Malcolm Smith facing big legal, political challenges

Ian Weinstein in Queens Chronicle, April 11, 2013

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When details first started coming out following the corruption arrest of state Sen. Malcolm Smith (D-Hollis), Professor Michael Krasner of Queens College just shook his head.

Krasner, a political science professor at the school school since 1970, has long been an observer of Queens politics.

“It is really fantastic that anybody thought Malcolm Smith, with his position as a Democratic senator, an unsavory reputation and no particular accomplishments or reputation for competence or integrity — in fact, quite the opposite — was somehow going to cross over to the Republican Party and become the nominee for mayor,” he said.

“It’s mind-boggling,” he said. “Did he really think he had a chance? It doesn’t seem to make any political sense ... One of my colleagues asked ‘What were they smoking?’”

Smith and Councilman Dan Halloran (R-Whitestone) were among six people arrested on federal corruption charges on April 2, allegations that federal authorities claim stem from an attempt by Smith to bribe his way onto the Republican line in November’s mayoral election, with Smith allegedly offering cash bribes and state funding for transportation projects.

Halloran is charged with receiving $45,000 in bribes in part to act as a go-between with Smith and GOP leaders and for other acts not directly linked to Smith.

Queens County Republican vice chairman Vince Tabone and Bronx GOP Chairman Joseph Savino also have been charged in the alleged scheme, as have Mayor Noramie Jasmin and Deputy Mayor Joseph Desmaret of upstate Spring Valley.

In his alleged quest for what so many, such as Krasner, feel was an impossible goal from the start, Smith could face 45 years if convicted of extortion, wire fraud and conspiracy.

Ian Weinstein, an associate dean and professor at the Fordham University School of Law who practices criminal defense in federal and state courts, said Smith’s defense team faces significant challenges if the case goes to trial.

“It’s still in the early stages,” Weinstein said. “Giving him the presumption of innocence, it seems like these are very substantial charges. It’s very likely his political career is done, as well as a significant risk of going to prison.”

Published reports have cast aspersions on the credibility and reputation of a man who supposedly is the government’s cooperating witness, who acted with an undercover FBI agent posing as a wealthy real estate developer.

Weinstein said that can help, up to a point.

“Attacking a snitch is the bread and butter of any criminal defense lawyer,” he said. “It gives you a lot of ammunition. The problem is, if there is corroborating evidence, juries may not like the snitch but will tend to believe him.”

And if that corroborating evidence includes a defendant’s voice on an FBI recording — both the cooperating witness and the agent identified as ‘“Raj” were recording conversations with the accused, according to U.S. Attorney Preet Bharara — the defense’s problems really begin.

“If the prosecution has that, or a video of hand-to-hand transfers, that is really difficult evidence,” Weinstein said.

Some of Smith’s defenders, including some who have called the Chronicle, suggested that Smith did nothing that Mayor Bloomberg has not done, writing large checks to various parties in his quest to get his name on other ballot lines in his run for a third term.

Krasner even suggested there were some similarities.

“It’s basically still pay to play,” he said.

But Weinstein said an “everybody does it” defense is unlikely.

“I don’t think that’s very attractive to the prosecution during negotiations,” he said. “It’s not attractive to juries during a trial, and it’s not attractive to a judge at sentencing.”

Smith’s attorney, Gerald Shargel, has not returned messages left at his Manhattan office seeking comment for this story, particularly whether or not his client would consider a plea bargain or turning evidence himself.

Weinstein said pleas are not unheard of in similar cases. But he also said at this point prosecutors may not feel they need the cooperation of Smith or anyone else charged.

“Things have tightened up since the Joe Bruno case got overturned,” Weinstein said. “Prosecutors now look to gather a lot more evidence before an arrest. On the other hand, prosecutors always like to have more evidence.”

He was referring to the 2009 corruption conviction of former Republican state Senate leader Joe Bruno (R-Rensselaer), who was convicted on corruption charges in 2009 before an appeals court ordered a new trial. Initially slated to begin in February, the trial has not yet been rescheduled.

State Sen. Jeff Klein (D-Bronx and Westchester), who along with Smith is a breakaway Democrat in the Independent Democratic Conference, issued a press release last week saying that Smith had been stripped of his leadership position in the caucus, which is supposed to cost him some bonus pay.

Published reports also said Smith would be stripped of some staff members.

Multiple calls to Klein’s Albany office attempting to determine how many aides would be cut, how much money is involved and where that money would go have not been returned.

All appeared to be normal in a visit to Smith’s Hollis office on Monday, with staffers busy and a spokeswoman saying calls are being answered and constituent service is continuing as usual.

“Business as usual” was also a phrase used by Bharara on April 2 to characterize the corruption culture in Albany.

Krasner used it too in a telephone interview with the Chronicle.

“I think it’s too stringent to say ‘Business as usual,’ but it’s not entirely off the mark,” he said. “You know you have a lot of corruption in New York City and New York State politics. Malcolm Smith, Dan Halloran and the others — it’s an extreme story to be sure. It’s bizarre in a certain way, the entire scale of it.”

But he said it is not unusual for money to change hands in return for political favors in New York, again citing lifelong Democrat Bloomberg, who wrote checks quite legally when seeking to run as a Republican and Independent.

Krasner said Gov. Cuomo, who has spoken at length about the need for reform, will be forced to take some sort of action, particularly with the subsequent arrest of Assemblyman Eric Stevenson (D-Bronx) in a separate bribery case on April 4.

He does not think the governor has any political concerns of his own.