The federal judge presiding over the Malcolm Smith corruption case is leaving it up to the jurors to decide whether there should be a mistrial.
White Plains Judge Kenneth Karas on Monday granted the defense lawyers’ request for a two-week trial delay so they could pore over more than 92 hours of newly released audio tapes from prosecutors.
But Karas said he still has to poll the 12 sitting jurors and three alternates Tuesday to see how many of them can stay on the complicated case, given the delay.
A mistrial is likely if not enough jurors can stay, the judge said.
“If we get all 15, we go,” Karas told both sides Monday. “If we get something in between [12 and 15], we’ll have to talk about it. If the jury says no, then I think we have a mistrial.”
The trial is in its third week of testimony. Jurors were told to expect it to wrap up this week.
Karas refused to declare the defenses’ request for a mistrial simply over the prosecution’s lag in turning over the tapes.
“None of this smacks as something the government was intentionally trying to hide from the defense — there is no bad faith,” the judge said.
Democratic state Sen. Smith, of Queens, is accused of conspiring with ex-Queens Councilman Dan Halloran, a Republican, ex-Queens GOP vice chair Vincent Tabone and then-Bronx Republican Chairman Joseph “Jay” Savino to get Smith the Republican nomination for mayor.
Smith was caught on tape telling an undercover agent that it was all OK because that’s simply “the business of government.’’
In pushing for a mistrial, defense lawyers argued that if they’d had all of the recordings early on, the case might not have even made it to trial.
As it is now, the jury’s too prejudiced by the audio tapes that have been released without the others, thanks to prosecutorial “negligence,’’ Halloran’s lawyers said in a scathing filing submitted to the court Friday.
At least some of the newly released tapes involve Moses Stern, a crooked Rockland County developer who turned federal witness to try to dodge jail time.
He speaks in a Yiddish dialect, and the translation is painstaking, the defense has griped.
The prosecution finally brought in 27 Yiddish speakers to try to begin translating the tapes over the weekend, but defense lawyers rejected them as unreliable, full of “gibberish” and just “a lot of Yiddish-speaking oddballs.”
Prosecutor Justin Anderson challenged the defense’s contention that the tapes contained any relevant material that would alter the defense’s strategy.
“Nothing has come out of this that’s a game changer,” Anderson said.
But in granting the defense’s request for the delay, Karas noted, “It’s not about listening. This is about putting together a puzzle.”