It’s a bizarre society where a cop can choke a helpless man to death in front of a camera and not be indicted, while 72-year old former Speaker of the Assembly Sheldon Silver, who’s devoted his life to public service, gets 12 years in prison for taking referral fees.
Even before he set foot in the courtroom, Silver had already been convicted in the media, thanks to US Attorney Preet Bharara’s tub-thumping. No ethics credits for you, Preet. Nothing like calling someone a “corrupt politician” to drum up the torch-and-pitchfork crowd. Even the NY Times joined the pack. So much for all its “progressive” hand-wringing over long prison sentences for non-violent offenses.
“Justice was served,” crowed Saint Governor Cuomo, hoping no one will remember that he was the one who put the kibosh on the short-lived commission to investigate public corruption after it started sniffing in embarrassing places.
“A scheming, corrupt politician,” declared Judge Valerie Caproni, throwing in some jeering about “living out his golden years in an orange jumpsuit.” “Here’s the thing about corruption,” she sneered, “It makes the public very cynical.”
Well, here’s the thing about a judge with a background of complicity in unlawful government surveillance. The virtuous Caproni was General Counsel to the FBI when they were systematically using illegal “exigent letters” to obtain thousands of phone records of private citizens without the silly formality of a warrant or subpoena. This rogue snooping went on for years while she was Counsel, despite criticism from the Office of the Inspector General, until she was finally hauled up in front of the House Judiciary Committee where she was less than candid. Just the person to preach about public trust.
What has Silver done to deserve a murder sentence? You won’t find out from the media, dutifully delivering the prosecution’s press releases. “Bribery,” “kickback,” “extortion,” “money laundering,” “scheme to defraud the public of honest services.” You’d think he was some kind of Godfather putting horse’s heads in people’s beds.
Whether white-collar or no-collar, the names of criminal offenses are designed to conjure up horrifying visions vastly out of proportion to what the prosecution actually has to prove. What could sound more wicked than “Scheme to Defraud the Public of Honest Services”? Visions of public works collapsing because they were built with Mafia cement. Little children going hungry because politicians are stealing their school lunches. But according to Caproni’s Jury instructions, “scheme” means only a plan to accomplish a goal and “defraud” simply means lying. It doesn’t matter if the public didn’t lose any money because of the “scheme.” It’s the idea of being lied to that deprives them of the “intangible right of honest services.”
Everybody knows what bribes and kickbacks are: when a public official gets something from someone “in exchange for the promise or performance of an official action.” But in prosecution-land, it doesn’t matter whether the “briber” gave with the intention of getting something back, or whether the official ever did anything for the briber. And even if the official does do something that benefits the briber, it doesn’t matter whether it was also good for the rest of the public. Or that the official would have done it anyway without the bribe. The crime is apparently that the official had thoughts of a quid pro quo.
As for extortion, the prosecution has to prove that the official knew that “the extorted party” gave him something with the motivation of getting him to do something in return, “rather than for some other entirely innocent reason.”
In Silver’s case, the charge was that a cancer researcher and some big developers referred business to law firms chosen by Silver because they thought Silver might do something in return. The prosecution didn’t have to show that there was anything wrong with the cancer research or the quality of representation by the firms, or that Silver’s referral fees were exorbitant. They didn’t have to show that he did anything for the researcher or developers that he wouldn’t have done anyway. No doubt the public has suffered intangible harm from Silver’s not disclosing the referrals, but is that proportional to throwing him in prison until he’s 84?
Maybe he shouldn’t be Speaker or an Assemblyman or even a lawyer, but prison time to make an example of him is barbaric. There’s another side to the story, as shown by the moving letters written to the court on his behalf. See Part 2.