Mimesis Law
1 April 2020

Because it’s “Relevant”: Judge Considers Sheldon Silver’s Uncharged Naughtiness (Update)

May 2, 2016 (Mimesis Law) — After being found guilty of honest services fraud, extortion, and money laundering, Sheldon Silver, former Speaker of the New York Assembly, is set to be sentenced on May 3, 2016.  And the Judge who will hand down his sentence will consider Silver’s alleged extramarital affairs, even though such conduct was not in the indictment.   The New York Times has the story:

Federal prosecutors in Manhattan have evidence that Sheldon Silver, the former speaker of the New York Assembly, engaged in extramarital relationships with two women connected to his position in Albany, according to newly unsealed court documents.

The government said it wanted to use evidence of the affairs at Mr. Silver’s sentencing, most likely to counter testimonials from the defense that he was a man of good character, strong ethics and integrity. The alleged relationships also lent credence to the notion that the former speaker had long engaged in questionable behavior, using his influence to dole out preferential treatment in return for favors.

In a case where the government was accused of making improper and prejudicial statements during its media blitz, Silver was never charged with sleeping around outside of marriage (nor could he be, at least not federally).  The jury did not hear about those purported affairs, even though the government tried its best to bring it out during trial.

It’s nevertheless coming out now, because the federal sentencing guidelines permit the sentencing judge to consider a defendant’s “relevant conduct,” which may include separate “crimes,” even if those charges were dismissed, were never proven to a jury, or were never charged, as in Silver’s case.  And in Silver’s case, the disclosure of those facts will surely smear him for unrelated conduct, as well as embarrass his luckless wife and the ladies whom he purportedly kept on the side:

Steven F. Molo and Joel Cohen, lawyers for Mr. Silver, said on Friday morning after the release, “These are simply unproven and salacious allegations that have no place in this case or public discussion.”

Manuel Ortega, a lawyer for one of the women, denied the government’s assertion that his client had had an affair with Mr. Silver. He said the government’s “attempt at smearing the defendant with baseless allegations is not an attempt to seek justice, which is the prosecutor’s obligation, but a way to publicly embarrass innocent families and innocent people.”

During sentencing, the federal government is permitted to use the “everything but the kitchen sink” approach, and the rules of evidence don’t apply when it tries (with great success) to get this stuff in under a “preponderance of the evidence” standard.  Its rationale for admitting these acts in Silver’s case is that these relationships demonstrated a pattern of abuse of power, and that extramarital affairs should be used to rebut any evidence of Silver’s good moral character, which his defense attorneys and community leaders have alluded to in his sentencing memorandum.  Even Silver’s wife has written to the Judge, asking her to take it easy on her hubby, as the government calls for 14 years in the can, citing the ominous Amendment 666 to the sentencing guidelines.

The way the system is set up, it’s as if the government has a safety valve (no, not that safety valve) should it fail to get a conviction on all counts.  They’re telling us, “heads I win, tails you lose.”  All it needs is to get one count through the jury, and pretty much everything else comes in during sentencing.

Think of Miami’s own “Scarface” of the 1980s, Salvador “Sal” Magluta.  He went to trial on charges ranging from murdering witnesses and laundering drug proceeds.  The jury only convicted him on the non-violent money laundering count, which allowed for a 20 year maximum prison term.  The judge nonetheless sentenced him to 205 years, because relevant conduct.   The U.S. Supreme Court refused to hear his case, implying it was cool with the result and the trial court’s application of the law.  Yes, Magluta’s not the poster boy for sentencing reform, and neither is Silver, for that matter.  The point is that the same rules are applied to all: minor participant or kingpin, career criminal or first time offender.

Bottom line is that the sentencing guidelines have enabled this kind of thing, where totally unrelated and even private non-criminal conduct is allowed to be considered when determining how long someone like Silver should be warehoused (and under what conditions).  Silver is 72, and suffering from prostate cancer.  If his private transgressions will tip the scale in favor of him dying in prison, it will be a damn shame.  This is the sort of thing that is outlawed in banana republics, where “moral” transgressions mean a prison sentence, or even death.

As Christopher Hitchens noted with regards to cheating, its rewards and punishments are carefully administered by its practitioners and victims.  Let’s hope that Judge Caproni looks beyond Silver’s adulterous imperfections, and instead renders an appropriate sentence (whatever that means) based on the facts the jury found to convict.

Update: Sheldon Silver was sentenced to 12 years in federal prison by Judge Caproni.  He will serve at least 85 percent of that sentence, as per BOP guidelines. During the sentencing hearing, Assistant U.S. Attorney referred to Silver’s letter of apology as a “remarkable document,” in that Silver did not completely capitulate and offer an unequivocal admission of guilt.

Silver’s defense attorneys asked for lenience, suggesting that a non-incarceratory sentence, with community service, was appropriate.   They told the Judge that Silver had gone through enough, and that his health was failing.
The judge was not swayed by the overwhelming communal — over 100 letters submitted — support for Silver, and deterrence was a main goal of her sentence:
“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Caproni. “Or, if there are no better angels, perhaps the fear of living out one’s golden years in an orange jumpsuit will keep them on the straight and narrow.”
As for whether Silver’s shenanigans with two women on the side affected his sentencing, no one knows for sure, as there were no reports of the Judge alluding to the affairs during the sentencing hearing (no recording devices are allowed inside federal court).  One can only hope it didn’t, but the Judge had previously called his alleged infidelities “as of a piece of his crimes.”

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