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Long IslandPoliticsSpin Cycle

Judge won't dismiss Silver charges, but criticizes prosecutor Bharara

Preet Bharara, the U.S. attorney for the Southern

Preet Bharara, the U.S. attorney for the Southern District of New York, on Dec. 5, 2013. Credit: Bryan Smith

ALBANY - A judge Friday criticized U.S. Attorney Preet Bharara for skirting the rules of prosecutorial conduct and orchestrating a "media blitz" following the arrest of former Assembly Speaker Sheldon Silver. But the judge declined to dismiss the case.

U.S. District Court Judge Valerie Caproni said Bharara, in speeches and television appearances following Silver's arrest, "strayed so close to the edge of the rules governing his own conduct" as to nearly prejudice the extortion and fraud case against Silver.

Caproni called Bharara's claim that it was coincidence he had a speaking engagement the day after Silver was arrested "pure sophistry." She also cited the federal prosecutor's appearance on MSNBC a few weeks later and his office's Twitter remarks broadly bashing New York politicians.

"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," Caproni wrote.

But Caproni decided that Silver fell short of showing that Bharara's conduct poisoned a grand jury that indicted Silver three weeks after his arrest was announced or spoiled the speaker's future chances for a fair trial.

"Nevertheless, the parties are cautioned that this case is to be tried in the courtroom and not in the press," Caproni concluded.

In a statement, Joel Cohen and Steven Molo, Silver's attorneys, said: "We recognize the high bar to dismissal, but are pleased that the court took exception to the conduct of the United States Attorney and cautioned against future use of the tactics employed against Mr. Silver. We look forward to continuing our attack on the merits of the case and our client's ultimate vindication."

Bharara's office didn't comment immediately.

Silver was arrested in January on a five-count criminal complaint that alleged that one of the state's most powerful politicians steered real-estate legislation and funneled state medical research funds in return for $4 million in illegal kickbacks disguised as legal referral fees. The charges hinge on claims Silver deprived the public of his "honest services as an elected legislator and Speaker of the Assembly."

The next day, Bharara gave a speech at New York Law School lambasting state political culture. He made similar remarks a few weeks later on MSNBC, adding that Silver had "sold his office to line his pockets."

A grand jury indicted Silver in late February on three counts, dropping two conspiracy charges. Silver’s attorneys filed a motion asking Caproni to dismiss all the charges or, at minimum, poll the grand jury to determine whether it was influenced by the prosecutor's remarks. Caproni turned them down.

"Even if the court were to accept the defendant's view that the U.S. Attorney's comments were improper, there is no evidence that the U.S. Attorney's comments substantially influenced the grand jury's decision to indict," the judge wrote.

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