said he was speaking generally and not specifically about the Detroit case, said the government uses unique tools -- grand jury subpoenas, surreptitious recordings, wiretaps -- to try to ferret out supporting evidence. All those tools have been used in the Detroit probe, but the full scope of what has been generated hasn't been made public.

Another former federal prosecutor, Wayne State law professor Peter Henning, said the government would have to show that Bernard Kilpatrick knew any payments to him were for the purpose of bribing his son, and that the mayor knew the money was a bribe or a kickback.

"The key to this is the link between Bernard and Kwame, establishing that link in the corrupt transactions; otherwise, you've got the father acting on his own," Henning said.

Will the government go for RICO charges?

Federal documents and interviews indicate an effort to do so. U.S. Attorney Barbara McQuade declined to comment.

Gershel said the Racketeer Influenced and Corrupt Organizations (RICO) Act is complicated and rarely was used during his tenure (he retired two years ago) in the Detroit U.S. Attorney's Office.

G. Robert Blakey, a Notre Dame Law School professor and one of the country's foremost authorities on RICO, said the law is applied to public corruption more often than any other crimes. RICO is more complex than some laws to prosecute, but government tools such as wiretaps, grand juries and video and audio recordings -- all of which have been used in the Detroit case -- can help greatly.

"If they have that," Blakey said, "then it's not that difficult to prove."

What is RICO?

Federal RICO law defines a criminal enterprise as any group of six or more people who engage in a pattern of crimes such as bribery, extortion, money laundering or mail or wire fraud. "Such groups maintain their position through ... corrupt public officials, graft, or extortion, and generally have a significant impact ... in their locales," the FBI Web site says.