Fed judge 'troubled' by prosecutor's remarks in Sheldon Silver case

By Legal News Line | Apr 15, 2015

NEW YORK (Legal Newsline) – U.S. District Judge Valerie Caproni rebuked U.S. Attorney Preet Bharara for comments on criminal charges against state Assembly Speaker Sheldon Silver, but she stopped short of dismissing the charges.

In an April 10 order she warned Bharara that, “people who venture close to the edge of a rule risk falling over the edge.”

Caproni wrote that the rules governing statements of prosecutors are designed “with a heavy thumb on the side of defendants’ fair trial rights.”

She wrote that Bharara strayed close to the edge of those rules while he castigated politicians for playing fast and loose with their rules.

“In particular, the court is troubled by remarks by the U.S. Attorney 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,” she wrote.

Caproni wrote that it would not be unreasonable to interpret some of his statements as a commentary on Silver’s character or guilt.

She wrote that remarks associating Silver with a long line of convicted criminals or a broader pattern of wrongdoing tended to blur the distinction between legitimate commentary and improper opinion.

She declined to dismiss the charges, however, finding Silver failed to show that Bharara’s comments influenced grand jurors who indicted him.

Bharara filed a complaint against Silver on Jan. 21, alleging he received millions of dollars from two law firms by using his political power.

He alleged that a doctor referred patients to Silver, who referred them to Weitz and Luxenberg, an asbestos firm. In exchange, it is alleged, Silver steered grant money to the doctor's hospital.

U.S. Magistrate Judge Frank Maas sealed the complaint, but news outlets reported its contents and Silver’s imminent arrest.

Silver surrendered to federal agents on Jan. 22.

Bharara held a press conference that day, issued a press release, and posted a message on Twitter.

Next day, at New York University law school, he delivered a speech about corruption in general and Silver in particular.

On Feb. 19, grand jurors indicted Silver on charges of honest services mail fraud, honest services wire fraud, and extortion under color of official right.

For Silver, Steven Molo of New York moved to dismiss the indictment on Feb. 24.

"It strains credulity to think that grand jurors who returned their indictment smack in the middle of the U.S. Attorney’s press campaign would not have been affected by that coverage," Molo wrote.

He wrote that at the law school, Bharara “went out of his way to use provocative and colorful language, the effect of which was to ensure that the comments would be widely quoted and thus widely read.”

Bharara opposed the motion on March 5, writing that his statements on Silver’s arrest hewed closely to the complaint.

He wrote that in his press conference, he used the words “alleged” or “allegations” 25 times.

Bharara wrote that he scheduled the speech at the law school far in advance and that no rule prohibited him from describing the charges to the public, placing the charges in context, or speaking broadly on criminal justice.

Though Silver asked for a hearing, Caproni reached a decision without holding one.

She ruled in Bharara’s favor, but rejected his claim that any prejudicial effect of his comments “is magically dispelled by sprinkling the words ‘alleged’ or ‘allegations’ liberally throughout the press conference or speech, or by inserting a disclaimer that the accused is innocent until proven guilty at the end of an otherwise improper press release.”

“This is particularly true given the U.S. Attorney’s use, at times, of particularly odd circumlocutions that appear to be designed only to ‘check the box’ of saying the word ‘alleged,'” she wrote.

Caproni labeled as “pure sophistry” his argument that the timing of his speech at the law school was coincidental.

The government decided when to arrest Silver, but a far more prudent course would have been to delay the arrest until after the speech and to focus on politicians who had actually been convicted, she wrote.

Even if Bharara violated disciplinary or ethical rules, that alone would be insufficient grounds to dismiss the indictment, she wrote.

She cautioned both sides that the case is to be tried in the courtroom and not in the press.

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