I was an appeals court judge for 11 years, and I heard a lot of criminal cases. More often than I liked, my colleagues and I voted to give new trials to people who, we were convinced, were guilty of really awful crimes — murder, rape, child molesting. Sometimes we even voted to let the malefactors go completely. We hated doing it, but we thought we had to, because judges have to follow the law.
I suspect that the three federal judges who voted yesterday to give Sheldon Silver a new trial feel the way we did. Silver didn’t kill, rape or molest anybody, but he did act like a greedy sleazeball. While he was the Speaker of the New York Assembly, one of the two or three most powerful people in the state, he got people to send business to his law firm — thereby putting money, adding up to millions over the years, in his pocket. In exchange, he did those people favors. A jury found him guilty of federal crimes that are the equivalent of bribery. The federal Court of Appeals threw the verdict out.
Was Silver guilty of taking bribes? Maybe, but it’s not that simple. Some of the favors he did for the people he got business from weren’t exactly huge. He helped someone’s son get a job. He had a meeting with lobbyists about some bills someone wanted passed. And the jury at his trial was told, in effect, that if he did either of those things in exchange for money, he could be convicted of bribery.
That instruction to the jury was wrong. The federal bribery laws only apply to "official" acts, and the Supreme Court decided (after Silver’s trial, in a case involving the Governor of Virginia) that official acts are things only a government official can do — get a bill passed, issue a license, use your power to pressure someone.
Asking someone to give a kid a job, having a meeting — those aren’t official acts. You and I can do that. It’s different if, in exchange for money, Silver let an employer know that the state would do something for (or to) him if the kid did (or didn’t) get the job; or if Silver didn’t just meet the lobbyists, but got the law changed in the way they asked. And he may have done those things. But the jury wasn’t told to decide whether he did or not.
For the Court of Appeals, that was enough reason to give Silver a new trial (though the court did say that "many would view the facts with distaste").
Sheldon Silver didn’t kill, rape or molest anybody, but he did act like a greedy sleazeball.
(Andrew Savulich/New York Daily News)
The Court could have reached a different result by straining a little. It could have found that the error in the jury instruction was harmless. There was one clearly official act that Silver did as a favor to a benefactor: he got a resolution passed by the legislature commending the guy for his good works. But that’s as trivial an official act as there can be. Legislatures pass that kind of resolution commending Eagle Scouts and retired firefighters all the time. The court thought the jury didn’t necessarily believe that that’s what the sugar daddy was paying Silver for.
So Silver stays out of jail, at least for now, and maybe you, as a normal taxpayer who hates corrupt politicians, are outraged. But don’t blame the Court of Appeals. Those judges were just following what the Supreme Court said was the law. And don’t blame the Supreme Court either. That Court was right to decide that not every petty favor that a politician does for people who send money his way counts as bribery. You don’t want to live in a country where everything that smells bad is a crime. In a country like that, we’re all in danger of going to jail.
True, there are a lot of sleazy politicians in the world. But there a lot of publicity-hungry prosecutors, too, and going after politicians is usually good publicity. Maybe the law makes it too hard to lock up crooked politicians — and murderers, rapists and child molesters. But we follow a rule based on centuries of hard-earned wisdom: better too hard than too easy.
Smith, a partner at Friedman Kaplan, is a former judge on New York’s Court of Appeals.