By Jim Fitzgerald
A mistrial was declared Tuesday in the federal corruption case against state Sen. Malcolm Smith, meaning his re-election campaign can proceed without fear of a conviction before Election Day.
One of his co-defendants, former Queens Republican leader Vincent Tabone, also received a mistrial, but former New York City Councilmember Daniel Halloran opted to go forward on his own.
The three are accused of scheming to bribe Republican party leaders so Smith, a Democrat, could run for the GOP line in the New York City mayoral race.
The mistrial was caused in part by the prosecution's late release of more than 70 hours of secret recordings involving a government informant, including 28 hours in Yiddish. The trial was already behind schedule, and the release of the recordings pushed it back even further. Not enough of the jurors could serve that long.
Smith and Tabone will be retried in January, after Smith's campaign for re-election to his Senate seat from Queens.
Asked how the mistrial affected the campaign, Smith's lawyer, Gerald Shargel, said Tuesday, "I'm a defense attorney, not a political strategist." He would not call the mistrial a victory.
Smith left court without commenting.
Judge Kenneth Karas had initially decided to postpone the trial until June 25 to give defense attorneys time to study and translate the recordings.
He then asked the 15 jurors and alternate jurors if they could stay with the case until July 18, his new estimate of when it would end. They had been told during jury selection that the trial would end this week.
Karas determined that only 11 of them would be able to stay, not enough for a full jury.
He then granted mistrial motions from Smith and Tabone. Halloran, who according to his lawyer is "teetering on bankruptcy," objected to a mistrial.
When prosecutors suggested trying Halloran alone, the judge found that a 12th juror could serve because that would mean a shorter trial. Halloran agreed to go forward.
Halloran's attorney, Vinoo Varghese, said outside court, "We believe we have the best shot here with this jury to clear his name."
He acknowledged there was risk in continuing the trial with no alternate jurors, which could mean a mistrial if one juror has to drop out, but said, "We will deal with that if that happens."
Tabone said after the mistrial, "I wanted my day in court ... but in the end we needed a fair trial."
The U.S. attorney's office had no formal comment on the mistrial but noted that Karas found "no bad faith" on the government's part in the late release of the recordings.
Shargel said he believed the newly released tapes will help Smith at his retrial, scheduled for Jan. 5.
"The tapes support what I've been saying all along, that Sen. Smith was entrapped," he said.