Sentencing Sheldon Silver

“The Government got up and said. . . we want other people to see his sentence and to think twice about committing a crime. And I remember Judge Glasser looked at the assistant and said, what you’re suggesting is that I give this person a sentence that’s more severe than is required in the hope that that sentence will one day keep a person who may not yet even be committing a crime from committing the crime.  He said, I can’t do that.  Sentencing is an individualized process.”

Defense counsel at the sentencing of former NY State Senator Carl Kruger.

“Mr. Adelson’s good deeds were not performed to gain status or enhance his image. Most of them were unknown to all but a few people until the time of his sentencing. But, surely, if ever a man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life hitherto, it should be at the moment of his sentencing, when his very future hangs in the balance.”

Judge Jed Rakoff at sentencing in U.S. v. Adelson.

Sheldon Silver, the 74-year old former Speaker of the NY State Assembly, is about to be sentenced again after his original conviction was overturned by the Second Circuit.

Considering the unanimous media howling against him, it’s not surprising that his speeded-up retrial resulted in a repeat conviction.  He’ll be sentenced by Judge Valerie Caproni who, at his previous sentencing,  slammed him with 12 years in prison and forfeiture of all his assets.

In the spirit of displaying the decapitated head of the condemned as a warning to others, the judge explained that the harsh sentence would instill in “the next politician” “the fear of living out his golden years in an orange jumpsuit.”

She pooh-poohed Mr. Silver’s 40 years of extraordinary achievement and good works, opining that his was an “exceptionally serious crime.”  Even if no one suffered any tangible harm, she said, the “intangible” harm was “incalculable”  because New Yorkers would never trust a legislator again.

For all the flinging about of words like “bribery,” “kickback,” and “corruption,” it’s hard to see what was exceptionally serious or incalculably harmful. Especially after the Second Circuit, reversing the first conviction because of the court’s misleading jury instructions, opined, “We cannot say, beyond a reasonable doubt, that a rational jury would have convicted Silver [even] if properly instructed.”

We asked our friend, bigshot federal attorney Flywheel Shoetree to explain.

“Elementary,” said Flywheel putting his fingertips together Sherlock-Holmes style. “Silver awarded two grants of $250,000 each for research into cancer contracted from asbestos.”

“The scoundrel!” we exclaimed. “Of course that money was bilked from vulnerable widows who contributed it thinking it would be used to feed hungry children.”

“Er, not exactly,” said Flywheel. “The money came from funds that Silver had full discretion to disburse for healthcare projects.”

“Then this so-called ‘cancer research’ must have been a bogus front for funneling the money into Silver’s pocket,” we said. “That’s the standard paradigm of corruption.”

“Wrong again,” said Flywheel. “There was no question that the recipient was a well-regarded doctor at Columbia University who used the money for asbestos-related cancer research. But Silver also asked him to refer his patients to a particular personal injury law firm.”

“Aha!” we said. “And this shady law firm took these patients’ retainers and absconded.”

“Not at all. The firm had a respectable asbestos-injury practice and zealously litigated those cases,” said Flywheel. “But they gave Silver a referral fee.”

“No doubt referral fees are highly illegal,” we said.

“Certainly not!” snapped Flywheel. “They’re standard practice. But the prosecution says it was a quid pro quo. In other words, that Silver awarded the grant to the doc to get the referrals.”

“But the doc went on referring patients even after Silver told him in 2007 that there’d be no more grants,” we pointed out. “So even if there was a quid pro quo before 2007, the 5-year statute of limitations would bar prosecution.”

“Silver had another quid up his sleeve,” said Flywheel triumphantly. “In 2011, he sponsored an Assembly resolution honoring the doc. So it’s not time-barred after all.”

“Even the Second Circuit said you can’t seriously call that a quid,” we protested. “Honorary Assembly resolutions are a dime a dozen. The Assembly rubber-stamps hundreds of them a year, honoring boy scouts, old folks, high school sports teams, even a sports team jersey –”

“You want this country to be like Russia?” retorted Flywheel. “You heard the judge. It doesn’t matter that the funding, the cancer research, the representation of asbestos plaintiffs and the referral fees were legit. Or that nobody lost a dime in the process.

“Same with Silver’s referring real estate developers to a law firm specializing in tax assessments, which paid him referral fees. Doesn’t matter that he never did anything different for the developers that he wouldn’t have done without the referrals.  If the Government and the newspapers want to call it bribery and kickbacks and the most dastardly corruption of the century, then it’s bribery and kickbacks and the most dastardly corruption of the century. Capeesh?

“We can only hope the judge has had some kind of epiphany in the past two years,” we sighed. “Maybe this time she’ll read the letters about how Mr. Silver was personally out on the street helping people after 9/11 and again after Hurricane Sandy. That he cut through red tape for welfare mothers, senior citizens and all kinds of individuals caught up in bureaucratic snafus.  That he blocked Mayor Bloomberg from building a football stadium in the middle of Manhattan, kept the legislature from reinstating the death penalty – – ”

“Yeah,” agreed Flywheel. “The judge shouldn’t worry so much about what us New Yorkers think about our legislators. We weren’t born yesterday and we know how to vote them out if we have to. She should worry about our faith in the judiciary when a federal judge sends a guy like Silver to die as a pauper in the slammer.”

Addendum: On July 27th Judge Caproni sentenced Silver to 7 years in prison . 

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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One Response to Sentencing Sheldon Silver

  1. Scott Jacobs says:

    Just out of curiosity, Squawk, what’s the record for the most times a single case has been overturned and sent back for a redo?

    Because it really, really looks like these folks are looking to make a go of it.

    Like

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