Ethics

Sheldon Silver's corruption conviction is overturned, but prosecutors plan to retry case

By Jonathan Lentz

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Former Assembly Speaker Sheldon Silver, whose remarkable political career ended in disgrace in 2015 due to high-profile corruption charges, had his conviction overturned on Thursday, according to reports.

The decision by a federal appeals court turned on the U.S. Supreme Court's precedent-setting ruling in the case of former Virginia Gov. Bob McDonnell, whose conviction was overturned based on a narrower definition of "honest services" fraud. 

The U.S. Court of Appeals for the Second Circuit in Manhattan ruled that the jury in the Silver case had not been properly instructed due to the narrower parameters established by the McDonnell ruling.

The McDonnell case had experts speculating that other government officials brought down by similar corruption charges might have a better shot at a successful appeal. Others predicted that the conviction would stand, while acknowledging that the McDonnell case was a potential threat. 

Federal prosecutors plan to retry the case against Silver, according to the U.S. Attorney's Office for the Southern District of New York, which had brought the initial case against the former Assembly speaker. 

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“While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case," said Joon Kim, the acting U.S. attorney for the Southern District of New York. "Although finding that the Supreme Court’s McDonnell decision issued after Silver’s conviction required a different legal instruction to the jury, the Second Circuit also held that the evidence presented at the trial was sufficient to prove all the crimes charged against Silver, even under the new legal standard. Although this decision puts on hold the justice that New Yorkers got upon Silver’s conviction, we look forward to presenting to another jury the evidence of decades-long corruption by one of the most powerful politicians in New York State history. Although it will be delayed, we do not expect justice to be denied.”

Silver was convicted in November 2015 on all seven counts against him in his high-profile federal corruption trial involving some $4 million in allegedly illegal payments, bringing to an end a career in which he spent two decades as one of the state’s most powerful political figures.

One scheme involved the awarding of state funds to Dr. Robert Taub, a Columbia University medical researcher, to conduct mesothelioma research. In return, the doctor referred asbestos patients to Weitz & Luxenberg, which employed Silver as of counsel and paid him for the referrals.

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The other scheme involved two real estate developers, Glenwood Management and the Witkoff Group, that used another law firm with ties to Silver at his behest. Silver also allegedly profited from the arrangements.

Silver was sentenced last May to 12 years, but had been allowed to stay out of prison while the case was on appeal.

One good government advocate, Common Cause/NY Executive Director Susan Lerner, quickly criticized the latest development. 

"At the trial, Mr. Silver's defense attorneys argued that this obvious corruption was simply business as usual in Albany, which the Supreme Court confirmed in McDonnell-defying the common sense of two New York juries and honest people everywhere," she said in a statement. "This is yet another area where the Court has misinterpreted the law, setting legal standards which fly in the face of the public' expectations. Overturning Mr. Silver's conviction based on the Judge's instructions to the jury, which occurred before the McDonnell ruling, does not redefine the facts in evidence. The U.S. Attorney's Office under Preet Bharara's leadership won its case, and we have every expectation that the people can win again at retrial. Sheldon Silver is absolutely guilty of corrupting his office and violating the public trust of 19 million New Yorkers."

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. Skelos was hit with separate corruption charges a few months later, and was convicted along with his son.

Preet Bharara, the former U.S. Attorney for the Southern District of New York, had brought what was initially a five-count criminal complaint alleging that Silver pocketed $4 million in kickbacks since 2000 in the real estate and health care industries in return for favorable treatment in Albany.

Bharara tweeted out his take on the court ruling on Thursday morning, asserting that Silver would likely be convicted again on retrial. 

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