The corruption conviction of former New York State Assembly Speaker Sheldon Silver was overturned Thursday on a technicality by a federal appeals court.
Silver’s attorneys say they are “grateful” for the decision, but the U.S. Attorney’s office for New York’s Southern District said it will retry the case. Until recently, the office was headed by Preet Bharara. He was fired by President Donald Trump earlier this year.
The court ruling does not dispute the facts presented in the case. Silver is accused of using his political position to gain over $4 million in illegal kickbacks and bribery payments in schemes involving cancer patients and two major real estate firms. The judges wrote that most people would view those scenarios with “distaste,” but they ruled that the instructions that the trial judge gave to the Silver jury were incorrect.
Susan Lerner, with the government reform group Common Cause, said she’s disappointed by the ruling.
“This is very clear and outrageous conduct,” Lerner said. “The public does not elect people with the expectation that they will use their office for personal enrichment.”
Since Silver was convicted in late 2015, the U.S. Supreme Court issued a significant ruling on public corruption cases.
The high court in September 2016 overturned the convictions of former Virginia Governor Bob McDonnell and his wife, saying that prosecutors had not adequately proved that there was a quid pro quo in the alleged bribery case. That decision rested on how the judge had defined what is an “official act” when giving instructions to the jury.
The federal appeals court said that because of that Supreme Court ruling, the instructions the judge gave in the Silver case to the jury are “erroneous” and “the jury may have convicted Silver for conduct that is not unlawful, and a properly instructed jury might have reached a different conclusion.”
Lerner said she’s encouraged that the judges did not rule against the facts presented by the prosecutors, giving hope for a second conviction.
The federal appeals court has not yet ruled on the corruption convictions and prison sentences of former state Senate Leader Dean Skelos and his son Adam. They also have appealed their convictions. The Skeloses and Silver have been free on bail pending the outcome of their appeals.
The Silver ruling will not affect the federal corruption trials later this year of nine former associates of Gov. Andrew Cuomo, including Cuomo’s former top aide, on bribery and bid-rigging because those trials will take place after the Supreme Court’s McDonnell ruling.
Silver is not the first legislative leader to see his corruption conviction overturned on appeal. Former Senate Leader Joe Bruno, who was convicted on mail and wire fraud in 2009, won on appeal — also because of changes in federal law determined by another U.S. Supreme Court ruling. Bruno was retried and eventually acquitted.
State leaders had varied reactions to Silver’s overturned conviction.
Cuomo offered cautious remarks, saying he wants to see the case play out.
“I understand the prosecutors are going to appeal that decision,” Cuomo said. “So let’s just wait to find out what the final disposition is.”
Assembly Speaker Carl Heastie also was noncommittal.
“We must respect the judicial process. It is a pillar of our democracy,” Heastie said in a statement. "Today's decision is a part of that process.”
Republican Assembly Minority Leader Brian Kolb said the reversal of Silver’s conviction is “disappointing and embarrassing.”
“If his actions weren’t illegal, it’s hard to imagine what is,” Kolb said in a statement.
Kolb also called for the immediate enactment of ethics reforms.