During Sheldon Silver’s federal corruption trial, defense attorneys have now tried at least twice to suggest heavy handed tactics on the part of prosecutors to cajole witnesses into cooperating with their case. It fits in with overall defense narrative that there is just no case here and prosecutors have bent the rules and overreached. Practically speaking, the defense has not denied any of the facts laid out by the government. Silver’s team has disputed the government’s presentation of the facts, but not the basic facts that Silver steered public money to cancer research, and received referral fees for cancer patients. The defense simply maintains that all of that is legal, if unseemly. And none of it rises to the level of a federal crime.

At the heart of the government’s case is Dr. Robert Taub who received $500,000 from Silver in taxpayer money for his Mesothelioma Center at Columbia University. Taub then referred cancer patients to Silver who passed along their potentially lucrative cases to Weitz and Luxenberg where Silver served as “Of Counsel.” Quid-pro-Quo, Clarice. Or so say prosecutors.

During cross examination Taub was asked about when federal prosecutors first came to see him in 2014. Taub recalled on the witness stand that investigators showed up at his apartment unannounced at 6am. Taub said that he panicked and initially denied referring patients to Silver at all. Taub sheepishly recounted,

I initially minimized the extent of my involvement.

Taub eventually reached a non-prosecution agreement with the government in exchange for his testimony ( perhaps further proof that everything in life comes down to mutually beneficial relationships ) but not before Taub rejected the original draft of the agreement suggesting he referred patients “in exchange” for money.

Now, there is a new kerfuffle over the same defense tactic. Yesterday, US Attorney Preet Bharara wrote a sharply worded letter to District Judge Valerie Caproni ( the Judge in the Silver case ) which read,

The Government respectfully submits this letter to address repeated improper questioning by defense counsel that potentially gave the jury the mistaken impression that approaches of witnesses by law enforcement were somehow unlawful or inappropriate. As defense counsel is well aware, however, such approaches are entirely lawful and proper, and the Court should issue a curative instruction to correct the misimpressions that may have arisen from defense counsel’s questioning.

Bharara’s letter was in response to this exchange between Silver defense Attorney Justin Shur and the mild mannered Stephen August who handled member items in the Assembly for Silver and the Democrats until his retirement. He currently lives in Maine. Here is part of the exchange between Shur and August:

Q: When was the very first time you met with the prosecutors? Tell us how that came about.

A: I don’t know the date. It was January of this year. They came up to Maine, and requested that I speak with them.

Q: And they called you first before doing that?

A: They did not, no.

Q: They didn’t make an appointment to see you?

A: No.

Q: They just showed up?

A: They did.

Q: This is in Bath, Maine?

A: It is. Q: Where is Bath, Maine?

A: We’re about 35 miles north of Portland. . . .

Q: Were you home? Did they knock on the door?

A: My wife and I were out for a walk. I recall it was mid-afternoon. They were in the driveway when we returned home.

Q: Had you ever had that happen before? Where criminal investigators came to your house?

A: No.

Q: Were you surprised to see them there?

A: I was.

Bharara’s letter goes on to say,

As the defendant is well aware, it is entirely lawful for law enforcement to attempt to talk to individuals at their residences with their consent, including early in the morning. Yet defense counsel’s improper questioning, some of which is described above, may well have left the jury with the opposite impression.