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Former Assembly Speaker Sheldon Silver facing retrial on Monday

Former New York State Assembly Speaker Sheldon Silver

Former New York State Assembly Speaker Sheldon Silver exits the federal courthouse in Manhattan after a pretrial hearing in early April. Credit: Charles Eckert

Former Assembly Speaker Sheldon Silver’s retrial on corruption charges is scheduled to begin Monday in federal court in Manhattan, but his new shot at vindication is expected to be a virtual carbon copy of the 2015 version that ended in his conviction and a 12-year prison sentence.

The ex-Albany power broker won a reprieve after the Supreme Court in 2016 narrowed the range of “official actions” prohibited by bribery laws, but he’ll be back in the same courtroom with the same judge, who has served notice that she’ll allow the same evidence and still sees some of his alleged conduct — like state grants in return for law-firm referrals — as indisputably criminal.

“This is not what this case is going to rise and fall on,” U.S. District Judge Valerie Caproni told Silver and his lawyers at a mid-April hearing. “You’ve got some clear official action here.”

In a verdict celebrated at the time as a landmark setback for Albany’s pay-to-play culture, Silver, 73, a Manhattan Democrat who had become a Capitol institution, was convicted of two schemes in which he allegedly made $4 million in legal referral fees for abusing his power as speaker.

In one, he sponsored $500,000 in legislative grants to mesothelioma researcher Dr. Robert Taub, who referred asbestos patients to a Silver-linked personal injury law firm. In the other, he was found guilty of profiting from legal business sent to a second law firm by mega-landlord Glenwood Management and another developer in return for his backing on real estate legislation.

The Supreme Court decision months later in a case involving Virginia Gov. Robert McDonnell limited anti-corruption laws to schemes involving the “formal exercise” of government power, not lesser favors like meeting with a lobbyist for a donor or benefactor.

Although Silver’s legislative grants and votes qualified, his conviction was reversed because prosecutors also put in evidence of a lot of other behavior that might not qualify, and jury instructions didn’t correctly describe the new standard. But with proper jury instructions, experts say, a case with allegations like those against Silver should still be viable.

And at Silver’s retrial, prosecutors say all the activities that may no longer be official acts — meetings with lobbyists, helping Taub set up a mesothelioma charity race and find jobs for his kids, using official letterhead to oppose a methadone clinic near a Glenwood property — can still be put before the jury as “circumstantial evidence.”

The result: Silver will face the same array of evidence of cozy relationships that makes him look bad, and a second trial that looks very much like the first.

“The government will be able to present all the evidence it presented the first time while tailoring its arguments about what counts as an official act,” said Joshua Colangelo-Bryan, a Manhattan defense lawyer at Dorsey & Whitney. “ . . . Prosecutors have as a general matter tremendous authority to present evidence of conduct that is not charged.”

The trial is expected to last four to six weeks, and with jury selection already largely completed, prosecutors say when they kick off their case this week their third witness will be Taub — the one-time Columbia University researcher who was pivotal to one of the alleged schemes.

Now 81, he is in fragile health, with medical problems that forced a two-week delay. At the first trial, he was ambiguous about his arrangement with Silver — saying that he had no “explicit” agreement to trade patient referrals for grants, but cultivated Silver by acceding to his requests.

Prosecutors say they expect some unspecified “changes” in the testimony, while Silver’s defense team says that ambiguity remains at the core of their strategy — to try to convince jurors that Silver’s receipt of legal outside income was separate, and his official behavior was based on the merits of legislation and grants rather than a “quid pro quo” for a bribe.

“If he gets money as a quid pro quo for an official act, that’s bad,” defense lawyer Michael Feldberg told Caproni. “Getting money by itself is lawful.”

In 2015, however, it took jurors only three days to reject that defense, and experts say publicity about Albany corruption has hardly abated since then.

“Members of the jury, unless they’ve had a lobotomy they’re familiar with corruption,” said Albany Law School professor Vincent Bonventre. “And people are pretty sick and tired of it.”

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