BY MARY REINHOLZ | The Second Circuit Court of Appeals, which vacated the 2015 conviction of fallen Lower East Side pol Sheldon Silver last month, cleared the way on Aug. 3 for him to request a review of his corruption case from the U.S. Supreme Court.
In granting Silver’s motion to ask SCOTUS for an order of certiorari — a writ from a high court to a lower court requesting its proceedings in a case — the appellate panel effectively stalled federal prosecutors in their efforts to retry the once-powerful former New York State Assembly speaker.
In a prepared statement, Steven Molo and Joel Cohen, Silver’s lawyers, said, “The court recognized the significance of the issues we will be asking the Supreme Court to review. It halted the trial court proceedings to allow us to do that.”
Molo and Cohen have raised issues about a money-laundering charge against Silver and have also said his rights for protection against double jeopardy could be endangered by a second trial.
Undeterred, government prosecutors on Aug. 4 asked U.S. District Court Judge Valerie Caproni to set a “tentative” second trial date for Silver next year. Prosecutors previously had stated in court filings that retrying the 73-year-old Silver was “inevitable” and claimed he was just making a bid for time and a “logistical advantage” by appealing to SCOTUS.
Joon H. Kim, acting U.S. attorney for the Southern District, in his letter to Caproni in Foley Square, wrote, “Given the logistical challenges associated with scheduling a month-long trial, the Government requests that the Court set a tentative re-trial date in March, April or early May 2018 to permit the parties and the Court to re-try this case in a reasonable time period should the Supreme Court deny the defendant’s petition for certiorari.”
Caproni presided at Silver’s trial, slapping him with a 12-year sentence for seven felonies, including extortion and theft of honest services.
Responding to Kim’s letter, Caproni reportedly asked both the government and the defense about their availability for a trial from March through August of 2018, a source told The Villager on Monday.
In tossing Silver’s conviction, the Second Circuit appellate panel of three judges said that Caproni had given jurors a dated and overly broad concept of corrupt official acts in her instructions — yet they ruled there was sufficient evidence to try Silver again.
The Court of Appeals judges based their opinion on a SCOTUS ruling that overturned the corruption case of former Virginia Governor Bob McDonnell and his wife that was handed down some seven months after Silver was convicted.
The McDonnell decision has set a precedent requiring that jurors be instructed on a narrower definition of what constitutes official corruption.
Meanwhile, Silver’s chances of getting a hearing from the Supreme Court appear to be slim.
“SCOTUS accepts a very, very small percentage of cases they are asked to hear / review,” said Emily Jane Goodman, a Manhattan attorney and retired New York State Supreme Court Justice, in an e-mail to this reporter.
Silver’s lawyers have 90 days to petition SCOTUS from the date his conviction was overturned by the Second Circuit court on July 13.
Silver was convicted in November 2015. He remains free on bail.
