NEW YORK CITY – Former New York State Assembly Speaker Sheldon Silver, under conviction for corruption, claims that testimony about the mesothelioma foundation of Madison County asbestos lawyer John Simmons prejudiced his jury.
He moved for a new trial on Jan. 21, arguing among other points that District Judge Valerie Caproni should have excluded evidence about the Simmons Foundation.
"That evidence was irrelevant and compromised the fairness of the trial,” wrote his lawyers, Joel Cohen and Steven Molo of New York.
Gregg Kirkland, former chief executive of the Simmons firm, testified on Nov. 10.
His testimony showed that cancer researcher Richard Taub of Columbia University referred patients to the firm while the foundation gave money for Taub’s research.
Jurors had previously heard Taub testify that he referred patients to Silver while Silver awarded state research grants to Taub.
Jurors found Silver and Taub engaged in quid pro quo, and they convicted Silver of fraud, extortion and money laundering.
In the motion for new trial, Silver's lawyers objected to “irrelevant and prejudicial evidence suggesting that Dr. Taub exchanged patient referrals for donations with the Simmons Foundation.”
"That evidence improperly invited the jury to infer that Dr. Taub must have had the same sort of arrangement with Mr. Silver," they wrote.
They wrote that the foundation donated $3,150,000 to Taub’s research center.
"Following that donation, Dr. Taub referred mesothelioma patients to the Simmons law firm associated with that foundation," they wrote.
"The government introduced evidence showing that Simmons internally tracked the number of referrals it received from physicians to whom it had made donations.
“That evidence suggested that Dr. Taub and the Simmons Foundation had an arrangement to exchange referrals for donations.
"And the government’s obvious purpose in introducing the evidence was to create the impression that Dr. Taub must have had a similar quid pro quo arrangement with Mr. Silver as well.
“That line of questioning invited the jury to convict based on a false comparison. The Simmons Foundation is a private entity, and the money it gave Dr. Taub was a donation, not a grant.
"The funding that Dr. Taub received from the state, by contrast, was a grant subject to entirely different standards and processes.
“The Simmons evidence invited the jury to disregard that testimony and find that Dr. Taub must have been exchanging referrals for grants with Mr. Silver because he was exchanging referrals for donations with Simmons.”
Cohen and Molo separately argued that the government denied Silver a fair trial by introducing his annual statements of financial disclosure.
They wrote that he voluntarily revised them to clarify that his practice included fees from Weitz and Luxenberg, a New York asbestos firm.
“Mr. Silver’s disclosure forms were thus complete and correct. But even if the government disagreed, that would not justify making that collateral dispute a key issue in the case," they wrote.
"According to press reports, one juror actually changed her mind and agreed to convict Mr. Silver based on the disclosure forms.”
They also objected to evidence about campaign contributions Silver received from a company he favored in real estate transactions.
"Campaign contributions are a divisive and controversial topic. For that reason, courts have recognized that they are inherently prejudicial," they wrote.
"The campaign contribution evidence invited the jury to conclude that New York politics is awash with money, and that Mr. Silver, along with other New York State legislators, was beholden to outside money generally and real estate developers specifically.”
On the same date, aiming even higher, Silver asked Caproni to acquit him.
"No rational trier of fact could have found Mr. Silver guilty of the charges against him,” Cohen and Molo wrote.
"No witness testified to any sort of agreement with Mr. Silver to receive a benefit in exchange for an official act," they wrote.
“Nor did any witness testify that Mr. Silver used his political office to deprive them of such a benefit.
“The evidence showed that Dr. Taub sent Mr. Silver referrals for legitimate reasons, not least of which was that Weitz and Luxenberg was a top asbestos firm.”
They wrote that Taub testified that he hoped Silver would convince Weitz and Luxenberg, not the state, to fund mesothelioma research.
A footnote tied the acquittal motion to the new trial motion.
"Mr. Silver requests that, upon granting the instant motion, the court also conditionally grant his motion for a new trial pursuant to Rule 33 in the event that the judgment of acquittal is later vacated or reversed," they wrote.
Robert Kry and Justin Shur of New York City also worked on the motions.
Caproni has set Silver’s sentencing in April.