Maybe "Smelly Shelly" Silver is answerable to the laws we have after all: Part 1, The indictment

He used to be such an important person, not just respected but feared. Now the feds are sitting on nearly $4 million of his moolah, he's facing real prison time, and he's got some Internet clown calling him "Smelly Shelly."

by Ken

So much for the hopes of former NYS Assembly Speaker "Smelly Shelly" Silver to wriggle out from under the heap of hurt piled on him last month by U.S. Attorney Preet Bharara ("Say it ain't so, Shelly Silver -- and see whether anybody believes you") at the indictment stage. (I see that I myself referred erroneously to Smelly Shelly having been "arrested and indicted." No, he was arraigned upon arrest, but the indictment(s) remained to come.) In recent days observers have been pointing to this coming Monday as a turning point in his case -- the date by which the feds would have to either properly indict him or -- well, not. There was talk that USA Preet might have difficulty getting the grand jury to issue an indictment because of the difficulty of proving a quid pro quo for the roughly $4 million they say piled up in the Smellyman's coffers via corruption.

Just yesterday morning, for example, Bloomberg News's Patricia Hurtado filed a report that was headlined "Grand Jury Deadline For Sheldon Silver Tests Case's Strength." In her report, Patricia shared insight from a couple of insiders:

Susan Necheles, a former prosecutor who has defended political corruption cases, raised doubts about the charges and said they’ll fail without convincing proof of a quid pro quo.

“We have a part-time Legislature which is allowed to earn money on the side, even when the people they’re earning money from also want political favors from them,” she said.

“That’s not criminal,” she added. “It’s just politics.”

E. Stewart Jones Jr., a lawyer who last year won an acquittal for former New York Senate Majority Leader Joseph Bruno on corruption charges, said there’s nothing illegal about referral-fee arrangements that are disclosed to clients.

“These relationships have existed for decades,” he said in an interview. “The lawyers have done nothing but refer a case, and that’s been permissible and ethical.”

No doubt, proving a quid pro quo where political corruption is concerned is tough. You don't usually find a document along the lines of:

I, the undersigned [insert name here], acknowledge payment of $[insert amount here] from [insert name of political figure and office held] in exchange for his/her promise to [insert brief description of favor promised; please limit to 250 words, or attach extra sheets].

Signed, [sign document here]

Or audio or video tapes to the same effect.

Sure, there are dumb pols, but you like to think that a guy who -- speaking entirely hypothetically here -- has the smarts to engage in a couple of rackets that net him a minimum of $4 isn't apt to be that stupid. On the other hand, it isn't entirely unknown for a prosecutor to assemble a case with circumstantial elements that require a jury to connect some of the dots, based on the evidence.


SMELLY SHELLY IS INDICTED

Unfortuntately for Smelly Shelly, he's a step closer to having his fate decided by a jury, because yesterday the feds got their grand-jury thumbs-up. The NYT's William K. Rashbaum reports (links onsite):

A federal grand jury in Manhattan voted on Thursday to indict Sheldon Silver on the fraud and extortion charges that were the basis of his arrest last month, and led to his ouster as speaker of the State Assembly.

Mr. Silver was arrested on Jan. 22 on a five-count criminal complaint that detailed two alleged bribery and kickback schemes in a case that has upended Albany. The three-count indictment, handed up in the United States District Courthouse in Manhattan, charged him with mail fraud, wire fraud and extortion under the color of official right.

Two charges in the complaint — a mail fraud conspiracy count and an extortion conspiracy count — were not included in the indictment. A spokesman for the United States attorney’s office in Manhattan, which is prosecuting the case, declined to comment on why the counts had been dropped.

The indictment of Mr. Silver, 71, a Lower East Side Democrat who had served as the powerful speaker for two decades, suggests there is little prospect of plea discussions at this stage in the case, and moves the matter toward a possible trial. He remains a member of the Assembly.

Mr. Silver’s lawyers, Joel Cohen and Steven Molo, said in a statement that their client was not guilty. “We can now begin to fight for his total vindication,” the statement said. “We will do our fighting where it should be done: in court.”

Mr. Silver is scheduled to be arraigned at 3 p.m. on Tuesday before Judge Valerie E. Caproni of Federal District Court. She will preside over the case.

So at this point all that stands between Shelly and a jury of his peers is whatever plea agreement his legal team can hammer out with the prosecutors. If you wanted to look at the process cynically, you might say that the principal effect of today's development is to dramatically redefine the positions from which the two sides will now be negotiating.

No doubt, though, the prosecution team is going to be hearing that phrase "quid pro quo" a lot during the back-and-forth. Proving that Smelly Shelly -- and here, it shoujld be noted, we're no longer speaking hypothetically -- used his position to stockpile potential lawsuit referrals in exchange for the millions of dollars in referral fees he racked up, or that he used his control of Assembly purse strings to move public moneys into the hands of other parties in exchange for other payoffs -- this really and truly isn't a snap.

Don't get USA Preet mad!

But the Smellyman's team has to know now that USA Preet isn't about to back down. His public statements have given strong indication that he's really peeved about the blatant corruption in Albany, not least because of the way our governor, Boy Andrew, summarily shut down the investigation he himself had set in motion -- peeved both by the rampant corruption and by the way he got snookered into cooperating into an investigation that turned out, as soon as investigators' inquiry into some of the legislators' money guys turned out to be looking at some of Boy Andrew's money guys, to be just a bit of political theater, a mere side show really, that could be shut down at the governor's convenience (or perhaps inconvenience).

Now if there's anything we learned from all those seasons of Law and Order, it's that prosecutors sometimes take the cases they prosecute personally. And while you don't want this to get out of hand -- law enforcement really shouldn't be a matter of a class of lawyers pursuing grudges -- it's certainly not entirely a bad thing. It might have been nice if USA Preet and other federal and state prosecutors had taken the massive malfeasances involved in the Great Economic Meltdown of 2008 more personally. Yes, yes, I know, a U.S. attorney can never get ahead of what he can prove to a jury beyond a reasonable doubt, and sometimes making cases that you lose is worse than not making any cases at all. Still . . .

Let's not pretend that Smelly Shelly is, even if everything the feds say about him is true, the most corrupt officeholder in the U.S. today. But what he's accused of is big-time, and the amount of trust invested in someone who occupied as powerful a position as he did has to make him accountable. It might be nice if some other prosecutors in other jurisdictions were inspired by USA Preet's present example.


TOMORROW: Once and for all, what do Smelly Shelly and "Moneybags Mikey" Khodorkovsky have in common?

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