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Law360, New York (July 17, 2020, 9:26 PM EDT) -- An attorney for Sheldon Silver on Friday voiced concern that the former New York State Assembly speaker could be exposed to COVID-19 at his upcoming sentencing hearing in Manhattan because of a lack of social distancing.
Silver on Monday is due to be sentenced at the Thurgood Marshall U.S. Courthouse for the third time after he was convicted twice at trial on corruption charges over what prosecutors described as two influence-peddling schemes while he was in office.
The retrial came after the Second Circuit twice intervened in Silver's case. The latest instance came in January, when the Second Circuit determined that some jury instructions were deficient during Silver's month-long retrial in 2018 and overturned three counts dealing with Silver's alleged scheme to take bribes from a mesothelioma researcher.
During a teleconference with U.S. District Judge Valerie E. Caproni, an attorney for Silver, James Loonam of Jones Day, brought up his uneasiness with Silver's entrance and exit from the courthouse, with a possible throng of reporters not maintaining social distancing practices.
"I have personally witnessed in cases like this that the press and the photographers, both before and after the appearances can resemble a rugby scrum," Loonam said.
On some previous occasions, Silver has been swarmed by members of the media outside of court proceedings in Manhattan.
"It seems like a potentially dangerous situation to me that we can't control, and I don't think any of us can assume that social distancing will necessarily be observed," he said.
Judge Caproni declined to grant Silver special access to the courthouse.
"I'm not going to permit that. I'm not going down that route," Judge Caproni said.
Silver's legal team asked the judge to let the sentencing proceed remotely, in light of the 76-year-old's high risk of suffering grave consequences from contracting the virus. The government didn't object, but Judge Caproni denied that request, noting that SDNY has reopened to the public and implemented extensive mitigation measures.
The proceeding is due to take place in a large ceremonial courtroom in one of the Southern District of New York's two Manhattan courthouses. Judge Caproni said that at the request of the press, the court is providing remote access via teleconference to in-person proceedings.
Judge Caproni said in terms of any risk by the press or persons outside the courthouse, it appears the risk of contracting COVID-19 if one is outdoors and wearing a face-covering is relatively low.
The judge also outlined some of the recent pandemic-related changes at SDNY, such as temperature checks and risk assessment questionnaires for people entering the courthouses. She said the seating capacity in all courtrooms has been significantly reduced, and that mask usage will be required in the courtroom except for when someone is speaking.
According to the government, Silver engaged in schemes to earn referral fees by helping an asbestos researcher get state grants in exchange for sending clients to Silver's then-law firm, Weitz & Luxenberg PC, and to take official action on behalf of developers who brought tax work to another Silver-linked firm, Goldberg & Iryami PC.
Prosecutors have argued that Silver again deserves to be sentenced to seven years in prison, as he was following his retrial, which was a far cry from the initial 12-year term Judge Caproni handed down in 2016 after his first trial.
Silver has pushed for a noncustodial sentence, citing in part his advanced age and health conditions that "significantly predispose him to the worst outcomes if infected with COVID-19, including death."
The government is represented by Daniel C. Richenthal and Damian Williams of the U.S. Attorney's Office for the Southern District of New York.
Silver is represented by James P. Loonam, Meir Feder, Colleen Noonan Ryan and Abigael Bosch of Jones Day.
The case is USA v. Silver, case number 1:15-cr-00093, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Jody Godoy and Emilie Ruscoe. Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
