Federal appeals judges have overturned the 2015 conviction of former Assembly speaker Sheldon Silver on corruption charges.
Writing in an opinion released this morning, the judges wrote that Silver, who took in some $4 million in secret payments as part of elaborate kickback/back-scratching schemes, may not have been convicted had his jury's instructions been different. The Supreme Court decision in the corruption case of former Virginia governor Bob McDonnell, which came after Silver's conviction and sentencing, raised the bar for what prosecutors need to prove to convict someone of corruption, by tightening the definition of an "official act" done in exchange for a bribe. In the new legal landscape, merely making a call to another lawmaker or setting up a meeting on behalf of the source of a gift does not qualify. Rather, the corrupt official must carry out an act that is "a formal exercise of governmental power."
Silver's jury instructions defined an official act as "any action taken or to be taken under color of official authority."
The "error" of the pre-McDonnell jury instructions in Silver's case, the appeals judges wrote in their decision, "was not harmless because it was not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for the verdict to stand."
Silver's lawyers also argued that the evidence used to convict him was not sufficient, but the judges rejected that argument.
Prosecutors will seek to retry Silver, who has avoided jail pending his appeal.
Acting U.S. Attorney for the Southern District of New York Joon Kim said in a statement, "While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case." He continued, "Although it will be delayed, we do not expect justice to be denied."
Silver had been convicted of extortion, honest services fraud, and money laundering, and sentenced to 12 years in prison and $6.9 million in fines. Prosecutors showed at trial that Silver got kickback payments for referring tax and asbestos illness cases to separate law firms, and made related arrangements with developers and a prominent cancer researcher, in exchange for favorable treatment in Albany. The favors, government lawyers argued, included securing landlord-friendly provisions in rent law negotiations after used Silver's tax lawyers, and directing hundreds of thousands of dollars in unusual grants for mesothelioma research to a scientist who referred asbestos cases to another law firm of Silver's choice.
The appeals court judges suggested that they got no joy out of vacating this conviction, but concluded that it's what the new interpretation of the law requires. The decision reads, "We recognize that many would view the facts adduced at Silver’s trial with distaste. The question presented to us, however, is not how a jury would likely view the evidence presented by the Government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty."
Silver was Assembly speaker, one of Albany's all-powerful three men in a room, for 20 years, and worked the Assembly for nearly 40. He represented the Lower East Side and, among other "accomplishments," kept low-income housing from being built on empty lots near his apartment for decades.
Earlier this week, the same Second Circuit Appeals Court upheld the corruption conviction of former Brooklyn assemblyman William Boyland, Jr., who appealed on the same grounds. In that case the judges found that the jury instructions were improper under the new rubric, but wouldn't have affected the outcome.