Judge Kenneth M. Karas declared a mistrial Tuesday in the corruption trial against state Sen. Malcolm Smith, reports said.
The decision was made after it was revealed that the United States Attorney’s office failed to turn over 9,000 recorded conversations to defense lawyers until well into the trial, prompting several jurors to say that they could not wait for the defense to process the new recordings, according to the New York Times.
The recordings, almost 300 hundred of which are in Yiddish, were made or received by Moses Stern, a Rockland County developer who became a government informer in order to avoid a prison sentence.
The case against another defendant, the Queens Republican leader Vincent Tabone, was also declared a mistrial. But the case against Dan Halloran, a former councilman, will continue next week, according to the Times. A new trial date of Jan. 5, 2015 is set for Smith and Tabone.
Smith, who currently holds office and is seeking reelection, is accused of trying to bribe his way into a GOP nomination for mayor.
On June 12, the morning before the day’s trial, federal prosecutors argued that the conversations were irrelevant to bribery crime and wire fraud with which the defendants, including Smith, are charged, the Times said. But the defense – including Smith’s lawyer Gerald L. Shargel – convinced the judge that somewhere in the recordings there might be evidence that Stern and an undercover agent entrapped the defendants. The judge decided to postpone his decision until Friday to give prosecutors a chance to show him how the recordings might be translated quickly enough for the current case to continue.
But it could take weeks to translate the Yiddish material since none of the lawyers speak Yiddish, according to the Times. And that’s something the jurors can’t wait for.
“The lawyers are working around the clock as it is, and now you’re adding a pretty substantial review of the recordings,” the judge said.
Jurors were then ushered into the courtroom where more secretly recorded conversations were played and they heard Smith say that bribes are the “business of government,” according to the New York Post.
“Tell them I got a kid in Albany that needs to be born. So when you birth him . . . I’ll help you with your children,” Smith is heard saying on the tapes. “I’d say absolutely not,” to giving more bribe money.
“I’d say, ‘I’m not giving you a freaking dime.’ I’d say, ‘If I even give you a nickel more, you have to stand on the Empire State Building and drop every person you endorsed and hold Malcolm up and say he’s the best thing since sliced bread. Matter of fact, he’s better than sliced bread.’ ”
Smith, a Democrat who was for a time the State Senate majority leader, is charged with being the linchpin in a conspiracy to bribe Tabone, then the vice chairman of the Queens County Republican Committee, and Joseph J. Savino, the Bronx Republican chairman, so he could get their authorization to run for mayor as a Republican in 2013. Savino pleaded guilty to bribery. Tabone has argued that the payment he received was a legal retainer and he was entrapped into taking it. Halloran allegedly served as a go-between in discussions with the Republicans.
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