28 hours of undisclosed phone recordings in Yiddish cause mistrial in senator's corruption case

Corrected: After a week-and-a-half of testimony, a federal judge declared a mistrial in the corruption trial of New York state senator Malcolm A. Smith. And, the New York Times reported, a large part of the blame for the mishigas (craziness) went to Yiddish.

Smith, a Queens Democrat who served as majority and minority leader of the New York State Senate, was accused of conspiring to pay a Republican former New York City councilman and three Queens County Republican leaders more than $80,000 to allow him to run for mayor of New York City as a Republican. Though he represented Queens as a Democrat, Smith wanted to stand out in a Democratic field likely to be crowded.

The trouble started when the first witness, FBI agent William McGrogan, testified that there were wiretap recordings of phone conversations between the government’s informer, Moses Stern, and Jewish activist Joseph Frager. Federal prosecutors hadn’t turned those over to the defense. Defense attorneys eventually discovered more than 70 hours of recordings not turned over.

More than 28 hours of those recordings were in Yiddish. That posed a problem because there aren’t many Yiddish translators available; Yiddish is not widely spoken outside of the small Orthodox Jewish community. A lawyer for Smith, Gerald L. Shargel, told the New York Times “a lot of odd people” had called his office to volunteer as translators, and some of their results were gibberish.

Defense lawyers requested several weeks to translate the recordings and see how they affected the case. Judge Kenneth M. Karas of the Southern District of New York polled the jurors and discovered that four of the 15 had legitimate reasons for not being able to serve into mid-July. He declared a mistrial as to Smith and co-defendant Vincent Tabone. A third defendant, Daniel Halloran III, did not request a mistrial; his trial will continue in a week.

The judge did not find any bad faith by assistant U.S. Attorneys Justin Anderson and Douglas Bloom. They had said they thought the conversations were irrelevant; the judge thought this was just a bad judgment call.

Smith and Tabone will be retried in early January. The delay allows Smith to run for reelection this fall without a criminal conviction on his record.

Updated at 12:11 p.m. to correct the headline and body of the story to reflect that Smith is still serving as a state senator.

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