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Could Silver Appeal End Up as Another Test Case for Federal Theft of Honest Services Law?

Dec 3, 2015

Former Speaker Silver , left has already been convicted of corruption. Former Senate Leader, Dean Skelos, right is still on trial.
Credit Matt Ryan New York Now

The conviction of Sheldon Silver on corruption charges is not the end of legal proceedings for the former Assembly Speaker. He and his lawyers are expected to provide details of their appeal of the case, as well as ask the trial judge to override the jury’s conclusions and retroactively acquit Silver.  

During the trial, Silver’s lawyers argued that the government failed to prove that there was a quid pro quo between the former Speaker’s arrangements with a cancer doctor to provide him referrals for a class action lawsuit , and state funded research grants awarded to the doctor.  The defense argued that there was also no actual proof of bribery when Silver profited from work done by a tax law firm that had, as a client, a major real estate developer seeking favors from the state.    

Albany Law School Professor Vince Bonventre says he analyzed the government’s case , and also initially believed that the absence of a smoking gun weakened the prosecution's arguments.

“A week or so ago, I would have said that the government certainly did not prove its case beyond a reasonable doubt,” Bonventre said. “That is, they didn’t prove the actual bribery or kick back, under the law.”

But he says the jury did not seem to be deterred by lack of proof of an actual quid pro quo, through an email,  for instance. And Bonventre says that should worry the former State Senate Leader, Dean Skelos, who is currently on trial in federal court, also on corruption charges.

“If I was Dean Skelos I would be very frightened,” said Bonventre. “If anything, the Sheldon Silver case shows that the people of New York are angry. These jurors were obviously very, very angry.”   

Federal prosecutors wiretapped calls between Senator Skelos and his son, Adam. Skelos is accused of using his political influence to obtain jobs and other perks for his son.  

“In Dean Skelos’ case, there’s actually some hard evidence,” said Bonventre.

Both former leaders were charged with breaking the federal theft of honest services law. Silver’s lawyers are likely to appeal on grounds that the law is flawed. A former New York Senate Leader, Joe Bruno, saw his conviction overturned when the US Supreme Court revoked part of the honest services law, under an apparel brought by former Enron executive Jeffrey Skilling. . Bonventre says that could potentially happen again. He says Silver’s corruption case could possibly end up with the nation’s highest court, and be another test case for the honest services statute.  Because he says, a number of Supreme Court justices don’t like the honest services law.

Silver’s attorneys argued unsuccessfully to the jury, that the former Assembly Speaker’s deals, in which he made over $4 million dollars, were simply business as usual in the legislature.  

Silver, one day after being automatically expelled from the legislature, filed for his pension. Under current rules, lawmakers who are convicted felons are still allowed to collect their pensions. Governor Cuomo and the legislature announced in March that they had agreed on a process to change the state’s constitution to revoke pension of legislators who are convicted felons,  but the Assembly never actually approved the deal, offering an alternative bill instead.   

A spokesman says the Assembly and Senate can still agree anytime in 2016, and still not affect the timetable for changing the constitution. A constitutional change requires the OK of two consecutively elected legislatures, and then approval by the voters.  The earliest the law could be changed is 2017.