Conviction of Sheldon Silver tossed; retrial sought

Sheldon Silver as he left court in New York in 2016. Credit Seth Wenig  Associated Press
Sheldon Silver as he left court in New York in 2016. Credit Seth Wenig Associated Press
Author

14 July, 2017

A federal appeals court on Thursday overturned the conviction of former NY state Assembly Speaker Sheldon Silver, citing a recent U.S. Supreme Court decision narrowing what kind of conduct can support corruption prosecutions.

The reversal of Sheldon Silver's fraud and extortion conviction exposes major flaws in state and federal anti-corruption laws which can allow actions the public would consider obviously wrong to go unpunished, critics and lawmakers said Thursday.

In its conclusion, the United States Court of Appeals for the Second Circuit in Manhattan cited a unanimous U.S. Supreme Court decision past year that allowed Virginia Gov. "All three cases raise the question of the proper definition of an official act".

The appeals court, while acknowledging the "distaste" of Silver's actions, said the jury was improperly instructed on what constituted official acts of the one-time most powerful Democrat in state politics.

Former U.S. Attorney Preet Bharara, whose office had prosecuted Silver, tweeted, "The evidence was strong".

Kelly Kramer, a white-collar criminal defense attorney at the Mayer Brown law firm, said that Silver's conviction had always been considered "one of the most vulnerable" after the Supreme Court's decision on McDonnell.

Silver, a Democrat who represented the Lower East Side in the assembly for almost four decades, had been convicted on seven counts of bribery and corruption last May.

"It is not a statement that Silver did not break the law", Kramer said.

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"I think given the importance of the case, in the history of NY and the long litany of corruption that's been exposed in Albany its very important for the USA attorney to try this case again". He said while it was unlikely many other convictions would be thrown out in a similar way, prosecutors would likely now bring fewer public corruption cases, knowing the high bar they have to meet.

In Thursday's appeals court decision, Judge Jose Cabranes agreed with the argument of Silver's legal team, writing that, had jurors been using the new standard for corruption cases, they might not have come down with a guilty verdict. The question presented to us, however, is not how a jury would likely view the evidence presented by the Government. The Skeloses appeals have not yet been argued.

Acting U.S. Attorney Joon Kim in Manhattan said his office plans to retry Silver, 73, who has been free on bail.

The charges were first made public in late January of 2015, one day after Silver had appeared next to Gov. Andrew Cuomo and then-state Senate Majority Leader Dean Skelos at the State of the State address in Albany.

Kim said that although justice will be delayed, prosecutors do not expect justice to be denied.

Attorneys for Silver also could not immediately be reached.

Silver was convicted of engaging in a quid quo pro scheme in which he used his official position to drive millions to himself through arrangements with two real estate developers and a cancer researcher at Columbia University.


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