Silver, Skelos cases showcase differing tactics

By not putting up a defense, attorneys for former state Assembly Speaker Sheldon Silver simultaneously are playing a short game and long game.

It's just one of the legal tactics on display in a federal courthouse where the once most-powerful men in the New York State Legislature are on trial for alleged corruption. The prosecutors' opening strategy is clear too in the other ongoing case, that of Sen. Dean Skelos (R-Rockville Centre), where the key seems to be: first, convince the jury the defendants are bad actors.

Silver (D-Manhattan), who controlled the Assembly for 20 years, is accused of pocketing $4 million in illegal kickbacks disguised as legal fees in exchange for steering state grants and legislation. The office of U.S. Attorney Preet Bharara has marched to the witness stand a mesothelioma doctor who allegedly referred patients to Silver's law firm in exchange for state grants and several real estate executives who sent business to a separate law firm that allegedly gave Silver a kickback.

Silver's defense team elected to call no witnesses.

Instead, they asked federal Judge Valerie Caproni to acquit their client before the jury begins deliberating, claiming prosecutors hadn't met the legal burden of proof. Failing that, they will make a spirited closing argument.

The possible three-pronged strategy here: They're confident the case lacks a "smoking gun"; neither Silver nor anyone else loomed as a sympathetic witness; and, perhaps most intriguingly, they are preserving all their options to fight on appeal.

If they lose the trial, their appeal might focus on the legality of the "honest services" fraud charges. Remember, a few years ago former Senate Majority Leader Joseph L. Bruno initially was convicted of honest services fraud but later saw the conviction vacated and won acquittal -- after the U.S. Supreme Court raised the burden of proof for what constitutes honest services fraud.

Tactics are different in the Skelos trial so far.

It seems prosecutors tried to first get the jury to dislike the defendants -- the senator and his son, Adam Skelos -- before moving on to the details and charges. (Skelos is accused of pressuring three companies to hire his son in exchange for favorable legislation and contracts.)

Prosecutors presented to the jury wiretapped conversations and emails that could especially make Adam look bad. In one, Adam told a supervisor who was complaining about his lack of attendance he'd "smash your [expletive] head in."