Former New York State Assembly Speaker Sheldon Silver was convicted on the third day of jury deliberations of all counts in his five week trial in Manhattan federal court this week, and now faces up to 20 years in prison for his convictions for honest services fraud, money laundering and extortion relating to his obtaining nearly $4 million in exchange for using his position to benefit a cancer researcher and two real estate developers. So what went wrong? What would a top Manhattan criminal lawyer have done differently?
First, this was not a surprising verdict despite there being no true ‘smoking gun’ against Silver. Albany has long been thought of as a cesspool by New Yorkers and following conviction after conviction of New York politicians, jurors came into the trial presuming Silver’s guilt – instead of cloaking him in the presumption of innocence our constitution provides. Therefore, presenting a conservative defense would not be a winning strategy by his lawyers; unfortunately, that is exactly what he got: after an avalanche of evidence demonstrating the quid pro quo between Silver and various benefactors who steered cases to Silver-connected law firms in exchange for official actions which benefited them, Silver’s attorneys essentially claimed this was legal business as usual in Albany, and finished the trial with Silver sitting on his hands instead of testifying on his own behalf. Not surprisingly he was soon thereafter convicted.
When you have a client the entire city hates – a city which encompasses the jury pool – simply fighting the evidence is a surefire way to lose the trial, especially when the evidence is overwhelming. The only chance a defendant in these circumstances has is to knock the prosecutors out of their comfort zone. If prosecutors are permitted to try the case the way they drew it up, the defendant will quietly be marched to a conviction. Put the prosecutors on the defensive. One way is to allow the client to testify on his own behalf. While I rarely put a client of mine on the stand in a trial, this may have been the one time it was necessary. Silver has celebrity-like appeal to New Yorkers and they surely would have treated him with more respect than a typical defendant testifying to save his skin. New Yorkers want to see celebrities testify: it humanizes them. Jurors expect celebrity defendants to testify. And sure enough, after Silver’s conviction, at least one initial holdout juror, Arleen Phillips, a Verizon technician from Mount Vernon, stated to the New York Times that she and a few other jurors initially viewed Silver as “humble” and “non-assuming.” Despite mounting evidence of Silver giving favors in return for money, she still believed it was simply “good will.” She changed her opinion of Silver’s innocence when his attorneys did not present a defense case and Silver did not testify: “I wanted to hear his voice so I could determine whether or not there was any arrogance or anything that showed me he was capable of being deceitful,” Ms. Phillips said, “and I didn’t see that for the longest.” Silver and his built-in gravitas could have pulled it off – or at least tried to. Opportunity blown. In criminal cases with high profile defendants, there is a decent chance at least one juror will be star-struck; identifying that one juror, cultivating him or her and beseeching the juror to not give in to the inevitable bullying of the rest of the panel (“hold onto that reasonable doubt like grim death!”) can be the difference between dying in prison and a hung jury – and possibly never being tried again. (Trust me – this strategy works).
Silver’s Immediate Future
So where does Silver go from here? He won’t receive 20 years in prison but Judge Valerie Caproni is as tough as she is smart: a ferocious Brooklyn federal mafia prosecutor in the 90s, she is no fan of sleazy politicians. She will surely give him a de facto life sentence. And while many believe Silver will drag his day of reckoning out for years until after all his appeals are exhausted, I disagree. The law is clear on bail pending appeal (18 U.S.C. § 3143 (b)): Silver will be required to show that his appeal raises a “substantial question of law or fact likely to result in” reversal, an order for a new trial, or a sentence that does not include a term of imprisonment. Good luck with that.