The U.S. Supreme Court decision overturning corruption charges against the former governor of Virginia continues to haunt prosecutors' efforts against some of the state’s highest elected officials.
It hit home again Tuesday, when a federal appeals court reversed the conviction of Dean G. Skelos, at least temporarily derailing the U.S. attorney’s effort to put behind bars the former State Senate majority leader and his son, Adam. The decision also focuses attention on new limitations prosecutors face when trying to root out public corruption.
Defense attorneys for Skelos and former Assembly speaker Sheldon Silver are eagerly embracing the Supreme Court decision that freed former Virginia Gov. Bob McDonnell. They say the new ruling may provide good news for others awaiting corruption trials – including former Erie County Democratic Chairman G. Steven Pigeon.
Paul J. Cambria Jr., who is defending Pigeon against bribery and extortion charges, said the decision of the Second Circuit U.S. Court of Appeals underscores the limits that the high court established. Because of the McDonnell decision, Cambria said, prosecutors, judges and juries now must consider actions that may be political and even “distasteful,” but not necessarily official.
“The Supreme Court has narrowed it so as not to sweep into any one direction what clearly is not criminal conduct,” Cambria said. “It has an impact on all kinds of cases involving political corruption, including Pigeon or anyone else.”
Former New York Attorney General Dennis C. Vacco was among 46 former state attorneys general who signed a friend of the court brief in the McDonnell case urging the high court to differentiate between official and political actions.
“So McDonnell picks up the phone and says to his people: ‘My friend wants a meeting,’ ” Vacco said, adding no further action was then taken.
“That happens every day. That motivated me to sign the brief.”
Vacco said the appellate decision stemmed from the Skelos jury not being instructed in the details of what constitutes an official act, as determined by the McDonnell decision. He also noted the court is applying the McDonnell decision retroactively, because the Supreme Court issued its ruling six months after the Skeloses were convicted.
These new tougher standards are now re-enforced in cases involving two of the three most powerful officials in Albany, he said.
“All of this creates an uphill battle for prosecutors,” Vacco said. “Now, in every case, there will be issue of ‘this is a political act and not an official act.’ ”
But the federal prosecutors in Manhattan who obtained the conviction of Skelos say they are not done. Joon H. Kim, the acting U.S. attorney who succeeded Preet Bharara as chief federal prosecutor in the Southern District of New York, immediately promised to retry both Skeloses.
“While we are disappointed in the decision and will weigh our appellate options, we look forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos and Adam Skelos’s guilt and again give the public the justice it deserves,” Kim said. “Cleaning up corruption is never easy, and that is certainly true for corruption in New York State government.
“But we are as committed as ever to doing everything we can to keep our government honest,” he continued. “That is what we will do in this prosecution as well.”
In its decision, the appellate court cited the same basis for overturning the Skelos conviction as for overturning Silver's conviction. The Skeloses were convicted of conspiracy, bribery and extortion in a case that centered around allegations they exploited the majority leader’s office for personal gain. The prosecutors contended the younger Skelos received a no-show job and consulting fees totaling hundreds of thousands of dollars in return for favors.
The father and son appealed their convictions based on the McDonnell case and the Supreme Court’s interpretation of what constitutes official corruption.
The same appeals court previously ordered Silver's corruption case be referred to the lower court again for a new trial.
Cambria noted that the appellate decisions in both the Skelos and Silver cases demonstrate that the federal prosecutors were making corruption charges on an “overly broad” basis.
Cambria also hinted at Pigeon's defense, citing hockey tickets as gifts that might not have affected official duties. Pigeon is accused of awarding Buffalo Sabres tickets to former State Supreme Court Justice John A. Michalek “for having violated his duty as a public servant.” Michalek previously pleaded guilty to charges that he accepted two tickets for box seats at a Buffalo Sabres game.
Good government groups like Common Cause/NY emphasized Tuesday that the “facts in Skelos case are not in question.”
“Mr. Skelos used his position in government to extort favors for his family in return for taxpayer funded resources,” Executive Director Susan Lerner said. “Despite the Supreme Court’s logic defying decision in McDonnell, a New York jury found this conduct to be clearly corrupt.
“The U.S. Attorney’s Office under Preet Bharara’s leadership won its case, and we have every expectation that the people can win again at retrial,” she added. “Dean Skelos is absolutely guilty of corrupting his office and violating the public trust of 19 million New Yorkers.”
And State Sen. Todd Kaminsky, a Democratic former federal prosecutor representing parts of Long Island, Brooklyn and Queens, questioned whether even “the most brazen acts are beyond the grasp of the law.”
“Today’s ruling is proof that we cannot rely solely on federal prosecutors to clean up our state’s corruption,” he said. “We need stronger anti-corruption laws and greater powers to local district attorneys to enforce them now. The time for complacency and waiting for others to take on corruption must end.”