Successful appeal for Sheldon Silver unlikely, experts say

Former Assembly Speaker Sheldon Silver’s nearly 40-year political career ended on Nov. 30 when a jury found him guilty on all counts in his federal corruption trial.

Legal experts told City & State that the case compiled by U.S. Attorney Preet Bharara and his office was strong, but undoubtedly he was also convicted in the court of opinion and not solely on the legal argument.

“I think he was probably disadvantaged because of who he is,” said Eugene O’Donnell, a professor at John Jay College of Criminal Justice. “The closing argument was, you know that he’s guilty, you know he’s corrupt just by virtue of the fact that he’s a leader in Albany. That’s like two strikes against you right out of the gate. So much of his energy was devoted to scheming, you have to wonder how he got any governance done.”

Silver was convicted on seven counts, including honest services fraud, money laundering and extortion, relating to two different schemes.

The first involved funneling cancer research funding to Columbia University’s Dr. Robert Taub. In exchange, prosecutors said, Taub referred mesothelioma patients to Silver’s law firm Weitz & Luxenberg, and Silver would collect a percentage on the referral fee.

The second scheme involved two real estate development firms, Glenwood Management and the Witkoff Group. Prosecutors said Silver convinced them to move legal services to a firm that would give Silver kickbacks. In exchange, Silver met with the firm’s lobbyists and ultimately supported housing and rent regulation bills favorable to the firms.

Silver now faces up to 120 years in prison, or 20 years for six of the seven counts against him.

Though a successful appeal still seems unlikely, the honest services fraud piece is Silver’s best chance at an appeal, legal experts said. Former state Senate Majority Leader Joseph Bruno was ultimately acquitted of his 2009 conviction on two counts of honest services fraud in light of the Skilling v. United States Supreme Court decision.

“We’re now five years past the Skilling decision and (Silver) was charged with full awareness of what the (U.S.) Supreme Court now requires for a theft of honest services conviction and they were able to present the case in the right way and the jury was instructed properly,” said Jennifer Rodgers, executive director of Columbia Law School’s Center for the Advancement of Public Integrity, who previously served in the U.S. Attorney’s Office for the Southern District. “We shouldn’t have a ‘Joe Bruno problem’ and I should say they also charged the alternate theory of extortion, as well.”

Albany Law professor Vincent Bonventre said he “wouldn’t bet” on a successful appeal by Silver’s lawyers, but argued they could have a potential case if it is taken to the U.S. Supreme Court on the honest services fraud law.

“I think if this case does get to the U.S. Supreme Court and they re-examine the law, especially in this case, I think it is certainly possible the court is going to make clear that when we talk about bribery or kickback, we are talking about that there must be some actual agreement, some actual understanding beyond a reasonable doubt that someone offered something to a politician and the understanding between them is that the politician would do something very specific in return,” Bonventre argued.

A defendant can also file appeals based on insufficiency of the evidence, mistakes made in the judge’s ruling or a problem with the jury. The three legal experts said an appeal based on insufficient evidence is highly unlikely.

Several issues came up with the jury during deliberations. Of the three juror issues, the strongest grounds for an appeal is based on a juror who told the judge the other jurors were bullying her and told her to “use her common sense.”

If that juror were to now say she voted that Silver was guilty under pressure just because the other jurors forced her and she wanted to leave, that could create a successful appeal for the defense. However, the defense wanted that juror to stay on the jury.

“When a juror says, ‘They’re bullying me, they’re telling me to use my common sense,’ they’re not talking about whether or not the government proved its case beyond a reasonable doubt, they’re saying, ‘Oh come on, use your goddamn head! This guy’s guilty!’” Bonventre said.

Although all three legal experts discussed potential appeals, the odds are stacked against Silver. The hardest part is over for the government, since the appellate court has different standards of guilt: not “beyond a reasonable doubt,” but whether “some rational juror could have concluded the government proved its case,” Bonventre said.

O’Donnell pointed out that because of his wealth, Silver has a better chance of a successful appeal than most, “but most have no case at all on appeal.” Silver has millions of dollars at his disposal, but the case “has been vetted and gone over and every legal issue has been teased out (by the U.S. attorney’s office),” O’Donnell said. “It’s a reminder that for really any criminal defendant, you only get one shot for the most part, and that’s at trial.”