NEW YORK - Lawyers for state Assemblyman Sheldon Silver filed a motion Tuesday to dismiss his indictment on the ground that Preet Bharara, the top federal prosecutor in Manhattan, orchestrated a “media firestorm” that deprived their client of the presumption of innocence and prejudiced his case in court.
“The effect of the U.S. attorney’s actions is to convict in the media before even calling his first witness,” Silver’s lawyers said in the motion, citing what they characterized as Bharara’s “improper extrajudicial statements.”
Silver, a Manhattan Democrat who at the time of his arrest was the speaker of the state Assembly, is charged with mail and wire fraud and extortion under the color of official right. At a hearing in U.S. District Court in Manhattan, Silver, through one of his lawyers, pleaded not guilty to the charges contained in an indictment returned last week.
Silver, 71, standing in the corridor after the court hearing, said only, “I am confident I will be vindicated in the courtroom.”
Steven F. Molo, one of Silver’s lawyers, told Judge Valerie E. Caproni at the hearing that the defense was filing the dismissal motion, claiming Bharara’s comments had ignited “nothing less than a media firestorm.”
Molo cited a news conference that Bharara, the U.S. attorney for the Southern District of New York, gave on the day charges were announced; a speech he gave the next day at New York Law School; and an interview he gave to MSNBC, all before the grand jury returned the indictment.
“It was orchestrated,” Molo contended, saying the action had the “significant effect of compromising” the pending grand jury proceeding and “depriving Mr. Silver of his right to a presumption of innocence.”
In court, Carrie H. Cohen, an assistant U.S. attorney, called the allegations “baseless” and said her office welcomed the opportunity to respond. “There was certainly no prejudice in the grand jury proceeding,” she added.Silver, a Lower East Side Democrat who has served in the Assembly since 1977 and was its speaker for two decades, is accused by the government of exploiting his position to obtain nearly $4 million in corrupt payments through two law firms over the last 15 years. Prosecutors say Silver masked his illicit earnings by portraying the money as legitimate income from practicing law.
In one scheme, the government says, Silver provided state grants to a doctor who referred asbestos victims to a personal injury law firm, Weitz & Luxenberg, which paid Silver a portion of the money it earned from the cases. He is also accused of steering real estate developers to another law firm, Goldberg & Iryami, which is said to have paid him kickbacks disguised as referral fees.
Cohen said in court that prosecutors would call 20 to 25 witnesses and that their case would take about three weeks to present. Molo said the defense case would take at least a week. Caproni has not yet set a trial date.
In their motion filed Tuesday, Silver’s lawyers accused Bharara of having prosecuted their client’s case “full-bore through the press.”
“During his many public appearances,” the defense wrote, “he has ventured far beyond the neutral recitations of the charges that once accompanied such events. Instead, he has offered his uncensored views about Mr. Silver’s guilt, his character and the severity of his crimes - always in inflammatory, over-the-top language that targets not just Mr. Silver but the entire New York State government.”
The lawyers wrote that six hours before Silver was arrested on the morning of Jan. 22, when a criminal complaint was still under seal, news reports, attributed to unnamed “law enforcement sources,” began appearing about the speaker’s imminent arrest and the substance of the charges against him.
The lawyers also cited Bharara’s news conference about the case later that day, and his law school speech the next day.
Bharara “continued his publicity campaign” two weeks later, the defense lawyers wrote, with the MSNBC interview. The indictment was returned Feb. 19, the lawyers wrote, “right in the midst of that media circus.”
The lawyers asked Caproni, at a minimum, to poll the grand jurors who indicted Silver and to order disclosure of the normally secret grand jury minutes.
“It strains credulity to think that grand jurors who returned their indictment smack in the middle of the U.S. attorney’s press campaign would not have been affected by that coverage,” the lawyers wrote.