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Three Months, No Bail: What’s Really Going On?

December 18th marks 3 months since our publisher, Sam Zherka was arrested for a garden-variety of white-collar crimes – false statements and tax issues are alleged. Following his arrest, Mr. Zherka spent a few days at the county detention center in Valhalla before being transferred, not to Club Fed, but to the Manhattan Correctional Center (pictured on our front cover), where he has been held without bail since Sept 25th. Funny enough, our publisher learned that preparations for his stay at Valhalla had been made several days in advance of his arrest, and one wonders how this is possible if his case for bail was heard with an “open mind.”

Mr. Zherka poses no danger to the public. In the appeal for denial of bail filed with the Second Circuit, attorney Fred Hafetz cites several cases that highlight our judicial system’s affirmative bias toward bail:  “The presumption in favor of bail still applies even where the defendant is found to be a risk of flight.” Berrios-Berrios, 791 F.2d at 251. The court further stated that bail may only be denied in a “rare case of extreme and unusual circumstances. United States v Berrios-Berrios, 791 F2d 246, 251 (2d Cir…. )  Justice Kennedy, as a Ninth Circuit judge stated very clearly that: doubts regarding release are resolved in favor of the defendant.” United States v. Motamedi, 767, F. 2d 1403, 1405 (9th Circuit. 1985) (Kennedy, J.).

Mr. Zherka has been punished with three months of incarceration although he has not been convicted of any crime. How is he to be compensated for this loss of time spent behind bars, the damage to his reputation and his business relationships? Most people do not understand that Grand Juries only evaluate one side of the story and the selected evidence that the prosecutors present to them and the prosecution will do everything in their power to skew their Grand Jury presentation in their favor. The Grand Jury does not get to hear a defense attorney question the assumptions made or the evidence presented and they do not have the opportunity to present witnesses for the defense. Mr. Zherka’s continued incarceration makes it difficult for him to assist his attorneys in preparing for trial, an unfair handicap in a system where one is supposedly innocent until proven guilty and it prejudices his case to the prospective jury pool. No doubt, the prosecution is counting on this.

The prosecution turned over the first set of discovery papers to his attorneys with no restrictions.  In his most recent court appearance, Nov. 13th, government prosecutors requested and received a temporary protective order which bars Mr. Zherka from using testimony and discovery in this proceeding from use in future proceedings, although the judge is willing to re-evaluate this decision, if presented with specific requests for an exception. One wonders what the government attorneys are afraid will be revealed in these new papers, that may have relevance to Mr. Zherka’s advantage, in other proceedings?  

Given the types of individuals who routinely make bail, it is clear that there is a political agenda at work to keep our publisher behind bars. He is after all, a most inconvenient person: a newspaper publisher who has printed many stories over the past 8 years painting various politicians in an unfavorable light and now his enemies are playing hardball to keep him behind bars for as long as possible. This isn’t about the law; this is personal.