Mimesis Law
25 April 2017

With Powerful Defendants, “Speedy Jailing” Isn’t Easy

July 27, 2016 (Fault Lines) — News of prosecutors’ request for the “speedy jailing” of  former New York lawmakers Sheldon Silver and Dean Skelos following convictions for public corruption is not just additional proof of how lucky those two are compared to most convicted defendants, but also an interesting opportunity to view prosecutors’ general love of jail in a situation where the tables are largely turned. The reason prosecutors believe the two should be jailed is simple enough:

A recent U.S. Supreme Court ruling reversing the conviction of a former Virginia governor is no reason to let two former top New York legislators remain free pending appeals of their convictions, federal prosecutors on Monday told judges overseeing the cases.

As a general rule, most criminal defendants who are convicted and sentenced are not allowed to remain out of custody while they appeal. Release during appeal seems like something that happens far more often in federal court than in state courts, but it’s still not particularly common overall. It’s also not common for defendants to be prominent former politicians and the Supreme Court of the United States to have just reversed a conviction in an arguably similar case, however:

The prosecutors argued in papers filed in Manhattan federal court that the facts surrounding the convictions on public corruption charges last year of Democratic former state Assembly Speaker Sheldon Silver and Republican ex-Senate Majority Leader Dean Skelos are more than adequate to survive changes in how the nation’s high court now defines public corruption.

Lawyers for Silver and Skelos asked for them to remain free pending appeals after the Supreme Court last month reversed the conviction of Virginia Republican ex-Gov. Robert McDonnell, who left office in January 2014.

Whenever someone’s case gets reversed, and especially when the Supreme Court does it, people with similar cases tend to scramble to see if they can derive some sort of benefit from the ruling. It’s understandable. Sometimes, there’s something to it. Other times, there’s no similarity whatsoever to the case that resulted in reversal except for maybe the offense of conviction.

When the latter is true, people still do their best to draw a comparison. Mental gymnastics notwithstanding, it frequently ends up with a lawyer doing a lot of research and ultimately spending a lot of time either explaining to a client why the widely-publicized ruling isn’t going to help or arguing to an irritable judge why it should.

Lucky for them, Silver and Skelos aren’t normal criminal defendants. Although they were convicted and sentenced, they were allowed to remain out of custody because the McDonnell case might affect their convictions. Now, prosecutors are simply arguing it isn’t going to matter. Their arguments are clear as to Silver:

Prosecutors said McDonnell has no relevance to the issues in Silver’s appeal.

McDonnell will not save Silver on appeal, nor should it entitle him to bail pending appeal,” they wrote.

They said the judge in the Silver case instructed the jury at the urging of defense lawyers that they could not convict Silver if they found that he understood payments were made to him “only to cultivate generalized goodwill or nurture a relationship” rather than in exchange for specific official acts the legislator would take on behalf of those who made the payments. They noted that the judge in the McDonnell case declined to make a similar instruction over the objection of defense lawyers.

And it’s pretty much the same argument as to Skelos:

In a separate court filing, prosecutors wrote that guilty verdicts on all eight counts against Skelos “were based on official acts taken by Dean Skelos that fall squarely within the requirements of McDonnell.”

Absent a response from Silver’s and Skelos’ lawyers, prosecutors appear to have a point. If it really is as simple as they make it out to be, the ruling in McDonnell isn’t going to matter at all. If the court in Silver’s case used the exact instruction the judge in McDonnell wouldn’t, and if the conduct underlying Skelos’s conviction similarly fit within the requirements set forth in the McDonnell case for a conviction based on the law in question, then neither defendant is likely to succeed on appeal based on the new case as it applies to those issues. The reasoning behind their release on appeal no longer applies.

Of course, it almost certainly isn’t that simple. Don’t hold your breath for Silver’s and Skelos’ lawyers to decide against filing a brief. The McDonnell opinion is complex. The Supreme Court spends dozens of pages parsing some very specific language. What does or does not constitute an “official act” is a lot more complicated than you probably think. Silver and Skelos, who no doubt have some very skilled lawyers working for them, are sure to file complex, lengthy appeals. The prosecutor, having determined that it’s not going to succeed probably without having even read the defense’s opening brief, is seeking to just get on with the punishment. In essence, they’re trying to make the appeal moot, to go ahead with the very thing the appeal is intended to avoid.

What’s fascinating is how the tables are turned. Usually, the poor defendant sits in custody fighting a difficult uphill battle in an appellate system with a strong presumption toward upholding convictions. Silver and Skelos, on the other hand, are out. More importantly, they have a trial judge who has suggested by letting them remain free that their eventual appeal might have merit. It’s the complete opposite of what most people experience.

What’s the same as always, though, is the prosecutors’ desire for “speedy jailing.” For prosecutors across the nation, “justice” is just another word for prison. When the system does what it normally does and puts people in jail early and often, it’s not quite as blatant. The situation with Silver and Skelos may highlight how differently the system treats people of differing levels of importance, but it also highlights how prosecutors and their love of incarceration remain the same.

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