Charges at Dr. K trial are mer­it­less

Albany Times Union - Sunday - - PERSPECTIVE - FRED LEBRUN

The fed­eral cor­rup­tion trial in Man­hat­tan of SUNY Poly founder Alain Kaloyeros and three other de­fen­dants is nearly over and has been pretty much a bust for the gov­ern­ment.

Although sadly, they could get a con­vic­tion or two out of it any­way. It’s a con­fus­ing mess of a trial and much will de­pend on the judge’s in­struc­tion to the jury.

The two-week-and-two-day­old trial was sup­posed to last four to six weeks and show all the ne­far­i­ous machi­na­tions of a cor­rupt pay-to-play up­state gov­ern­ment in squalid de­tail. It did nei­ther. In­stead, on Mon­day the de­fense will take a crack at the pros­e­cu­tion’s hastily con­trived as­ser­tion that, yes in­deed, Man­hat­tan legally qual­i­fies as the venue for the wire fraud charges. Af­ter that, the de­fense rests and sum­ma­tions be­gin. The pros­e­cu­tion has al­ready rested, twice.

Last Thurs­day, in an ex­traor­di­nary dis­cre­tionary de­ci­sion that might­ily strains the no­tion that she is an im­par­tial ref­eree, fed­eral Judge Valerie E. Caproni, a for­mer prose­cu­tor, en­cour­aged the pros­e­cu­tion to re­open its case when she pointed out they had failed to show any emails or com­mu­ni­ca­tions went into the court’s ju­ris­dic­tion, as re­quired.

“I came out here pre­pared to dis­miss th­ese counts,” the judge said in court, with the jury ab­sent. But cit­ing that old saw about want­ing to let the jury de­cide, she let the pros­e­cu­tion off the hook.

Given the times and place — the no­to­ri­ously ag­gres­sive South­ern District of New York — it’s no won­der the judge would rather de­fer to the jury than make the de­ci­sion to es­sen­tially toss a cor­rup­tion case her­self, even a mer­it­less one. De­fense lawyers, the Cap­i­tal Re­gion’s own Steve Cof­fey among them, protested might­ily but to no avail. The judge wouldn’t even al­low a men­tion to the jury of the real rea­son the pros­e­cu­tion was re­open­ing its case.

The prob­lem with “let the jury de­cide” is whether it’s fair to ei­ther the jurors or the de­fen­dantstoask­the­jury­tomakea com­pli­cated le­gal­is­tic de­ter­mi­na­tion that is a no-brainer for an ex­pe­ri­enced ju­rist like Caproni.

But the venue snafu is an in­di­ca­tor of a much deeper and wider fault line in the gov­ern­ment’s en­tire case and strat­egy, which keeps shift­ing de­pend­ing on the lat­est tes­ti­mony. To the bit­ter end, the pros­e­cu­tion’s por­trayal of what is le­gal and what is not in this case raises ques­tions, par­tic­u­larly con­cern­ing the in­tri­ca­cies of ar­cane state con­tracts us­ing non­profit foun­da­tion boards. Who knows what the jury has picked out of that steam­ing pile to be­lieve. In gen­eral, the trial has shown a seat-of-the-pants pros­e­cu­tion built with lit­tle ev­i­den­tiary foun­da­tion, but lean­ing

heav­ily on un­proved as­ser­tions there must be some sort of con­spir­acy at work.

It be­hooves some­one in au­thor­ity to take a hard look at the grand jury min­utes that brought us th­ese in­dict­ments in the first place, in­dict­ments that should have been tossed long ago. When they were is­sued was when all the dam­age was done, when our re­gion’s eco­nomic devel­op­ment mo­men­tum went into the toi­let, when rep­u­ta­tions were ir­repara­bly dam­aged, when teams of lawyers be­gan a grotesquely ex­pen­sive ad­ver­sar­ial dance to which we are now wit­nesses. What were grand jurors told were the crimes here?

All any­one needs to con­sider is to com­pare the open­ing state­ments by As­sis­tant U.S. At­tor­ney David Zhou lay­ing out the case the gov­ern­ment would prove “be­yond a rea­son­able doubt” with what was ac­tu­ally re­vealed at trial.

Zhou said they would prove hun­dreds of mil­lions in con­tracts were steered by Dr. K. But tes­ti­mony re­vealed they were awarded fairly and openly, the exact op­po­site of what Zhou claimed. Nor did any­one claim they were de­frauded, or that tax­pay­ers got any­thing but good value for money spent. As an aside, much was made by the gov­ern­ment about fa­vor­ing Lpciminelli over other con­trac­tor/de­vel­op­ers for the bulk of the high tech build­ing con­tracts out in Buf­falo.

This is where putting this trial in Man­hat­tan tilts per­spec­tive. Ciminelli is by the far the largest, most suc­cess­ful de­vel­oper in West­ern New York. They over­saw up­grades at the Buf­falo Bills sta­dium.

They al­ready had hun­dreds of mil­lions in state build­ing con­tracts be­fore Kaloyeros and the gov­er­nor’s Buf­falo Bil­lion project came on the scene. It would have been eye­brow rais­ing if they were not the pre­ferred con­trac­tor — on merit.

When the pros­e­cu­tion’s star wit­ness, for­mer Ciminelli ex­ec­u­tive Kevin Schuler, tes­ti­fied his com­pany felt they had an in­side track on the lu­cra­tive Buf­falo Bil­lion con­tracts, his con­tact that likely led to that im­pres­sion was not Dr. K. It was low-life Cuomo ad­min­is­tra­tion point man and dis­graced felon Todd Howe. The man who should have been on trial here.

Zhou also as­serted the gov­ern­ment would re­veal by tes­ti­mony how mem­bers of the board of di­rec­tors of the non­profit that ac­tu­ally is­sued the con­tracts were de­ceived by Dr. K. Nope, didn’t hap­pen.

Ap­par­ently, they were not de­ceived af­ter all.

And oh, so much time prov­ing noth­ing over emails, what they meant, why some were deleted, why a pri­vate as well as a gov­ern­ment server was used. “Emails will prove this crime be­yond a rea­son­able doubt,” as­serted Zhou. Well, no.

And which con­tin­ues to beg the ques­tion, what crime?

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