By Rich Bockmann
The lawyer for indicted state Sen. Malcolm Smith (D-Hollis) wants to know if prospective jurors may be swayed by the high-profile nature of his client’s federal corruption trial when it kicks off in less than two months now that the presiding judge has refused to throw out the charges.
Defense attorney Gerald Shargel submitted a list of questions to White Plains District Judge Kenneth Karas Tuesday meant to weed out any biases potential jurors may hold against New York state lawmakers.
“Do you have any positive or negative thoughts about politicians?” the defense team’s voire dire questions asked. “Do you have any positive or negative thoughts about the New York Legislature?”
The questions also asks potential jurors about their political engagement and how closely they have been paying attention to the media ever since Smith was arrested a year ago on charges he tried to buy the city’s Republican leaders’ support for a mayoral run. Smith is being tried alongside former Councilman Dan Halloran and ex-Queens GOP Vice Chairman Vince Tabone.
Shargel told TimesLedger Newspapers the inquiry was pretty standard for a case like this.
“I try high-profile cases all the time,” he said. “I’m not worried, but I think that the answers to these questions will be informative and necessary to selecting a fair jury.”
Smith’s arrest was splashed across newspaper front pages and was accompanied by a news conference during which U.S. Attorney Preet Bharara stood next to a poster with an alleged quote from Smith insisting that GOP leaders declare him “better than sliced bread.”
Smith’s defense had argued that federal prosecutors could not try the southeast Queens Democrat on corruption charges since the written agreement he allegedly sought in order to run as a Republican, known as a Wilson-Pakula certificate, did not constitute an appointment but an authorization — a significant legal distinction.
In a motion asking to dismiss the case Smith’s attorney pointed to language in state law barring bribery in connection with an “agreement or understanding that some person will or may be appointed … designated or nominated.
Karas devoted a lengthy portion of his 107-page ruling on the motions to an analysis of the meaning of the word “may,” connoting either permission, likelihood or expectation.
“In choosing between these three categories, the court does not consider the word ‘may’ in a vacuum,’ he wrote. “Here, because of the context in which the word ‘may’ is used — specifically, its juxtaposition with the word ‘will’ — the court finds that it is best defined by the second category, as connoting likelihood, possibility, probability, or contingency.”
Karas dismissed all requests to have the charges thrown out — though he did leave open the possibility for the defense to return to the issue at a later time — and set jury selection for June 2.
Reach reporter Rich Bockmann by e-mail at rbockmann@cnglocal.com or by phone at 718-260-4574.
