Experts: Expect another Skelos conviction

Former state Senate Majority Leader Dean Skelos got his corruption conviction vacated on Tuesday, but several legal experts described the outcome as a case of justice delayed – and predicted that Skelos will likely be convicted once again.

A panel of judges from the Court of Appeals for the Second Circuit on Tuesday overturned the 2015 joint conviction of Skelos and his son Adam based on a narrowing legal framework of what constitutes corruption for elected officials after the U.S. Supreme Court decision McDonnell v. United States.

The ruling hinged on the overly broad guidance the judge in the Skelos case provided to the jury in defining the “official acts” of a public official accused of a corruption. The judge had told the jury that such actions could include “acts customarily performed by a public official with a particular position.”

But under the new McDonnell precedent, the everyday actions of public officials, like attending meetings or expressing support for certain policies, aren’t enough on their own to warrant a conviction in a corruption case.

“In sum, because we cannot conclude that the instructional error as to ‘official acts’ was harmless beyond a reasonable doubt, we are obliged to vacate defendants’ convictions in their entirety and to remand the case for a new trial,” the appeals panel wrote.

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Preet Bharara, the former U.S. Attorney for the Southern District who led the original case against Skelos, tweeted: “Not unexpected, but still disappointing, given there was more than enough evidence to convict as the appeals court itself found.”

Federal prosecutors had argued that Skelos, who had been charged with fraud, extortion and bribery, used his public office to direct payments to his son through companies that had business before the state. Prosecutors have announced their intention of a retrial.

“As with Sheldon Silver, SDNY will retry Dean and Adam Skelos. SCOTUS made it harder to punish corruption, but justice should prevail here,” Bharara said in another tweet.

Zephyr Teachout, law professor at Fordham University and a former candidate for governor and Congress, agreed.

“The Skelos case has always had some of the strongest evidence of any of these corruption trials and I’m confident that Skelos is going to be convicted upon retrial,” Teachout told City & State.

Jennifer Rodgers, lecturer at Columbia Law School and executive director of the school’s Center for the Advancement of Public Integrity, said that the strength of the case was not in question.

“The evidence is strong,” she said. “The reason that the two Skelos’s convictions were overturned was really a legal technicality, not having to do with the strength of the evidence.”

Even the appeals court ruling alluded to the strong evidence brought by prosecutors, which kept the panel from reversing the convictions.

“As to the official act elements of defendants’ crimes, although we identify charging error, we nevertheless conclude that the evidence is sufficient to allow a correctly charged jury to find this element proved beyond a reasonable doubt,” the panel wrote.

But Skelos still has a chance. “Anytime there’s a retrial, you never know what’s going to happen,” Rodgers said.

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Paul DerOhannesian, a former Albany County prosecutor now in private practice, concurred.

“There are still too many possible surprises that can happen to predict (the outcome of a retrial),” he said. “Any defendant should be concerned walking into a trial or even a retrial – particularly a retrial where they were convicted. But you’re so grateful for that opportunity.”

DerOhannesian said the defense team gains an advantage in a retrial, since attorneys already know what evidence is likely to be presented against their client and they have time to craft a new defense.

Former Assembly Speaker Sheldon Silver’s corruption conviction was vacated on the same grounds in July, and some observers anticipated a similar ruling was for Skelos. Silver’s retrial has been set for April 2018, and Skelos’ would likely come after.

Who has the better chance to win in the second time around?

“I don’t know!” said Rodgers. She said that Silver’s intent seemed clearer, but the prosecutors have audio from wiretaps as evidence in the Skelos case. “Anytime you hear from a defendant's own words, it really sticks with a jury,” she said.

“They’re both strong cases,” Rodgers said. “I think the government will win them both again.”