A federal judge in White Plains on Monday decided to poll jurors about their ability to continue sitting in the corruption trial of former Queens state Sen. Malcolm Smith before deciding whether to declare a mistrial that would require beginning the trial over again.
U.S. District Judge Kenneth Karas said he would not dismiss the bribery charges against Smith and two co-defendants based on prosecutors' mid-trial disclosure of dozens of taped calls by their star informant, but he would give the defense a continuance to digest the new information.
The 15 jurors who have heard evidence for two weeks were told the case would be over by the end of June. Karas said he would tell them Tuesday the continuance and other delays will push it back to July 18 or later, and ask how many can serve.
"If we get all 15, we go," Karas told lawyers. "If we get only 12, there's a pretty good argument that it would be a foolish endeavor. If the jury says no, then we have a mistrial."
Smith, an eight-term Democrat, and former New York City Councilman Dan Halloran, of Queens, are accused of conspiring to bribe former Queens Republican official Vincent Tabone, a co-defendant, and other GOP county leaders to win Smith a spot in the 2013 Republican mayoral primary.
The three men were set up by an FBI agent posing as a wealthy businessman willing to pay bribes for favors from former Senate majority leader Smith, and by informant Mark Stern, an Orthodox Jewish Rockland County developer and political donor who faced fraud charges.
Last week, prosecutors gave defense lawyers hundreds of Stern's calls, many of them in Yiddish, that were recorded while he was working for the government and his phone was tapped for nearly a year.
Defense lawyers said many of the calls were relevant to their clients' defenses and might help them show entrapment. They asked the judge to dismiss the charges or declare a mistrial and let them start over. Prosecutors said the calls were mostly irrelevant and the trial could go on.
The judge said he would have to find that the failure to disclose the recordings earlier was a result of misconduct by prosecutors in order to dismiss the charges, but the evidence was that it was an honest disagreement about what was relevant to the defense.
"They were judgment calls," he said.
A lawyer for Halloran, who has contended that prosecutors selectively targeted Republicans, said in a court filing that on the newly released calls Stern discusses GOP figures ranging from former vice presidential nominee Paul Ryan to Sen. Marco Rubio of Florida and Sen. Tim Scott of South Carolina.
Prosecutors have said some of the calls are still sensitive, focusing on ongoing investigations, but it was not clear whether the prominent names came up during idle chatter by Stern with associates or whether an investigation touched on them.