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Mistrial Is Declared In Malcolm Smith Corruption Trial

June 17, 2014

By Joseph Berger, New York Times

WHITE PLAINS — Malcolm A. Smith, at times one of New York’s most powerful political officials as the majority leader and the minority leader of the State Senate, was granted a mistrial on Tuesday by a federal judge in his trial for bribery and wire fraud.

The decision came after a week and a half of testimony that included reports of cash-stuffed envelopes delivered as bribes, boozy visits to strip clubs and a scheme that teamed a developer desperate to reduce his own likely prison sentence with an undercover federal agent known as Raj.

And the proceedings fell apart because of Yiddish.

Judge Kenneth M. Karas of United States District Court granted Senator Smith and one of his two co-defendants a mistrial because federal prosecutors had failed to turn over promptly to the defense more than 70 hours of wiretapped conversations, about a third of them in Yiddish, and translating and digesting them would require jurors to serve longer than some could manage.

A new trial for Mr. Smith was scheduled for early January, which will allow him to run this fall for re-election to the Senate, where he has served since 2000, as an innocent man.

Mr. Smith, 57, a Democrat from Queens, had been accused of bribery and wire fraud for conspiring to pay Daniel J. Halloran III, a Republican former city councilman from Queens, and three Republican county leaders more than $80,000 in bribes, so the leaders would authorize Mr. Smith to run for mayor on the Republican line in 2013. Mr. Smith did not want to run for mayor in a crowded Democratic field.

The lawyers for Mr. Smith and the two other defendants made what a Yiddish speaker might call a tsimmes — a big fuss — over the fact that federal prosecutors had not turned over recordings of the wiretapped conversations. The prosecutors contended that the conversations were mundane or irrelevant.Vincent Tabone, a former vice chairman of the Queens Republicans, also won a mistrial and is to be retried in January.CreditAnthony Lanzilote for The New York Times

Vincent Tabone, a former vice chairman of the Queens Republicans, also won a mistrial and is to be retried in January.CreditAnthony Lanzilote for The New York Times

On Tuesday, the defense request was granted: The judge said that translating, transcribing and analyzing the Yiddish and other recordings would stretch the trial into mid- or late July, which clashed with child care and work obligations of at least four jurors.

Mr. Smith’s fate in this trial, it turns out, was sealed the moment the first witness, a special agent of the Federal Bureau of Investigation, William McGrogan, testified under cross-examination by Vinoo P. Varghese, Mr. Halloran’s lawyer, that there were recordings of wiretapped conversations between the key government informer, Moses Stern, and Dr. Joseph Frager, a Jewish activist, that federal prosecutors had not turned over to the defense. That disclosure was followed up by a request by Mr. Smith’s lawyer, Gerald L. Shargel, for conversations between Mr. Stern and a Queens rabbi, Zalman Beck, that prosecutors had largely failed to turn over. Those conversations were mostly in Yiddish.

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Within days, Judge Karas ordered federal prosecutors to hand over all the requested recordings. The trove proved gargantuan — 9,000 telephone calls and text messages, including more than 28 hours in Yiddish.

Defense lawyers seized on the sheer volume to demand time — two or more weeks — to translate and digest those recordings. Translation alone required a battalion of professionals for a language whose ranks of experienced translators are small.

Judge Karas had initially told jurors that the trial might take two weeks. But when it became apparent that the trial would stretch into mid-July, he decided to poll the jurors.

“I don’t want them to feel intimidated,” he told lawyers before calling in the jury. “On the other hand, I’m not going to say, ‘You can walk out the door.’ ”

When he asked the 15 jurors how many would mind serving for several more weeks, five jurors and one alternate raised their hands. He questioned them individually in sidebars and decided that four had legitimate reasons for not serving that long, including one woman who had a family reunion in North Carolina.The trial of Daniel J. Halloran III, left, a Republican former city councilman, will resume in a week. He did not seek a mistrial.CreditAnthony Lanzilote for The New York Times

The trial of Daniel J. Halloran III, left, a Republican former city councilman, will resume in a week. He did not seek a mistrial.CreditAnthony Lanzilote for The New York Times

In ruling for a mistrial, Judge Karas did not find any “bad faith” on the part of the prosecutors, Douglas B. Bloom and Justin Anderson, only a judgment call he found to be mistaken. And in the only response by the office of the United States attorney, a spokesman, Herbert Hadad, pointed to the judge’s finding of a lack of ill motive.

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One of Mr. Smith’s two co-defendants, Vincent Tabone, the former vice chairman of the Queens Republican committee, who was seen on a video receiving $25,000 in hundred-dollar bills in an S.U.V. parked outside Sparks Steak House in Manhattan, was also granted a mistrial. He is scheduled to face trial with Mr. Smith in January.

The third defendant, Mr. Halloran, who testimony indicated was the go-between for Mr. Smith, and who was accused of receiving almost $40,000 in cash, did not seek a mistrial; his trial will resume in a week, after the Yiddish recordings are translated. His lawyer, Mr. Varghese, explained that after 14 months, Mr. Halloran, who he said accepted money as personal loans or political donations, wanted to clear his name.

It appeared from testimony, however, that Mr. Halloran had been struggling financially through a divorce and home foreclosure, and he may not have had the financial resources for a second trial. Since a one-defendant trial should be far shorter, one of the jurors who were going to be excused may be able to serve to the current trial’s conclusion, allowing Mr. Halloran to face a 12-person jury.

Leo Ahern, one of Mr. Tabone’s lawyers, said a new trial would “at the end of the day help our defense because we’ll have thoroughly vetted tapes.”

The video and audio recordings played in the trial showed that Mr. Smith merely nodded inscrutably when told of the cash payments to the county leaders but promised to reward Mr. Stern and the undercover F.B.I. agent with a state allocation of $500,000 for improving a road near a community hall they were said to be building.

Yet the government had a high hurdle to clear. The defendants contended that they were entrapped by Mr. Stern, a Rockland County developer who at the time was cooperating so he could gain leniency and a shorter prison sentence on charges of defrauding Citigroup of $126 million.

After the mistrial was declared, Mr. Smith walked out of the courthouse with little visible emotion. Gerald L. Shargel, his lawyer, said in an interview that Mr. Smith “was pleased, understanding that the case goes to trial in January and will be resolved.” He denied that Mr. Smith’s coming re-election campaign had anything to do with the mistrial request.Correction: June 17, 2014

An earlier version of this article misstated when a federal judge declared a mistrial in the government’s bribery case against State Senator Malcolm A. Smith. It was Tuesday, not Wednesday.Correction: June 23, 2014

An article on Wednesday about a mistrial being granted in a bribery case against former State Senator Malcolm A. Smith misidentified, in some editions, the borough in which Vincent Tabone, another defendant in the case, was a former Republican committee vice chairman. It is Queens, not the Bronx.

Marc Santora contributed reporting from New York.