The Sheldon Silver Trial: Take Two

NEW YORK — For prosecutors, retrying a case — recompiling witnesses and exhibits, and reviewing old jury arguments — often does not have the same spark as the first time.

They “complain that it’s like putting on a wet bathing suit,” said William J. Harrington, a former federal corruption prosecutor in New York who is now in private practice.

But things may feel a bit different in this week’s retrial of Sheldon Silver, the former state Assembly speaker, whose conviction on federal corruption charges was thrown out last year.

Silver was known as one of New York’s “three men in a room” — along with Gov. Andrew M. Cuomo and Dean G. Skelos, the state Senate majority leader — who controlled decision-making in Albany.

In 2015, Silver, D-Manhattan, and Skelos, R-Long Island, were tried and convicted of federal corruption charges and given long prison sentences.

Except that they never served them.

Both men’s convictions were overturned on appeal after the U.S. Supreme Court narrowed the kind of official quid-pro-quo actions that could constitute corruption in reversing the conviction of a former Republican governor of Virginia, Bob McDonnell.

The government said it would retry the two men, and on Monday, the first of those retrials — Silver’s — starts in U.S. District Court in Manhattan before Judge Valerie E. Caproni, who presided over the first trial.

Although the jury instructions will have to be revised in light of the Supreme Court decision, the presentation of evidence and testimony is largely expected to track that of the first trial. In that case, prosecutors showed that Silver obtained nearly $4 million in illicit payments in return for taking a series of official actions that benefited others.

Prosecutors would still seem to hold an advantage: Caproni, in an order granting Silver’s request to remain free on bail while he appealed his conviction, observed that “Silver’s case is factually almost nothing like McDonnell.”

“There is no question that Silver took a number of official acts — most obviously passing legislation and approving state grants and tax-exempt financing — as part of a quid pro quo” in the charged schemes, the judge wrote. The trial of Silver, 74, is just one of a series of federal corruption cases being tried in Manhattan this year. In March, prosecutors won the conviction of Joseph Percoco, a former top aide to Cuomo.

In addition to Silver, two other corruption defendants are being retried: Skelos’ case is scheduled for June, and in July, prosecutors will retry Norman Seabrook, the former head of the New York City correction officers’ union, whose case ended in a mistrial in November after the jury was unable to reach a verdict.

More than two years after the first Silver and Skelos trials, Albany’s power structure remains fundamentally unchanged. Most if not all major policy decisions, including the direction of a $168 billion budget, are still decided by a clutch of three men in a room: the governor; the leader of the Senate, John J. Flanagan, R-Long Island; and the Assembly speaker, Carl E. Heastie, D-Bronx.

Those negotiations continue to take place behind closed doors, with leaders typically offering brief, largely inconsequential updates to members of the media and announcing details only when final deals are settled upon. That arrangement has been roundly criticized by government watchdogs, who decry a lack of transparency and open debate, as has the Legislature’s common practice of passing bills in wee hours of the night when few members of the public are watching or aware of the proceedings.

Silver’s and Skelos’ retrials will be watched closely by watchdog groups, which have long criticized Albany’s culture of secrecy and influence peddling.

“I have no doubt that Silver will put forward the same defense, which is that it’s business as usual in Albany and therefore not illegal,” said Susan Lerner, executive director of Common Cause New York. “That’s why it’s so important that the first jury rejected this argument, and we expect that the second jury will do the same.”

One phenomenon of retrials is that the personnel often change. The four prosecutors involved in the first Silver trial have left the U.S. attorney’s office in Manhattan — Carrie H. Cohen entered private practice; Andrew D. Goldstein joined the office of Robert Mueller, the special counsel investigating Russia’s meddling in the 2016 presidential election; Howard S. Master became a senior enforcement counsel for the New York attorney general, Eric T. Schneiderman; James M. McDonald now heads enforcement for the Commodity Futures Trading Commission — and a new team has taken over.

Silver also has a new defense team, led by Michael S. Feldberg. Neither Feldberg nor the prosecutor’s office would comment on the retrial.

In the first trial, prosecutors showed that Silver arranged to have the state Health Department award two grants totaling $500,000 to a Columbia University cancer researcher, Robert N. Taub.

In return, Taub sent cancer patients with legal claims to a law firm, Weitz & Luxenberg, that kicked back a portion of its fees to Silver.

Taub, the star prosecution witness in the first trial, could begin testifying as early as Monday, a prosecutor told Caproni last week.

Prosecutors have said that in another scheme, Silver arranged to have two real estate developers, Glenwood Management and the Witkoff Group, send tax business to a law firm, Goldberg & Iryami, that also sent Silver part of its fees. Silver supported real estate legislation that benefited the developers, the government said.

In overturning the McDonnell verdict, the Supreme Court ruled that official action must involve formal and concrete government actions or decisions, like filing a lawsuit or holding a hearing, not mere political courtesies.

In Silver’s case, two former federal prosecutors differed on how much of an advantage each side may have.

“The prosecution’s case against Silver on retrial should not be any weaker,” said Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School.

“There’s plenty of evidence that he committed these crimes,” she said. “There were quid pro quos and official acts within the narrow definition of McDonnell.”

But Randall W. Jackson, now a defense lawyer, said, “I don’t think it’s clear cut.”

“It will be very interesting to see how a new jury approaches a case like this after receiving materially different jury instructions,” Jackson said.

“The Silver case is right at the fault line for some of the difficult questions that have been raised by the courts about what exactly constitutes public corruption,” he added. Generally, in retrying cases, the defense may have certain advantages because the government has already shown its hand, other legal experts said.

“The defense has a blueprint of what the government’s case is, and as a result, they are able to adjust their cross-examination,” said Benjamin Brafman, a veteran defense lawyer who has known Silver for years and is not involved in his defense.

“The prosecution, on the other hand, really can’t change the nature of the testimony from the first trial to the second trial,” Brafman added. “If they do, the witnesses will obviously be confronted with their earlier testimony and vigorously cross-examined about the difference.”

The defense may also benefit from the passage of time, said Rebecca Roiphe, a former assistant district attorney in Manhattan who teaches at New York Law School.

“Defense attorneys always like delay, because faded memories work in their favor,” she said.