Charges at Dr. K trial are meritless

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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?