Ex-New York Assembly Speaker Silver has conviction voided, faces retrial

Aaron Brown
July 14, 2017

The New York-based 2nd U.S. Circuit Court of Appeals said jury instructions in Silver's case did not reflect the Supreme Court's narrowed meaning of official acts that can support a federal bribery conviction. The judge in Silver's case had defined it as "any action taken or to be taken under color of official authority", which "was erroneous under McDonnell", the appeals court said.

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Joon Kim, the acting U.S. Attorney for the Southern District of NY, said he looks forward to retrying the case. The court found that the instructions given to the jury by the judge at Silver's trial were wrong, considering the new definition established by the McDonnell case.

Silver, a Democrat who represented the Lower East Side in the assembly for almost four decades, had been convicted on seven counts of bribery and corruption last May.

"While we are disappointed by the Second Circuit's decision, we respect it, and look forward to retrying the case", Kim said in a statement, noting that the appeals court said it found sufficient evidence for a conviction even under the new legal definition.

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"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".

Dick Dadey of Citizens Union said the Silver reversal reinforces the need for voters to approve a constitutional convention (a referendum that is on the statewide ballot this fall) to create fairer elections and tougher anti-corruption laws.

As Speaker of the Legislature's Democrat-controlled lower house, he held significant power over the operation of NY government, particularly over the real estate industry and health care funding. Silver, who is 73, faces 12 years in prison. He was accused of taking $4 million in illegal payments. "The public does not elect people with the expectation that they will use their office for personal enrichment".

New York University Law Professor James Jacobs said he understands the evidence to be "incredibly strong". "This is yet another area where the Court has misinterpreted the law, setting legal standards which fly in the face of the public' expectations. I expect Sheldon Silver to be retried and re-convicted".

The appeals court opinion by Judge José A. Cabranes says the jury that convicted Silver did not get the right instructions in the context of the McDonnell case.

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