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Campana and McGrath documents

Campana and McGrath documents

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Affmnation in Support of Motion For Restriction of Prejudicial Extrajudicial Statements by Special District Attorney and Law Officers (Gag Order) and for Disqualification and Dismissal of Indictment



Brian D. Premo, an attorney duly licensed to practice law in the courts of New York, under the penalties of perjury, affmns and states as follows:


1. I represent defendant Edward McDonough regarding this matter.

2. This affrrmation is submitted in support of McDonough's present Motion for an

. ~Order Prohibiting the Special District Attorney ("SDA"), law enforcement officers and their representatives or any party from making any extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication and have a substantial likelihood of materially prejudicing the trial in this matter; and, granting such other relief the Court deems just and proper. In the alternative, it is requested that the Court conduct a hearing to determine the merits of said motion.

3. . This affrrmation is also submitted in further support of Mcfronough's pending

Motion for Orders disqualifying the SDA~ dismissing the Indictment and other relief.

4. This affirmation is made upon information and belief, the sources and grounds of which are the papers and documents related to the case disclosed by the SDA, including witness statements; the supporting affidavit of McDonough; documents obtained from the Rensselaer County Board of Elections; the papers contained within the file maintained regarding this matter; and personal conversations had with McDonough, the SDA and/or others; and upon personal knowledge, where so stated.


5. The U.S. Supreme Court long ago said "{t]here is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment" and that "the dissemination of information relating to alleged governmental misconduct JJ is "speech which has traditionally been recognized as lying at the core of the First


Amendment." Gentile v. State Bar af Nevada, 501 U.S. 1030, 1034-1035 (1991) . (Kennedy, J., quoting Butterwarth v. Smith, 494 U.S. 624 (1990) (emphasis added).

6. _ In those few simple statements, the U.S. Supreme Court twa decades ago. once again acknowledged that: (1) despite the magnificence of our criminal justice system, misconduct in the investigation and prosecution of criminal cases does occur, and, (2) speech outside the judicial process against the improper and corrupt exercise of the power of the State in criminal matters is at the care of our freedom of speech.

Defense Caunse1's Duty to. Speak Publicly-against Wrangfu1 Indictment

7. In fact, an attorney representing the accused often has a duty to. speak an behalf of his client outside, as well as inside, the courtroom.

8. Justice Kennedy acknowledged that duty in the Gentile case when he wrote that defense counsel should take all "reasonable steps to defend a client's reputation and reduce the adverse consequences of an indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives." Justice Kennedy also. noted in that case that defense counsel "may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that his client does not deserve to be tried."

Defense Caunse1's Duty to. Speak PubliCly against Prosecutoria1 Miscanduct

9. Far this very reason, there is at times a need far public speech in criticism of prosecutorial misconduct from defense counsel, the media and others,

10. There can be no. doubt that prosecutorial misconduct is the antithesis of criminal

justice, despite the SDA's selfish interest in pretending that it does nat exist in this case.

11. In fact, in Gentile, Kennedy, J. succinctly said: "Public awareness and criticism have even greater importance where ... the criticism questions the judgment of the [the} prosecutor. Our system grants prosecutors vast discretion at all stages of the criminal process. The public has an interest in its responsible exercise." 501 U.S. 1035-1036.

12. J. Kennedy further noted that the media "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Id. at 1035 (quoting Sheppard v. Maxwell, 384 U.S. 333,351 (1966).

Burden far Restraint af Free Speech

13. Therefore, speech is presumed constitutionally valid and any party seeking to. restrain its expression "carries a heavy burden of showing justification for the imposition of such restraint." Nebraska Press Assaciatian v. Stuart 427 U.S. 539,558 (1976).

Prosecutars are Typically Self-Restrained by Law, Ethics and Rights af Accused

14. In almost all cases, the prosecutor is self-restrained in his extrajudicial statements ("EJS") by the applicable rules of law and ethics, including the concomitant concern far preservation of the underlying Constitutional rights of the accused.


15. Consequently, it is usually only in sensational, extensively reported cases that the prosecutor seeks to impose judicial restraint on the EJS of the accused or his counsel in defense of charges or critical of the prosecution, including an attempt to demonstrate in the court of public opinion that his client does not deserve to be tried.

SDA Has Shown Disregard for Law, Ethics and Rights of McDonough

16. In this case, however, since the filing of the Indictment, the SDA has shown either a disregard for the rules oflaw and ethics concerning prohibited EJS and the rights of the accused to a fair trial, or an inexplicable ignorance of the same. It is' difficult to believe that he does not have any knowledge of the law, ethics and rights of McDonough.

17. Hence, his relevant conduct must be discussed in this application for an order of the Court curtailing his EJS prejudicial to McDonough's Sixth Amendment right to a fair trial by an impartial jury.



18. In addressing the inherent tension between the Sixth Amendment rights of the accused and the First Amendment rights of others, the U.S. Supreme Court recognized that the right to' a fair trial by an impartial jury is "fundamental to the American scheme of justice." Nebraska Press Association v. Stuart, at 551 (1976).

19. The U.S. Supreme Court addressed the potential conflict between one's Sixth Amendment right to a fair trial and another's First Amendment right to free. speech and, specifically, the permissible restrictions that may be placed on an attorney's EJS in order to prevent or limit the potential adverse effects of pretrial. publicity on the right of an accused to a fair trial by an impartial jury, in the cases ofProcunier v. Martinez, 416 U.S. 396,413 (1976) (held: content based restrictions on attorney speech are permissible only to the extent necessary to protect the right of the accused to a fair trial and impartial jury), and, (2) Gentile v. State Bar of Nevada, Id. (held: restraint on attorney speech must be . narrowly tailored to serve a legitimate objective and is permissible when it applies: (a) only to speech that is substantially likely to have a materially prejudicial effect on an adjudicative proceeding; (b) neutrally as to points of view and to all attorneys in the case; and, (c) merely to postpone the comments until after the proceeding) ..

20. The Supreme Court long ago cautioned that "trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v. State of California, 314 U.S. 252,271 (1941). Twenty years ago, the Gentile Court noted that:

"Even outside the courtroom ... lawyers ... [are] subject to ethical restrictions on speech to which an ordinary citizen would not be." 501 U.S. 1071



21. The Supreme Court's rulings regarding restraint on EJS by lawyers have been. perfunctorily adopted by New York State in the Code of Professional Responsibility and its Disciplinary Rules, specifically, DR 7-107 [NYCRR ·1200.38].

Disciplinary Rule 7-107 A: General Proscription on EJS-

22. In relevant part, DR 7-107A states that "[a} lawyer '" shall not make an [EJS} that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a· substantial likelihood of materially prejudicing an adjudicative proceeding ill that matter .... " (emphasis added)

23. Obviously, that provision concerning the general proscription ofEJS incorporates

the above Supreme Court rulings.

Disciplinary Rule 7-107B: EJS Determined Prejudicial Per Se

24. In relevantpart, DR 7-107B states that: "[a} statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to ... a criminal matter ... that could result in incarceration, and the statement relates to: 1. The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness . ... 2. . .. the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement. 3. The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented ... 4. Any opinion as to the guilt or innocence of a defendant or suspect ... 6. The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

25. That provision merely provides a guidepost for what has been determined to be

prohibited speech because of its nature. It is not, however, all inclusive.

Disciplinary Rule 7-107C: Permissible EJS

26. In fact; DR 7-107C provides guidance on the nature of EJS that are deemed permissible. In pertinent part, that provision states that: provided such statement complies with DR 7-107A, "a lawyer involved with the investigation or litigation of a matter may state the following without elaboration: 1. The general nature of the claim or defense. 2. The information contained in a public record 3. That an investigation of the matter is in progress. 4. The scheduling or result of any step in litigation. ... 7. In a criminal case;' a. The identity, age, residence, occupation and family status of the accused ... c. The fact, time and place of arrest, resistance, pursuit, use of weapons, and a description of physical evidence seized, other than as contained only in a confession,


admission, or statement. d The identity of investigating and arresting officers or agencies and the length of the investigation. (emphasis added)

27. Needless to say, the language of those Disciplinary Rules is to be interpreted as having its ordinary meaning. They are not to be interpreted or implied in a sharp, manner or to be considered all inclusive of the EJS that in any particular case "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter JJ. Furthermore, the proscription is against any EJS that has a substantial likelihood of such prejudice; actual prejudice is not required for it to be prohibited.


Press Conference Statements

28. As briefly discussed in my initial affirmation, the SDA clearly violated the provisions of DR 7-107 by his prejudicial, campaign-style, post-indictment Press Release statements that were substantially likely to have a materially prejudicial effect on the trial of this matter;' despite his best efforts at clever and sharp speak.

29. . Inexplicably, the SDA responded to McDonough's letter objections to his Press Release comments with the snide implication that he deemed them permissible EJS.

30. In view ofthe SDA's implied posture concerning his Press Release comments and most recent false comments publicly made in disparagement of counsel, as discussed . below, I must accept the SDA's implied invitation to explain more particularly how his Press Release comments were improper EJS, and do so by referencing each paragraph thereof, as follows:

(,-rl) The SDA stated the defendants were indicted on a 116-counts of crimes

allegedly committed regarding the September 15,2009 primary election;

i.e., Improper EJS about fact that the defendants were charged without any statement explaining that the charges were merely accusations and that they were presumed innocent until and unless proven guilty. (Violation of DR 7-107)

C,-r2) The SDA stated his powers are limited to the investigation and prosecution of crimes related to that primary;

C~3) He stated his understanding of the case when he was appointed was limited to the information produced at the Lambertsen Supreme Court proceeding;

(,-r4) He stated that he attended the Supreme Court hearing and ensured that gloves were worn when the absentee ballot envelopes and absentee ballots were handled and the police took their custody;

i.e., Improper (implied) EJS on the purported evidence and performance or results of any examination or test or the identity or nature of physical evidence expected to be presented. (Violation of DR 7-107)

(,-rS) The SDA stated that the Supreme Court Justice "issued a decision" (i.e. found) "that the testimony and affidavits reveal significant election law violations ... ;"


i.e., Improper EJS implying that a Supreme Court Judge already found the victims and evidence credible, that the alleged crimes were committed and that the defendants are guilty as charged. (Violation of DR 7-107)

(~6) The SDA stated that while it was clear, as the S.C. Justice held, that the rights of numerous voters were violated, it was not then clear who was responsible so the NYSP were called upon for assistance because of the extent of the fraud, need for investigation and possible forensic examination of evidence;

i.e., Improper, histrionic EJS on the character, credibility, reputation and identification of witnesses for the prosecution. (Violation of DR 7-107)

(~7)" SDA said: "Together with the [NYSPj, I have followed this case where the evidence led us. Some of the elected officials ... have cooperated ... others have not, and even the evidence of those who have cooperated must be viewed critically in this search for the truth. While some have admitted very limited responsibility ... not surprisingly no one has come forward to take full responsibility for the massive fraud perpetrated ... Much of the truth ... was clouded when this investigation began. The hard work, diligence and patience of many have brought a good measure of clarity to the facts";

. -

i.e., Improper, histrionic EJS on the existence/contents of statements given by a

defendant/suspect or that person's refusal/failure to make a statement, and, his implied opinion that the defendants are guilty. (Violation of DR 7-1Q7)

(~8) SDA said the NYSP are "one of the most competent police agencies in the

country" and thanked Kristine Robinson "who has meticulously tested numerous absentee ballots for DNA evidence" and Inv. Ogden who "pored over the documentary evidence and discerned patterns in that evidence which led to the indictment unsealed today";

i.e., Improper, histrionic EJS regarding: the character, credibility, reputation and. identification of witnesses for the prosecution; the fact that defendants were charged without any statement explaining that the charges were merely accusations 'and that they were presumed innocent until and unless proven guilty; the performance of examinations or tests and the identity or nature of physical evidence expected to be presented; and, an implied implication/opinion that the defendants are guilty. (Violation of DR 7-107)

(~9) The SDA stated he needed to mention the Grand Jurors before whom "evidence was presented over the course of six (6) days", whose "deliberations consumed another day" and for many of whom "service on this case meant not only the sacrifice of their time, but also the sacrifice of income" and, finally, that they "took their duties as an independent body very seriously, and earned our gratitude."

i.e., Improper, histrionic EJS regarding the fact that the defendants were charged without any statement' explaining that the charges were merely accusations and that they were'presumed innocent until and unless proven guilty, and, an improper implication that the defendants are guilty as charged because of the quantity/quality of the evidence. (Violation of DR 7-107) Also, an improper and apparently illegal comment on the nature of the evidence presented to the Grand Jury and the time that the Grand Jury deliberated (Violation of DR 7-107 and, apparently, CPL 190.25 and PL 215.70)


(~1 0) On behalf of the People, the SDA thanked the victims of the fraud ''for their cooperation. Many are the less fortunate ... A good number do not speak English as a first language and have difficulty in communicating in English. One is deaf and can communicate effectively only in sign ... Those who believed that the victims would never complain about the misappropriation of their voting rights were wrong. The victims spoke, and now the Grandjury has spoken";

i.e., Improper, histrionic EJS regarding: fact that defendants were charged without any statement explaining that the charges were merely accusations and that they were

. presumed innocent until and unless proven guilty; the character, credibility of a party, suspect in a criminal investigation or witness, or the identity of a witness or the expected testimony of a party or witness; and, an improper implication that the defendants are guilty of the crimes charged because of the nature of the evidence; and improper comment on the nature of the evidence and deliberations 'Of the Grand Jury, and, an . implied opinion that the defendants are guilty. (Violation of DR 7-107, and, perhaps CPL 190.251PL 215.70)

(~11) The SDA stated that all citizens were victimized by the [defendants'] misappropriation of the votes of others, which is a fundamental right of equality, and that anyone who minimizes the crimes thereby trivializes a principle of equality that our Founding Fathers believed to be a fundamental right of all human beings.

i.e., Improper, histrionic EJS regarding: the character, credibility~ reputation and identification of witnesses for the. prosecution; and, the fact that defendants were charged without any statement explaining that the charges were merely accusations and that they were presumed innocent until and unless proven guilty; and, an implied opinion that the

defendants are guilty. (Violation of DR 7-107) .

(~12) The SDA said the indictment contains 116 counts alleging the commission of the class D felonies of forgery. arid criminal possession of a forged instrument, that the law required be charged separately, and that he is "confident that this case can be clearly and concisely presented to ... a trial jury."

i.e., Improper EJS about defendants being charged with ·crimes without any statement explaiillng that the charges were merely accusations and that they were presumed innocent until and unless proven guilty, and, an improper implication that the defendants are guilty as charged because of the quantity ·of the' charges, nature of the evidence and, an implied opinion that the defendants are guilty. (Violation of DR 7-107)

31. Taken in its entirety, the SDA's Press Release was also clearly prejudicial EJS in violation of the general and specific proscription of DR 7-107A and B and, therefore, the beyond the scope of that deemed permissible pursuant to DR 7-107C.

Disclosure of Matter Attending GJ Proceeding in Apparent Violation ofPL

32. Perhaps most concerning, the SDA's comments concerning the number of days that evidence was presented before the Grand Jury and that the Grand Jury deliberated was an apparent violation of CPL 190.25(4a) and PL 215.70 (class "E" felony) because no discussion of the details of the secret GJ proceeding in a Press


Release can be deemed as being done in the "lawful discharge of his duties." (See, ~9 of his Press Release, discussed in paragraph 28.)

33. Specifically, CPL 190.25(4) provides that "Grand jury proceedings are secret, and no grandjuror or other person ... may, except in the lawful discharge of his duties ... disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding." (emphasis added)

34. It cannot truly be argued that a prosecutor's self-laudatory, back-slapping, campaign-style Press Release comment about the quantity and quality of evidence presented before a GJ or the timethat the grand jurors took to vote an indictmentmay be considered as being done "in the lawful discharge of his duties", particularly when it is an ESJ in violation of the Disciplinary Rules of the Code of Professional Conduct.

Relevance of Press Release

35. It is apparent from his comment in response to McDonough's objections to the improper Press Release EJS that the SDA will not acknowledge the obvious fact that they were made in violation of applicable rules of law or ethics.

36. The impropriety of the SDA's Press Release had to be more fully discussed also because it is clear from his most recent false public disparaging remarks against defense counsel for having the audacity of criticizing his alleged misconduct that he does not think himself constrained by law or Disciplinary Rules from making EJS that are likely to be prejudicial to McDonough right to a fair trial by an impartial jury.

Recent Public False Disparaging Remarks against Defense Counsel

37. As said, the SDA most recently made specious EJS about defense counsel to the news media that will likely prejudice McDonough's right to a fair trial and impartial jury.

38. In particular, on March 4, 2011, the Troy Record newspaper reported that the SDA made several fallacious disparaging EJS against defense counsel in response to the assertion made in support of McDonough's motions that the SDA implicitly admitted to the Courtthat no other person would be prosecuted (by indictment), as follows:

- "there is 'not one bit of truth' to [defense counsel's] claims that I recently indicated that no one else will be charged in the case. "

[This, as he knows, that is an utter misstatement of counsel's actual statement.]

- "called the claims made by [counsel] in a motion ... 'wild allegations'. " [When. as he knows. only factual assertions and reasonable arguments based on the evidentiary facts were made.]

- he never told a judge that there will be no more indictments in the case ... [When, as he knows. that was never said by counsel but it certainly was the implication of his comments that he did not have any plan on presenting any other


matters before another GJ but "in my mind I would like to think it is not over" and he "would be glad to consider any information the defendants' would provide."]

- "That is absolutely, categorically false. I have never said anything like that, andfor [defense counsel] to represent to the public that I did is disingenuous at best and, at worst, condemnable. "

[When, as he knows, he did in fact tell the Court, in the presence of counsel, that he had no plans to present any other matters before another GJ. He also knows that he told counsel that he did not have sufficient evidence to indict McInerney or Brown after initially stating that he intended to indict them.]

"The only reason why he is saying that is because, to make his legal argument fly, he has to make that representation. There is not one bit of truth to it. [Defense counsel] has demonstrated that he has no bounds when it comes

to the kind of allegation that he'll make. " .

[That, as he knows, is a fallacious statement made out of desperation because counsel had the nerve to assert the facts of his alleged prosecutorial misconduct.]

39. It is painfully clear from the SDA's alleged misconduct and recent specious attacks against counsel for exposing the true nature of his "wild allegations" against McDonough that there truly are no bounds to the claims he will make in desperate effort to avoid the truth and shirk responsibility for the non-prosecution of those responsible for the "massive fraud perpetrated on the citizens of Rensselaer County."

40. In responding to the insults of the SDA, I will continue to abide by principles of dignity, integrity and respect as well as the NYS Code of Professional Responsibility and Standards of Civility, including the duty to avoid making disparaging personal remarks or otherwise showing acrimony toward opposing counsel.

41. Thus, I will not respond publicly in kind to the personal insults of the SDA, which he knows are false. Suffice it to say, his alleged misconduct and slanderous remarks give . me serious cause to question his acumen, competence and integrity.

42. The. SDA has also invited the comment that his commencement of this baseless'

prosecution of McDonough, failure to prosecute those responsible and desperate false attacks against defense counsel for being critical of his alleged misconduct, are all, to use his words, beyond 'condemnable, Very simply, he has made the investigation and prosecution of the most massive fraud in Rensselaer County history a sheer debacle.

43. It is submitted that the SDA's public false disparaging remarks against counsel are also substantially likely to have a materially prejudicial effect on the trial of this matter, particularly in view of the prior substantial prosecution-biased media coverage of the case, as previously discussed.


44. Therefore, McDonough seeks a "gag order" to prevent the SDA from making any

further prejudicial statements to the media.

"Gag Order" Needed to Protect McDonough's Right to a Fair Trial

45. It is the proper function of the Court to take such action when appropriate and necessary to "protect their processes from prejudicial outside interference." Sheppard v. Maxwell, 384 .S. 333, 363. "Neither prosecutors, counsel for the defense, the accused, witnesses, court staff nor law enforcement officers coming under their jurisdiction should be permitted to frustrate its function. " Sheppard, 384 U. S. at 363.

46. It has been noted that trial counsel's EJS are of particular concern because the public will likely expect that they are privy to information unknown to others and particularly authoritative. Gentile, 501 U.S. at 1074.

47. In this case, defense counsel has not yet made a single public comment in defense of this outrageous prosecution or the dereliction of the SDA to properly prosecute those responsible for the massive voter fraud even though it could be argued to be not only legally and ethically appropriate, but necessary to disclose "the miscarriage of justice by subjecting the ... prosecutors ... to extensive public scrutiny and criticism".

48. On the other hand, the SDA has clearly "demonstrated a desire to manipulate media coverage to gainfavorable attention." United States v Brown, 218 F 3rd 415,429 (5th Circ. 2000) by his initial Press Release and personal attacks against defense counseL

49. Therefore, unless he is constrained by order of this Court, it is likely that the SDA will again make EJS prejudicial to McDonough's right to a fair trial due to a lack of . knowledge orarrogant disregard of the law and ethical rules prohibiting the same.

50. Consequently, it is respectfully submitted that a "gag order" is needed in this case

to ensure Mcfronough's right to a fair trial and impartial jury.

Prejudicial EJS of SDA Consistent with his Pattern of Misconduct

51. It is more than ironic that although McDonough has a First Amendment right to publicly speak; in criticism of the alleged prosecutorial misconduct in this case he has instead spoken only within the judicial processes, while the SDA has made numerous highly improper EJS to the news media that present "a reasonable likelihood that [they] will materially prejudice" McDonough's right to a fair triaL

52. In view of his prejudicial media statements, it is clear that the SDA wants to improperly try this case in the public while at the same time have everyone believe that there was no misconduct in its investigation and prosecution simply because he denies it.

53. It is equally obvious, and, even more concerning, that the SDA seeks to suppress McDonough's right to criticize his alleged misconduct by meeting well-founded allegations of fact with false, improper and prejudicial personal attacks against counsel.


54. Again, it appears that the SDA wants to stand above the rules of law and ethics

concerning prohibited EJS and Mcfronough' s Consti~tional rights.

55. Nonetheless, as the U.S. Supreme Court has recognized, prosecutorial misconduct does occur and when it does, as in this case, defense counsel is duty bound to discuss it on behalf of his wrongfully accused client.

56. In fact, after more than twenty-five (25) years experience in handling the defense of numerous complicated criminal cases, I have never seen such obvious and obnoxious prosecutorial misconduct in the investigation and prosecution of any matter.

57. Therefore, despite the chagrin that the SDA must now endure and regardless of the baseless personal attacks that he will likely make against defense counsel in a desperate attempt to obfuscate issues and silence criticism, several salient facts regarding

his alleged misconduct must be briefly discussed. .

58. Specifically, in response to his personal attack on the integrity of defense counsel, the following facts are submitted in further support of Mr. McDonough's motions to disqualify the SDA and dismiss the Indictment on the basis of prosecutorial misconduct.


59. In his recent statements to The Troy Record, the SDA variously implied that he intends to indict and prosecute others. Again, however, such assertion is disingenuous at best, and, completely belied by the indisputable facts that expose the charade'.

60. Incidentally, the reporter who spoke with the SDA told me, in substance, that the SDA admitted that he told the Court that "in his mind he would like to think its not over." in response to its inquiry of whether he was presenting any other matters before a new GJ but only as a way of "answering the question without answering the question" because it "would be unwise to reveal to [me J his strategy in the investigation and prosecution ... ".

61. As will be discussed, the SDA exhibited that same pattern of behavior in his dealings with counsel, the earmark of which was his lack of candor in discussions related to the investigation and prosecution matter, as discussed herein. Apparently, the SDA has never heard the oft said adage that "an attorney may not be required to speak, but if he does, he is duty-bound to tell the truth." Certainly, he does not abide by that truism.

SDA's Contradictory Statements re Indictment andProsecution of Others

62. As previously.said, the SDA initially told me soon after his application for DNA samples that he intended to indict the following people in three (3) stages: first, McDonough and LoPorto; then, Campana and Galuski; and last, Brown and McInerney. Later, in his office, he contradicted that representation and said that he could not indict Brown because "his minion" committed the questionable acts and that he "can't get


McInerney". That last statement is also consistent with statement to the Court that he did not have any plan to present any other matters before a new Grand Jury.

63. Regardless of his representations, the indisputable facts establish one truth: The SDA has, for personal and political reasons, egregiously investigated and prosecuted McDonough (and LoPorto) in lieu of others implicated by substantial evidence as being involved in a "massive fraud perpetrated on the citizens of Rensselaer County" that "takes from all of us" "a fundamental right of all human beings", including, most particularly, McGrath, Brown and McInerney.

Possible Lesser Prosecution of Others in Contradiction of Stated Posture

64. Of course, the SDA may prosecute to a lesser degree several others pursuant to the undisclosed terms of Cooperation or other agreement, e.g. McGrath and Campana.

65. The SDA may even now feel that his hand is now forced, so to speak, to prosecute

to a lesser degree others whom he did not intend to prosecute at all. But, that is doubtful.

Prosecution Posture: Felony Pleas or Trial

66. In any event, the real rub is that the SDA made clear his position that all of the "persons of interest" he initially identified would be required to enter a felony guilty plea in any negotiated disposition or be indicted, i.e. McDonough, LoPorto, Campana, Galuski, Brown and McInerney.

67. As stated, however, the SDA has apparently maintained that position only in the breach with the exception of Mcfronough, who was not involved in the "massive fraud" perpetrated by the Democrat incumbents and/or party workers not being similarly prosecuted, and the incumbent un-favored by the Democrat Party, LoPorto.

68. It is obvious that the SDA never intended to indict or otherwise prosecute any other Democrat incumbent orparty worker to the extent of a felony conviction.

69. In any event, the fact that the SDA may prosecute any other person does not in

any way weaken or refute the merits of McDonough's motions.

70. Simply put, McDonough's motions are based on the evidentiary facts and, contrary to the ridiculous claim of the SDA, do not require his (now retracted) statements that no others would be indicted or prosecuted "to fly".

Refusal to Offer or Accept Misdemeanor Pleas

71. Consistent with his stated prosecution posture, shortly before Indictment, the SDA' informed me that he "could not" offer or accept misdemeanor pleas from McInerney, Brown or any others (except McDonough, who informed the SDA that he will not plead to any offense because he is innocent of any crimes alleged).


72. That fact also confirms that the SDA never intended to indict or prosecute the Democrat incumbents and party workers, although given his inexplicable recent denial of other facts it is expected that he will now deny that he ever made that statement.

73. Given the fact that he has not and likely will not indict those others, why would he not offer or accept their pleas of guilty to misdemeanors unless he had no intent to

prosecute them at all? -

Application for DNA Confirms SDA has No Intent to IndictlProsecute Others

74. The application for DNA samples made by the SDA also shows that he had and likely still has no intent to indict ( or prosecute) Brown, Mclnerney and others.

75. In the twenty-eight (28) page affidavit ofInv. Ogden in support of his application for seizure of DNA samples, the SDA alleges that the facts stated establish probable cau~e for obtaining them from: 1. Dan Brown (p. 13-15); 2. J. Brown (p.16-18); 3. Campana (p.18-19); 4. DeFigIio (p.19-20); 5. -Galuski (p.21); 6. LoPorto (p.21-24); 7. McGrath (p.26); 8. Mcinerney (p.27); and, 9. McDonough (p.24-26). A copy of Inv. Ogden's affidavit for search warrant is attached as Exhibit B.

76. More specifically" in Inv. Ogden's affidavit, the SDA alleged that "[t}he evidence outlined in this application demonstrates that each participated in a' conspiracy to

influence ... the subject election. p.27)

77. Still, the SDA did not seek to indict Dan Brown, J. Brown, Campana, DeFigIio,

Galusld, McGrath or McInerney for conspiracy or ~y substantive crimes.

Application for Fees Confirms SDA has No Intent to Indict/Prosecute Others .

78. The application for payment of interim fees and expenses by the SDA also shows that he had and likely still has no intent to indict prosecute) Brown, McInerney and others. A copy of the same is attached as i~:llil~i~r!~'~;!~I~

79.' In that affirmation, the SDA stated, in pertinent part (with emphasis added):

"In summary, numerous Troy housing residents '" have signed sworn statements complaining that forged [AAE and AB} were filed with the [BOEj. In most instances, these residents alleged that false excuses as to why that person would not be able to vote on Primary Day were written on [AAB}... Usually, the resident never received an [AE}, but rather, [an AE} with the resident's forged' signature was filed with the [BOEj. . The evidence so far criminally implicates nine [9J Democrat office holders and party workers in a conspiracy to win the [WFPJ line for City of Troy Democrat Party candidates ... by falsely completed [AAE and ABJ with the [BOEj. (~8) ... The scandal has received fairly intense media scrutiny in the local media, as well as a televised report on the national broadcast of the Fox network, which may be viewed online ... The decision of [the Supreme Court} to invalidate some 33 of the [AE} involved states 'the testimony and affidavits reveal significant election law violations ... that have


compromised the rights of numerous voters and the integrity of the 'election process' '" It is therefore fair to characterize this as an important case." (~9)

80. Further, the SDA stated in that affirmation (with emphasis added):

"In this case, approximately 40 voters allege that their votes were stolen. Possible charges against defendants include forgery, possession of a forged instrument, filing false instruments, and various criminal violations of the Election Law. . .. I can state with confidence that the case will be indicted, but I cannot predict whether there will be a trial, or multiple trials. Obviously, the more defendants who can be induced to plead guilty before trial, the simpler '" the case becomes. The greater the number of defendants, the more complex.:_ .. " (~11)

81. Thus, in his application for fees the SDA acknowledges again that there are at least nine (9) Democrat officeholders and/or party workers implicated in "the massive fraud committed on the voters of Rensselaer County", including most importantly, the forged signatures of voters on more than forty (40) AB!

82. Still, the SDA did not seek to indict Dan Brown, J. Brown, Campana, DeFiglio,

Galuski, McGrath or McInerney for conspiracy or any substantive crimes.

83. As will be discussed, it is likely that the SDA never intended to indict or prosecute any others in accordance with his stated prosecution posture (i.e. that they enter felony pleas) and will never do so.

Prosecution Posture Shows No Intent to Indict or Prosecute Others

84. The SDA's stated posture that all "persons of interest" must enter a felony plea in negotiation of the matter in lieu of indictment also shows that he had no intent to indict . (or prosecute) Brown, McInerney or any other Democrat incumbent or party worker for several practical reasons,

85. Most obviously, the SDA has not mdicted any other persons. Is it to be believed that the SDA will seek their indictment after he has already taken one and one-half years to bring charges against only McDonough and LoPorto? If so, when?

86. It is beyond dispute that most prospective prosecutions of cases do not get better with the passage of time. As a practical matter, if the SDA waits any longer to prosecute any others the People's case will likely be irreparably prejudiced.

Facts Show that SDA Claim of Other Meaningful Prosecutions is a Farce

87. Lastly, the simple facts show that the SDA never intended to indict or prosecute to felony conviction Brown, McInerney or any other Democrat incumbent or party workers after the Indictment of McDonough and LoPorto.

88. It is also obvious that he will not indict or meaningfully prosecute any of them unless he feels compelled to do so for personal and/or political reasons, i.e. he comes to the conclusion that because of McDonough's efforts, "the jig is up", so to speak.


89. The SDA has also represented to counsel that he has no "cooperation" or other agreement with either Brown or McInerney concerning the matter. If that representation is true, it confirms that he never intended to indict or prosecute either of those suspects.

90. In effort to finally expose the charade of the SDA, the following summary of the persons implicated by the testimonial and documentary evidence as being involved in the commission of the alleged "massive fraud on the voters of Rensselaer County" in various 2007, 2008 and 2009 elections is provided as proof of what he refuses to admit, i.e. no other Democrat incumbent or party worker will be indicted or meaningfully prosecuted:

WFP Workers

1.· Sara Couch:

2. Brant Caird:

3. Jim Welch:

Democrat Workers

4. Anthony DeFiglio:

5. Thomas Aldrich:

6. Dan Brown:

7. Mike Leonard:

8. Rick Mason: .


9. - O'Malley:

Democrat Incumbents

10. Galuski:

11. Campana:

12. McGrath:

Will not be prosecuted by admission of SDA. Ditto.

Ditto (Agreement of no prosecution).

Ditto (Agreement oflesserlno prosecution). Ditto.

Never targeted or mentioned for prosecution. Ditto.


Immunity from prosecution, post-perjury.

No .evidence to support any prosecution.

See below, Agreement of lesser/no prosecution. See below, Agreement of lesser/no prosecution.

13. 14.

J. Brown:


No prosecution, likely agreement in principal. No prosecution.

91. Who else then, does the SDA later intend to indict or otherwise meaningfully.

prosecute? The undeniable facts provide an answer to that rhetoric question: No one, because that would be contrary to his personal and political interests and agenda.

SDA Agreement with Campana of No or Lesser Prosecution

92. On or about December 22, 2010, the SDA and Campana entered into an agreement in principal wherebyCampana executed a written waiver of his "speedy trial" rights in lieu of indictment or criminal charges. A copy of that "Speedy Trial Waiver" is attached as ~X1D1lWlllli~~ai~

93. Under all the circumstances, it is obvious that the SDA has agreed in principal to either not prosecute Campana or to allow him to plead guilty to a non-criminal offense in


disposition of any charges that could be brought against him. Why else would the SDA not have sought an indictment against Campana at the time of the GJ presentation?

Brown and McInerney Will Not be Prosecuted

94. Therefore, despite the SDA's pretense that he intends to indict and prosecute others but that it be "unwise" to disclose to counsel some secret strategy he has concerning the same, the simple fact is that there are no other persons to indict or otherwise prosecute other than Brown and McInerney, as stated.

95. Also, for all the reasons stated, it is clear that the SDA will not indict or otherwise meaningfully prosecute those two primary suspects allegedly involved in what is clearly the most "massive fraud perpetrated on the voters of Rensselaer County" known.


Terms of Cooperation Agreement with McGrath - No or Lesser Prosecution

96. Lastly, it must be mentioned that the very terms of the purported Cooperation Agreement that the SDA entered into with McGrath in return for his incrimination of McDonough show that the SDA's failure to prosecute McGrath and others is no more than an egregious fraud perpetrated on the already victimized voters as well as a gross perversion of criminal justice consistent only with his prosecutorial misconduct.

97. It is also the height of hypocrisy that the SDA has speciously asserted that Mcfronough.. his counsel and, implicitly, those voters victimized by, McGrath are all being non-truthful after he knowingly gave McGrath immunity from prosecution in return for his patently incomplete, non-truthful and inaccurate statement that is contradicted by substantial unimpeachable documentary and testimony evidence.

98. In important part, the purported Cooperation Agreement executed by the SDA and

McGrath on March 12~ 2010 states, in specific part:

"1 agree to truthfully disclose all information to the [NYSP} and [SDA} .... with respect to my activities and others concerning the September 15, 2009 primary ... I must ... give complete, truthful, and accurate information, to the best of my ability, during my statements and any testimony ... I must not attempt to protect anyone through false information or omission, and I must not falsely implicate anyone." (~ 1)

1 understand that if 1 have knowingly given false, incomplete, or misleading

information to the [NYSP or SDA} that the [SDA] will void the agreement, and

Lmay be criminally prosecuted I understand that if I do not violate any

provision of this agreement, I will not be criminally prosecuted for any matter arising from that primary." (~ 4)


99. However, the sworn testimony of the voters indisputably establishes that McGrath stole their votes and in his statement to the SDA failed to provide "complete, truthful, and accurate information" and protected others "through false information," as follows:

A. In regard to voter Thomas Dickinson, McGrath stated:

- Dickinson entered his name, address and Rick Mason as the person designated to receive his AB on his AAB;

- McDonough entered the place/date Dickinson would be out of county; and,

- He signed Dickinson's mime on AB and AB envelope with his permission.

In Contradiction, Thomas Dickinson stated:

- He signed a document/voter registration card for McGrath,

- But, he did not give anyone any information on the AAB,

- He did not receive an AB, sign an AB envelope or vote.

B. In regard to voter Jennifer Taylor, McGrath stated:

Taylor entered her name, address, signature and Rick Mason as person designated to receive her AB on her AAB;

- He told McDonough where Taylor said she would be on election day and McDonough wrote that she would be "visiting family in Massachusetts" and dates out of county on her AAB; and,

- He signed her name on AB envelope and voted her AB with her permission.

In Contradiction, Jennifer Tavlor stated:

McGrath and another man asked her to sign a voter registration card and she checked WFP as directed,

She did not get an AB, pick a candidate, sign an AB envelope or visit family in Massachusetts as stated on AAB.

One AAB dated August 13, 2009 has her signature and she signed a second AAB the same date.

She does not recall gettirig an AB or AB envelope.

It looks like her signature on the AB envelope and she must have signed it but she did not give anyone permission to sign name or vote for her.

C. In regard to John Gilbert, McGrath stated:

Gilbert was embarrassed about his literacy and had his wife sign his name; He entered Gilbert's name, address and Leonard as person to obtain AB;

He does not recall who wrote Gilbert's date of birth or would be in "South Yarmouth Cape Cod", but not his handwriting;

He signed Gilbert's name on the AB envelope and voted his AB with his perrmssion.

In Contradiction, John Gilbert stated:

He cannot read/write too well,


He was not registered to vote; never saw AAB and the signature on it is not his; McGrath had a brown envelope and opened it and had him sign something;

He did not believe it is his signature on AB envelope, but not certain; He never saw AB and never voted; just signed an envelope.

D. In regard to Stephan Carpenter, McGrath stated:

He signed and completed AAB with information from Carpenter;

Carpenter signed his AB envelope and he completed Carpenter's AB with permission and "licked the envelope and mailed it to the BOE as I did with all the ballots."

He knew Carpenter for 12-15 years and used to work together

In Contradiction, Stephan Carpenter stated:

McGrath asked to vote for him and signed voter registration form and looks like his signature;

Recalls signing AAB;name spelled wrong and incorrect address on both forms; Not recall seeing AB envelope, signature looks like his;

Not recall checking boxes on a paper ballot;

"I am familiar with the McGraths because of McGrath who is a judge. If my ballot is located and] votedfor [him] ] have no objection to the ballot."

E. In regard to Marc Welch, McGrath stated:"

- He has known Welch all of his life; .

- He did not fill-out AAB but introduced Welch to Brown and Aldrich the

Saturday before primary and they filled-out-Welch's AAB with him; - Welch had his AB and signed Ills AB envelope;

- He completed AB with Welch because he has trouble writing; and,

- He licked Welch's AB envelope and sent to BOE for voter.

In Contradiction, Marc Welch stated:

McGrath and other man asked him to sign an AAB and he did; but He did not sign an AB; instead, he voted in person.

100. The statements of the voters were obtained and known by the SDA well before he entered into the purported Cooperation Agreement with McGrath and accepted his sworn written statement pursuant thereto.

101. Consequently, it was clear that when the SDA accepted McGrath's statement he knew that McGrath failed to provide "complete, truthful, and accurate information".

102. Incredibly, the SDA essentially knowingly elicited the statement of McGrath addressing the allegations of fraud and forgery related to the specific voters whose AAB and/or AB he was involved in obtaining/completing/filing, knowingly accepted McGrath's patently non-truthful statements in contradiction of the unimpeachable


testimony of those voters and then commenced a baseless prosecution against McDonough based upon McGrath's patently incredible statement.

103. Therefore, by its very terms, McGrath violated the express terms of the purported Cooperation Agreement and it must be voided by the SDA.

104. Under the circumstances, the SDA's failure to void the Cooperation Agreement and prosecute McGrath is nothing less than another fraud upon the very voters who have been victimized in the most massive case of voter fraud in Rensselaer County history.

105. In short, the SDA's acceptance of McGrath's statement is a sham, an intolerable insult to the disenfranchised voters and a grievous miscarriage of justice perpetrated by the SDA in furtherance of his alleged misconduct and conflicting personal interests.

Possible Subordination of Perjury before Grand Jury

106. Most distressful is the prospect that the SDA called McGrath as the prosecution's primary witness against McDonough before the Grand Jury.

107. It is respectfully submitted that if the SDA elicited the testimony of McGrath that is consistent with his written statement and contrary to the testimony of said voters as stated, he apparently also thereby necessarily suborned perjury.

Lack of Handwriting Samplers

108. Lastly, it is not surprising that the SDA has not moved for handwriting samplers of McInerney or Brown as primary suspects. Of course, his failure to do sois consistent with his improper prosecution of McDonough and dereliction of his duties to prosecute those responsible for the most massive fraud of voters in Rensselaer County history.

109. Therefore, at the appropriate time, McDonough will seek that relief of the Court.

WHEREFORE, defendant McDonough respectfully moves for Orders of this Court granting the relief requested in the Notice of Motion, together with such other and further relief as the Court deems just and proper, including leave to renew said motions upon any information or other grounds not now reasonably apparent to the defendant.

Dated: March 14, 2011


~:::....__- -_

Brian D. Premo, Esq.

Attorney for Defendant McDonough 20 Corporate Woods Boulevard Albany, N. Y. 12211

Phone: (518) 436-8000


To: Special District Attorney Trey Smith, Esq.

Smith Hernandez, LLC Rensselaer Technology Park 105 Jordan Road

Troy, New York 12180-8376


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