Albany's crimes and misdemeanors: Silver, Bruno, Miller and Ohrenstein

The notion of Albany as cesspool is ingrained in the public consciousness, and there is too much evidence of awful behavior to shrug off, be it the conviction of state legislators and a comptroller or the indictment of senior executive branch officials.

The most frequently cited evidence is the past and recent convictions of legislative leaders. Four times over the last 25 years, leaders of the New York state Legislature have been indicted for corrupt acts. Three of those times a jury convicted.

But three times an appeals court tossed the conviction, saying that the activities in question were not crimes. One time the indictment itself was tossed out of court because the activities in question were not crimes.

There seems to be a pattern of prosecutorial overreach. Has the criminalization of awful behavior served us well?

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Start with Fred Ohrenstein, Democratic minority leader of the State Senate in the early 1990's. He was indicted by state authorities for abuse of the public fisc, including allegations of no-show jobs. The indictment was tossed because, in the words of then-Chief Judge Sol Wachtler, “…we have before us is a criminal indictment and we hold only that the defendants cannot be held criminally liable...the absence of any…legal prohibition is fatal to the prosecution.” In other words, his behavior wasn't a crime.

Next in the crosshairs was the Democratic Speaker of the Assembly Mel Miller, also in the 90's. He was indicted by the feds for mail fraud, tried before a jury and convicted. The conviction was tossed because, in the words of the U.S. Court of Appeals for the Second Circuit, Miller's “dealings ...may not have been a model of candor and disclosure, but they did not constitute felonies.” In other words, his behavior wasn't a crime.

Next, Republican Senate Majority Leader Joe Bruno was indicted by the feds for fraud and bribery, tried by a jury and convicted. The conviction was tossed because, in the words of the same court that threw out Miller’s conviction, “the district court did not require the jury to find that Bruno accepted bribes or kickbacks.” In other words, his behavior wasn't a crime.

Finally Shelly Silver, Democratic Speaker of the Assembly from 1994 through 2015. He was indicted for fraud, tried by a jury and convicted. Last month, the conviction was tossed. The U.S. Court of Appeals for the Second Circuit wrote: “We recognize that many would view the facts adduced at Silver’s trial with distaste....The question presented to us, however, ... is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court and the particular circumstances of this case, we simply cannot reach that conclusion.” In other words his behavior wasn't a crime.

None of these decisions was a vindication of the four men, or of their conduct. To one degree or another they engaged in unethical or distasteful or greedy behavior and the courts said so. But not criminal behavior.

We should be able to agree on a few things. First, that there is a pattern, and it's instructive. Second, the underlying conduct in all four cases was unsavory and wrong. Third, those prosecutors ought to know the difference between bad behavior and criminal behavior.

The line prosecutors involved, especially the career public integrity lawyers who investigate and try these cases, are terrific people, honest and motivated by the best instincts of public service. And generally, so are the higher-profile political appointees who run these offices and make the ultimate decision to indict.

However, the string of legal setbacks they've suffered can't be shrugged off. Something's not right.

Are our elected leaders generally corrupt? Was Preet Bharara right when he said, “What has been going on in state government lately is simultaneously heartbreaking, head scratching and almost comic. Albany is unquestionably suffering from a crisis of corruption."

As a widely-held view, Bharara’s words certainly took hold. He and other prosecutors brought down lots of individual pols that were on the take. But the charges against the legislative leaders were the essential proof that the system itself was rigged, and that average folks were regularly getting screwed on big issues because the decision makers were also on the take.

That is generally not the case. Yes, on some big issues private money dictates outcomes. By and large, however, those money transactions are legal. They come in the form of campaign contributions. It is obviously true that on issues as diverse as rent laws, or marriage equality, or tax breaks big donors show up, write checks and expect legislative outcomes that are in their interest.

There is much less (although too much) of that in the form of payments to individuals intended to shape policy. Where an issue involves the general welfare, and the political interests of rank-and-file legislators it is almost impossible for a legislative leader to deliver on a corrupt promise. Rent laws have survived because the relationship between voting tenants and legislators is more powerful than either bribes or campaign contributions by landlords.

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What should prosecutors make of all this? Fairly judged, the behaviors that brought down Ohrenstein, Miller, Bruno and Silver were unethical, a betrayal of their public trust, and a betrayal of their legislative colleagues. They should not be tolerated or excused. But they shouldn't be indictable either.

Which leaves us with very unsatisfactory options. More disclosure would be helpful. Adequate compensation would be helpful. Better self-policing by the Legislature and the governor would be helpful. But these remedies are limited at best.

The heart of unsavory connection between money and outcomes will survive untouched until there are enforceable limits on campaign financing. Such reform, says the Supreme Court, is likely a violation of the First Amendment. Such reform, when it takes the shape of public financing, stirs political and ideological resistance. But absent such reform, little will change.

This doesn't do much to clarify what constitutes behaviors that should be criminally prosecuted. We may be left with the immortal phrase of Supreme Court Justice Potter Stewart. He was unable to define pornography, but he “knew it when he saw it.”

If we have to trust prosecutors to find the correct line between unethical and criminal behaviors, so be it. It would help it they would focus on individual cases, which they know well. Sweeping pronouncements about the legitimacy of institutions may generate headlines and public outrage, but it is a different discussion and takes different skills and experience.

I suspect we have reached the effective limit of law and prosecution as tools for improved governance. A thorough discussion of the institutional function of the Executive, Legislative, Judicial and Authority systems is the next useful step, maybe at a constitutional convention. And prosecutors should stay aggressive, but within the bounds of common sense and law.

Richard Brodsky is a former assemblyman who is in the private practice of law and serves as a senior fellow at both Demos and NYU's Wagner School. He is a regular columnist for the Albany Times Union and The Huffington Post.