Lawyers for former Assembly Speaker Sheldon Silver have filed court papers indicating that they may seek a writ of certiorari from the U.S. Supreme Court to review the case, a signal that they may ask for dismissal of corruption charges instead of a new trial.
Silver’s 2015 Manhattan federal court conviction for trading favors to a developer and a cancer researcher in return for legal referral fees was reversed last week by the 2nd U.S. Circuit Court of Appeals, which said jury instructions on bribery charges were wrong.
The appeals court ordered a new trial, but said that if the jury had been properly instructed, prosecutors had produced sufficient evidence to support a conviction. Even though Silver won, his lawyers asked the 2nd Circuit on Thursday to delay formalizing the judgment “pending the filing of a petition for a writ of certiorari.”
Steve Molo, Silver’s lawyer, declined to elaborate. Legal experts said the most likely explanation is that Silver wants to challenge the finding of sufficient evidence in hopes of getting the charges dismissed, and even if the chances are low there’s not much risk to the move.
“It’s kind of like a no-lose proposition,” said Josh Dratel, a Manhattan white-collar criminal defense lawyer. “You have the option of going to the Supreme Court and trying to get further relief.”
The 2nd Circuit found that jury instructions at Silver’s trial didn’t comply with a new Supreme Court decision narrowing the type of acts required to convict public officials in a quid pro quo bribery scheme to formal exercises of government power, not just meetings or phone calls.
At trial, prosecutors had presented evidence of both acts that would qualify under the new standard — such as pushing state grants and supporting legislation — and acts that wouldn’t, like meeting with lobbyists. The 2nd Circuit said that without proper instructions to jurors, it couldn’t tell if they relied on acts that met the new standard.
While ordering a new trial, however, the court said claims that the evidence was insufficient to support a conviction were “without merit.”