The Nocera Correction

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The New York Sun

That is quite a correction the New York Times has plastered atop Joseph Nocera’s column about the ex-speaker of the New York Assembly, Sheldon Silver. Mr. Nocera’s column “about the indictment of the longtime New York State Assembly speaker, Sheldon Silver, was premised on several factual errors,” the correction says. Mr. Nocera “misidentified the person who in 2008 placed Arthur Luxenberg, a lawyer who represents people exposed to asbestos, on a panel that recommends judicial appointments. It was Mr. Silver, not Jonathan Lippman, chief judge of the State Court of Appeals.”

The correction also says that the column “suggested that Mr. Luxenberg’s role on that panel resulted in the appointment of a judge, Sherry Klein Heitler, to lead New York City’s dedicated asbestos court. In fact, the panel had no involvement in that appointment.” Finally, the correction says, “the column implied that Mr. Silver rewarded the judiciary with a pay increase. While Mr. Silver’s appointee to a state commission on judicial pay did cast a deciding vote in 2011 for a pay raise, as the column noted, the appointee actually voted against an even greater pay increase favored by some members of the commission.”

It’s not our purpose here to pile onto Mr. Nocera. He’s a veteran newspaperman, and even the best of reporters and editors have made some real doozies in the course of long careers. We’ve made our share. But for the record, the editors the Times missed the biggest mistake of all in Mr. Nocera’s column. Sheldon Silver hasn’t been indicted — yet. Not only does the correction miss that blunder. It even repeats the error. It is a mistake that bears reflection at a time when the constitutional niceties are getting all too little attention.

What was filed by the United States attorney, Preet Bharara, against Mr. Silver is a criminal complaint. It is a serious act for America to file such a document, but it’s only a preliminary step, outlining the basis for an arrest. To actually bring a case, a formal accusation — an indictment — has to be handed up by a grand jury. It’s not a matter for mere pecksniffs. What is a grand jury, after all? It is a right, vouchsafed in the Fifth Amendment, which says that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

Why in the world would the Times want to overlook that? Particularly because grand juries can’t be taken for granted. There may be a saying that a grand jury will indict a “ham sandwich.” But not all ham sandwiches. Our town has just been torn by the refusal of a grand jury to indict the police officers for the death Eric Garner. Our country has been rent by the refusal of a grand jury in Missouri to indict the officer who shot Michael Brown. We would be surprised if Mr. Bharara failed to get a grand jury to act against Mr. Silver. But it’s not something that we would want to report as as a fait accompli before it actually takes place.


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