A judge on Friday refused to dismiss corruption charges against US Assemblyman Sheldon Silver, whose lawyers had argued that US Attorney for the Southern District of New York Preet Bharara had made improper statements that deprived their client of the presumption of innocence.
However, US District Court judge Valerie Caproni said she did not “condone the government’s brinksmanship relative to the defendant’s fair trial rights, or the media blitz orchestrated by the US attorney’s office” in the days after the arrest of Silver, who is a former US State Assembly speaker.
She cited a news conference held by Bharara on the day of the arrest in January and a series of posts on Twitter from his office citing his comments and a previously scheduled speech he gave the next day in which he condemned Albany’s culture of corruption.
“In this case, the US attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that defendant Sheldon Silver has a nonfrivolous argument that he fell over the edge to the defendant’s prejudice,” the judge wrote.
Silver, a Democrat, was forced to step down as speaker after his arrest. Prosecutors have accused him of abusing his office to obtain nearly US$4 million in illicit payments through two law firms, while maintaining publicly that the income came from bona fide legal work.
He has pleaded not guilty to two counts of honest services fraud and one count of extortion under the color of official right.
Silver’s lawyers had asked Caproni to dismiss the indictment or to poll the grand jury that indicted him to determine the impact of the prosecutor’s comments.
The government had asked the judge to deny the motion, saying that Bharara had repeatedly emphasized that the charges were only allegations and “explicitly stated” that Silver “was presumed innocent unless and until proven guilty.”
Caproni, in denying the defense’s requests, cautioned both parties “that this case is to be tried in the courtroom and not in the press.”
She said she was “troubled” in particular by remarks by Bharara “that appeared to bundle together unproven allegations regarding the defendant with broader commentary on corruption and a lack of transparency in certain aspects of New York state politics.”
Prosecutors were afforded “considerable latitude” to speak about cases to further law enforcement goals, she said.
However, she added that “remarks that associate the accused with a long line of convicted criminals,” for example, “tend to blur the distinction between legitimate public commentary and improper opinion.”
“A far more prudent course — and one that would have been far more respectful of the defendant’s presumption of innocence and fair trial rights — would have been to delay the arrest until after the US attorney’s speech and for the US attorney to stay focused on politicians who have actually been convicted,” Caproni said.
Bharara’s office had no comment. Silver’s lawyers, Joel Cohen and Steven Molo, said in a statement that they were “pleased that the court took exception to the conduct of the United States attorney,” and “we look forward to continuing our attack on the merits of the case and our client’s ultimate vindication.”
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