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PREMO LAW FIRM PLLC
20 CORPORATE WOODS BOULEVARD ALBANY, NEW YORK 12211
'Tefeplione: (518) 436-8000 Tacsimile: (518) 436-0659
July 19,2013 Stephen A. Pechenik, Esq., Rensselaer County Attorney 1600 ih Avenue Troy, New York 12180 John W. Bailey, Esq. Bailey, Kelleher & Johnson, P.C. Pine West Plaza 5, Suite 507 Washington Avenue Extension Albany, New York 12205 Robert A. Becher, Esq. 5 Wilson Street Albany, New York 12207 via Facsimile (270-2954) and E-mail
via Facsimile (456-4767) and E-mail
via Facsimile (436-4583) and E-mail
Thomas 1. O'Connor, Esq. via Facsimile (862-1519) and E-mail Napierski, Vandenburgh & Napierski 296 Washington Avenue Ext. Albany, New York 12203 Re: Edward G. McDonough v. Youel C. Smith (aka Trey Smith), et. al.
Gentlemen: This letter concerns the issues regarding criminal defense fees as compensable damages, the claims against District Attorney Richard McNally, and immunity from civil liability. Most, if not all, of the relevant facts discussed are now part of the criminal case record. Therefore, it is again suggested that defense counsel review all documents of the related private investigation, Lambertsen action, NYSPITrey Smith criminal investigation and criminal case because all of McDonough's claims are established by the substantial, incontrovertible testimonial and documentary evidence reflected in those records. 1. Good Faith Settlement Demand Inclusive of Criminal Defense Fees
In relation to our recent discussion, Mr. McDonough now demands the amount of $5,000,000.00 in settlement of his claims prior to commencement of action. Thereafter, McDonough will seek payment of the amounts previously stated in my March 25 letter, including punitive damages from individual defendants.
Criminal Defense Fees are Compensatory Damages
Under common law, all monetary losses caused by a tort-feasor's actions are recoverable as compensable damages. Thus, ".., damages [oj] attorney's fees expended in the subsequent defense of the criminal prosecution are properly attributable to the tort of malicious prosecution." Broughton v. New York, 37 NY2d 451, 459 (1975). See, also, Palmquist v. City o[Albany, 112 AD 2d 624,624-625 (3rd Dept. 1985); Woodard v. City o[Albany, 81 AD 2d 947, (3rd Dept., 1981); Heck v. Humphrey, 512 US 477 (1994); and, Wallace v. Kato, 127 S. Ct. 1091 (2007). Furthermore, "[sjection 1983 is derivedfrom §1 of the Civil Rights Act of 1871 ... It was intended to create 'a species of tort liability' in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 US 247 (1978); Imbler v. Pachtman, [supra). [The Supreme Court] noted in Carey that there was little in the section's legislative history concerning the damages recoverable for this tort liability, 435 US 255. In the absence of more specific guidance, [the Court] looked first to the common law of torts ...r with such modification or adaptation as might be necessary to carry out the purpose and-policy of the statute. Id., at 253-264. [The Court has] done the same in other contexts arising under §1983, especially the recurring problem of common-law immunities." Smith v Wade, 461 U.S. 30, 34 (1983). "Compensatory damages ... are mandatory; once liability isfound, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintifffor his loss." Id, p. 52. The Supreme Court "has 'repeatedly noted that 42 U S. C. §1983 creates a species of tort liability. ' Memphis Community School Dist. v. Stachura, 477 U S. 299, 305 (1986) .... [Ojver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensatedfairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under §1983 as well. Carey v. Piphus, 435 U S. 247, 257-258 (1978)." Heck v. Humphrey, 512 Us. 477, 483 (1994). "The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process ... But a successful malicious prosecution plaintiff may recover, in addition to general damages, 'compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society.' Id., at 887-888 ..." Id, p 484. Consequently, McDonough's criminal defense attorney fees are compensatory damages in his malicious prosecution claim against all defendants other than Trey Smith and DA McNally and compensatory damages in his federal civil rights claim against all defendants. The hourly attorney fees incurred in defending the criminal action exceed $2,000,000.00 and are required to be paid as part of any settlement of the matter.
Liability of Trey Smith
Among other things, it is alleged that: Trey Smith fabricated evidence in an investigatory role and then used it to wrongfully indict and prosecute McDonough as a scapegoat for other Democratic operatives and candidates who committed numerous elections crimes; DA McNally unlawfully disqualified himself and had Trey Smith appointed to accomplish that task; Trey Smith indicted and prosecuted McDonough for falsely alleged acts that are not crimes; and, Trey Smith, DA McNally and others fabricated and suppressed evidence in effort to wrongfully indict, prosecute and convict McDonough. It is also alleged that Trey Smith, DA McNally and other county policy-makers knowingly permitted McDonough's wrongful prosecution by failing to take action to have Trey Smith's unlawful appointment nullified pursuant to controlling law of which they had knowledge. In summary, the criminal case record, including pre-trial filings, NYSP records and testimony of the prosecution witnesses, irrefutably shows that Trey Smith: interviewed witnesses and orchestrated the fabrication of evidence that he later used to wrongfully indict and prosecute McDonough; prosecuted McDonough for alleged acts that are not crimes as a matter of law; and wrongfully prosecuted McDonough to protect from prosecution those Democratic operatives and candidates who committed elections crimes. That record also proves there is no justification for his actions. In fact, the evidence in the criminal case alone proves McDonough's claims. DA McNally's unlawful disqualification of himself and appointment of Trey Smith, DA McNally's and Trey Smith's resolute opposition to the nullification of that appointment in contradiction of the clear law, Trey Smith's failure to prosecute those who clearly committed numerous readily provable elections crimes despite overwhelming evidence of their guilt, Trey Smith's intentional misleading of the NYSP with the falsehood that those known to be guilty of the actual elections crimes they committed could not be prosecuted because there was not sufficient corroboration of accomplice testimony when, in fact, there existed overwhelming, irrefutable, and legally sufficient evidence to convict all of them, and the trial testimony of McInerney, Brown, Ogden and 0 'Malley all expose the true nature of the defendants' actions and establish McDonough's claims. For instance, McInerney and Brown admitted at trial that they were told by Trey Smith in 2009,2010 and 2011 they would not be prosecuted for their numerous crimes (including completing Applications they knew McDonough was falsely indicted for having done). They also admitted that they were therefore not concerned about being prosecuted until 2011 when McDonough forced their arrests through an aggressive defense. McInerney also admitted on cross examination that although he committed hundreds (or thousands) of elections crimes in 2007, 2008 and 2009 and knew that McDonough was being wrongfully prosecuted for some of his acts, he met with DA McNally soon after the crimes were discovered, retained DA McNally's attorney on his advice, destroyed his cell phone (which contained his test messages) on their attorney's advice, and then returned to his usual routine with the knowledge that Trey Smith never intended to prosecute him.
O'Malley testified that Trey Smith threatened to prosecute him for perjury and election crimes he did not commit but then called him at home on or about the night before he returned to the Grand Jury. He then returned to the Grand Jury and incriminated McDonough in directly contradiction of his prior testimony. Nonetheless, he claimed that he did not know Trey Smith and could not recall any of their conversation. McGrath testified that Trey Smith gave him complete immunity from prosecution before he told them he witnessed McDonough enter false information on 2 Applications but never himself committed any crimes. At the time he was given immunity and at trial he claimed that the voters completed and signed the Applications and absentee ballots he solicited or gave him permission to do so. However, at the time of the investigations and at trial the voters irrefutably testified that' they never completed or signed their purported elections documents or gave McGrath permission to do so. Not surprisingly, Ogden testified at trial that he and Trey Smith believed convicted felon McGrath over the voters during their investigation of the case. In short, McGrath's false incrimination of McDonough was elicited by Smith and Ogden in return for immunity for numerous readily provable election crimes he denied committing in complete contradiction of the sworn statements of the victim voters and the elections documents. Simply put, as discussed below, McDonough's claims against Trey Smith, DA McNally and the others are established by substantial irrefutable evidence which also shows that neither of them has absolute or qualified immunity for their acts. 4. NYS Attorney Gener-al Evidence Confirms that Trey Smith Forged or Notarized the Forged Signature of Voter Jolene Van Vranken on an Affidavit he Introduced before the Grand Jury to. Wrongfully Indict Mr. Mcllonough: No. Absolute immunity because Investigative and/or Administrative Capacity & No. Qualified Immunity because Violation of Clearly Established Law
Prosecution witnesses Jolene Van Vranken and Jermaine Joseplt testified at trial that their purported signatures on the affidavits Trey Smith notarized and introduced before the Grand Jury were not their signatures and they never even saw the affidavits. Notably, the glaring similarity in ink and handwriting between the forged signatures and Trey Smith's signature on those documents is also. undeniable. That evidence is discussed further in the motions to. dismiss that are in your possession. Still, Trey Smith would have us believe that those prosecution witnesses do. not know their own handwriting and falsely testified about the matter! In any event, a NYS Attorney General investigation into the matter confirmed that Trey Smith forged and/or notarized the forged signature of Jolene Van Vranken on her purported affidavit that he introduced before the Grand Jury to indict McDonough. A copy of those documents obtained in response to. a FOIL request is attached. Suffice it to say, the forgery of a signature or notarization of a forged signature on even one purported affidavit used to obtain a wrongful indictment is sufficient to at least corroborate all of the evidence establishing McDonough's claim against Trey Smith. As
stated, however, the trial testimony of Anthony DeFiglio, William McInerney, Kevin McGrath, Kevin 0 'Malley, John Brown, John Ogden, Alan Robillard and Anthony Renna also clearly proves that Trey Smith conducted, directed and/or supervised the NYSP investigation and in investigatory and administrative roles orchestrated the fabrication of evidence to wrongfully indict, prosecute and convict McDonough and deprive him of his constitutional rights to due process and a fair trial.
DA McNally has No Immunity for his Ultra Vires, Administrative and ExtraJudicial Conspiratorial Actions in Violation of Established Law
Mr. Becher asserts that DA McNally has immunity for all his acts. That assertion ignores the nature of McDonough's claim and the fact that DA McNally never acted in the prosecution of any case. All of his actions were administrative, extra-judicial or nonprosecutorial. In any event, substantial incontrovertible evidence proves that he also acted in conspiracy with Trey Smith, McInerney and others to wrongfully prosecute McDonough in lieu of those guilty of the election crimes through the fabrication and suppression of evidence and would have no immunity for the reasons discussed. Common Law Absolute Immunity from Action for Malicious Prosecution Under common law, prosecutors have imniunity from malicious prosecution. Thus, the U.S. Supreme Court held that they have absolute immunity in civil rights claims for acts "intimately associated with the judicial phase of the criminal process," to include even the introduction of false evidence or subornation of perjury at trial. Absolute and Qualified Immunity from Civil Rights Claims is Functional However, prosecutorial immunity in civil rights claims is functional and it attaches only to acts directly related to the initiation or prosecution of a criminal case. Consequently, like any other public officer they have only qualified immunity for their administrative or investigatory acts, including interviewing a witness or defendant, etc. Also, they have no immunity for extra-judicial acts, including public statements, etc. Please review wellestablished applicable case law. DA McNally Did Not Act in a ProsecutoriaI Capacity Therefore, DA McNally has no immunity for unlawfully disqualifying himself and having Trey Smith appointed special prosecutor or his subsequent acts in furtherance of the wrongful prosecution of McDonough, as alleged. In short, none of his acts were intimately related to the judicial process in a case he was prosecuting. All of his acts were administrative or extra-judicial, i.e. (1) giving legal advice to McInerney (his friend, political supporter and past campaign worker who committed similar elections crimes to help him win election by absentee vote in 2007 and was primarily responsible for the subject election crimes) that resulted in the destruction of evidence (any text messages on his cell phone, which he testified he destroyed on the advice of his attorney who was also DA McNally's attorney for his 2007 election); (2) giving legal advice to Mr. Martiniano (a primary eyewitness) that resulted in the suppression of evidence that directly incriminated McInerney and Brown but exculpated McDonough before his indictment; (3) giving legal advice to McDonough (the publicly known target of a Grand Jury that,
together with other actions of Trey Smith, resulted in his declination to testify before the Grand Jury contrary to his best interests and attorney's advice); (4) opposing McDonough's motion to disqualify Trey Smith in direct contradiction of the law of which he had knowledge and notice; and (5) making public comments likely to deprive McDonough of his constitutional rights. His actions are further discussed below. a. The indisputably record facts show that DA McNally unlawfully "disqualified himself and his entire staff" from a clearly broad-scoped investigation of numerous election crimes apparently committed by then unknown Democratic candidates and operatives to win the WFP 2009 City of Troy primary for their own benefit. DA McNally purportedly disqualified himself from the investigation of unknown Democratic operatives and/or candidates "to avoid the appearance of impropriety and speculation of politics" but effectively had his friend and fellow Democrat Trey Smith appointed special prosecutor. Moreover, he did so by an off-therecord, in-chambers discussion without any proper application or legal basis. Notably, at that time, only Democratic candidate McGrath and Democratic operative DeFiglio were identified by several voters as being involved in the solicitation of Applications and/or absentee ballots. McInerney was never named or identified bv any voter as being involved in any aspect of the activity in the affidavits upon which the Lamberstsen action was based. In any event, the evidence proves DA McNally disqualified himself to further the wrongful prosecution of McDonough and protect from prosecution his friend, former campaign worker, and Democratic operative, McInerney, who helped him win election in 2007 by AB vote (many of which he admittedly forged) as well as the other Democratic candidates and operatives who committed the crimes. The evidence also circumstantially proves that he was aware before 2009 that McInerney forged AB in support of his 2007 election. The following facts are matter of record. Soon after the election crimes were discovered in September 2009, McInerney threatened to "take everyone down" with him if prosecuted. He then visited DA McNally at his home, retained DA McNally's personal attorney based on his advice, avoided service of process (subpoena) and destroyed his cell phone based on the advice of his and DA McNally's attorney's (which is tantamount to tampering with evidence, i.e. the destruction of any incriminating text messages on his cell phone), returned to his usual routine without fear of prosecution, and thereafter remained silent as McDonough was wrongfully prosecuted based on allegations he knew to be false for the crimes he and others committed. In fact, he admitted at trial that he knew in and after 2009 that Trey Smith had told his attorney that he would not be prosecuted (in contradiction of Trey Smith's repeated affirmations denying that fact). He also admitted that he did not have any concern about being prosecuted until McDonough essentially forced his arrest by defending himself. Later, more than a year after telling Mr. Bugbee and defense counsel that he could not do so, Trey Smith perfunctorily obtained an Order extending his authority to
prosecute McInerney for crimes committed in 2007 and 2008 (with the assistance of DA McNally and again without legal basis), immediately after McInerney was arrested at the direction of NYSP Sr. Inv O'Brien without Trey Smith's knowledge. Trey Smith then orchestrated McInerney's jurisdictionally defective guilty plea to one felony in satisfaction of the hundreds he committed in 2007, 2008 and 2009.1
Specifically, on or about September 24 - 28, 2009, DA McNally wrongfully obtained an ultra vires Court Order appointing Trey Smith special prosecutor to investigate and prosecute any person for the subject election crimes without proper application or legal basis for the disqualification of himself and all his assistants from the investigation or prosecution of any particular person. (See, DA McNally's purported unsigned and unstamped letter request for appointment of a special prosecutor dated September 24,2009, County Court Order of appointment dated September 28, 2009, and all prior related pretrial motions and papers within your possession.) In fact, however, for all the reasons discussed in the Legal Brief within your possession ("The District Attorney Did Not Establish a Basis for his Disqualification and Therefore the County Court had No Authority to Appoint a Special District Attorney Pursuant to County Law §701"), it is a matter of incontrovertible fact that DA McNally failed to show any legal basis for his disqualification. Furthermore, as discussed in prior papers, the irreconcilable dichotomy between his September 2009 disqualification and failure to seek disqualification in January 2008 from a pending Grand Jury investigation into the alleged acts of the Democratic Chairman who only months before selected him as Democratic candidate for District Attorney. and, upon information and belief, his failure in 2012 and/or 2013 to move for disqualification from the prosecution of alcohol-related charges against the daughter of the same Democratic Chairman from whom he obtained support for nomination as the Democratic candidate for Justice of the Supreme Court in 2013, is repugnant to the law, ethics, common sense and logic. For all the reasons discussed, the inconsistency is merely more circumstantial evidence of his alleged misconduct in furtherance of the wrongful prosecution of McDonough. DA McNally disqualified himself without application or basis and had his friend and fellow Democrat appointed to the prosecution of unidentified Democratic candidates and operatives who committed the subject crimes. In short, if McInerney had previously admitted his crimes to DA McNally and/or threatened to "take him down" politically if prosecuted (through disclosure of his forgery of AB in support of his 2007 election), DA McNally was required to disclose the same to the court and Mr. McDonough at the time of the disqualification and thereafter. Furthermore, even if McInerney had threatened or
I See letters from Trey Smith and DA McNally dated July 18,2011 and July 19,2011, respectively, in your possession. See also, Judiciary Law §493 (An attorney, ... who, having himself prosecuted or in any manner aided or promoted any action of proceeding in any court, as district attorney or other public prosecutor, afterwards directly or indirectly advises in relation to, or takes any part in, the defense thereof, as attorney or otherwise; ... is guilty of a misdemeanor.), and, Judiciary Law §487 (An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; ... Is guilty of a misdemeanor.); NY Rules of Professional Conduct, Rule 3.3, Rule 3.4, Rule 3.8, Rule 4.1, and Rule 8.4; and relevant discussion in the Notice of Claim and Legal Brief previously provided to the County on issue of disqualification.
admitted his crimes to DA McNally there would be no basis for the disqualification of his entire office unless he was expected to be called as a witness because there could not have been any attorney-client relationship or other required actual or likelihood of prejudice, regardless of his friendship or past campaign assistance. Nonetheless, as discussed, before and/or after his disqualification, DA McNally: i. Had conversations with Trey Smith concerning the matter; 11. Accepted NYSP privileged lab reports concerning the return of DNA testing; 111. Met at his home and gave legal advice to his friend and former campaign worker, McInerney, (who just happened to have committed most of the 2009 election crimes, as well as many others in 2007 and 2008), at least with respect to legal representation (i.e. that McInerney retain the same attorney who represented him in regard to his 2007 election won by AB, some of which he admittedly forged); IV. Failed to disclose that information to the court or McDonough; v. Advised Martiniano, who was one of only two people who were known to have assisted McInerney in soliciting the questioned applications for AB who was not interviewed during the investigation directed by Trey Smith, months before McDonough's indictment that he should not come forward with whatever material facts he knew or worry because "it will all be over soon" (the evidence was that Brown and McInerney admitted they were going to trace forge signatures from Applications to AB envelopes); VI. Directly and indirectly contacted McDonough after he gave notice of his intent to testify before the Grand Jury and gave him the names of attorneys he should retain in substitution of me after I gave my advice that he should testify before the Grand Jury. Democratic Chair Wade then called him and told him that he should not testify before the Grand Jury and when McDonough contacted the attorney Wade recommended, that attorney told him that he likely would not have him testify in the Grand Jury. At the same time, other BOE employees informed McDonough that Trey Smith had treated them badly before the Grand Jury. All of those actions had the effect of furthering the wrongful prosecution of McDonough by causing him to not appear before the Grand Jury. Thus, DA McNally abdicated his duties in contravention of County Law §701, case law and ethics. See, Legal Brief. DA McNally then gave legal advice to: (i) the person most responsible for the subject crimes (McInerney) that led to the destruction of evidence that would likely have incriminated him and others in crimes; (ii) an eyewitness with personal knowledge of material evidence (Martiniano) that caused the suppression of evidence incriminating McInerney and Brown and exculpating McDonough before any Grand Jury action; and (iii) the target of a pending Grand Jury action (McDonough) that was contrary to his interests and the advice of his attorney, without the latter's knowledge or consent. All of those acts furthered the wrongful prosecution of McDonough and protected McInerney and other Democratic candidates and operatives guilty of the crimes.
b. After improperly disqualifying himself, DA McNally gave legal advice to McInerney, who was primarily responsible for the election crimes and failed to disclose 2 any related non-privileged discussion(s) to the court or defense counsel. Again, shortly after the election crimes were discovered in September 2009, McInerney threatened to "take everyone down" if prosecuted. More significantly, he disclosed at trial that he then drove about 45 minutes to DA McNally's home in Valley Falls purportedly only to get the name of an attorney to represent him in the matter. He testified he did so only because he did not want to ask that question on the telephone but that they did not talk about any other matter during their meeting. Needless to say, his testimony is patently incredible. In any case, DA McNally did not disclose the related facts to the court or McDonough at anytime. McInerney also testified at trial that: i. On DA McNally's advice he retained the attorney who represented DA McNally in his 2007 AB election won by AB (many of which he knew he had forged); and, 11. On the advice of his and DA McNally's attorney, he threw his cell phone into the river (thereby destroying any text messages stored on it). Not surprisingly, McInerney's cell phone call records are the only ones of any material witness that were never obtained by Trey Smith or the NYSP. Again, McInerney testified that after the crimes were discovered in 2009 he returned to his usual routine without concern of being prosecuted, despite the fact that: 1. He played aleadership role in the election crimes, forged signatures on numerous Applications and AB envelopes and falsely voted numerous AB in said primary; 11. He forged signatures on numerous Applications and AB envelopes and falsely voted numerous AB in 2007 and 2008 elections, still maintained at the BOE; 111. He had distinctive and readily identifiable handwriting; IV. Deliiglio worked closely with him in soliciting Applications in 2009 related to the AB he falsely voted and Applications and AB envelopes he forged, and had personal knowledge of facts that alone were sufficient to convict him; v. He had committed hundreds of election crimes in 2007,2008 and 2009 that were readily provable by the testimony of DeFiglio, Martiniano, the voters and others and the related elections documents on file at the BOE. As stated, McInerney testified that he had no concern about being prosecuted until August 2011 when he was arrested at the direction of Sr. Inv. 0 'Brien because Trey Smith had informed his attorney in 2009, 2010 and 2011 that he would not be prosecuted.
2 See, Judiciary Law §493 (An attorney, ... who, having himself prosecuted or in any manner aided or promoted any action of proceeding in any court, as district attorney or other public prosecutor, afterwards directly or indirectly advises in relation to, or takes any part in, the defense thereof, as attorney or otherwise;... is guilty of a misdemeanor.), and, Judiciary Law §487 (An attorney or counselor who: l. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; ... Is guilty of a misdemeanor.). See, also, NY Rules of Professional Conduct, Rule 3.3, Rule 3.4, Rule 3.8, and Rule 8.4.
Also, only because of McDonough's actions in defending himself, it is known that: 1. McInerney committed hundreds of elections crimes in 2007,2008 and 2009 that were readily provable by overwhelming testimonial and documentary Trey Smith intentionally ignored or failed to obtain during the NYSP investigation he supervised and conducted in 2009, 2010 and 2011; ii. McInerney helped DA McNally win election in 2007 by AB vote, many of which he forged, and had become a friend of his at that time; 111. McInerney was awarded the coveted patronage position of Troy City Clerk by the Democratic Chairman for obtaining AB in support of the elections of DA McNally and a majority of the Troy Council in 2007; IV. McInerney played a leadership role in the 2009 election crimes; v. After the 2009 election crimes were discovered, Democratic Chair Wade and others discussed how that issue should be "handled"; and VI. Prior to McDonough's wrongful prosecution, Brown suggested that McInerney plead guilty for the election crimes so that he and the other guilty Democratic candidates or operatives would not be prosecuted.
c. After improperly disqualifying himself, DA McNally visited the restaurant of a known suspect (LoPorto's) and advised a participant in the solicitation of questioned Applications (Martiniano) that he should not disclose evidence material to the subject crimes or worry about the matter because it would soon all be over, even before McDonough's indictment.
That conduct is n-ot only circumstantial evidenee of DA McNally's kno-wledge that the wrongful prosecution of Mclronough would end the matter without those guilty of the crimes ever being prosecuted, as alleged all along, but also that and Trey Smith had relied upon the misplaced and unsound expectation that McDonough and/or his attorney would not dare take the case of an overcharged (74 count) indictment to trial. It was also contrary to rules of ethics, public policy, law, the interests of justice and McDonough's civil rights. 3
Specifically, on/about September-December 2010, at LoPorto's Restaurant, Martiniano informed DA McNally that he knew the NYSP had or tried to interview everyone involved in the solicitation of questioned Applications except him, and, that he had personal knowledge of evidence material to the matter. In fact, Martiniano and Renna were the only Democratic operatives directly involved in the matter that had not been contacted or interviewed by the NYSP although they, Trey Smith and all the Democratic candidates and operatives involved knew that those two had assisted McInerney, Brown and others obtain some of the questioned Applications on September 14, 2009. He was never identified as having solicited Applications because the NYSP never showed any voters his DMV photograph. DA McNally then told Martiniano that he should not disclose the evidence to anyone or worry because "it was all going to go away soon anyway." Furthermore, he gave that advice without being told or asking what the evidence happened to be. Also, although
See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3_8, and Rule 8.4.
Martiniano may not have told DA McNally what evidence he possessed, he did tell him that it was material to the case and sought his advice as District Attorney. More importantly, the advice that DA McNally gave Martiniano resulted in the suppression of direct evidence of the guilt of McInerney and Brown as well as the innocence of McDonough before his indictment. In fact, on or about September 12, 2009, Brown told Martiniano that he was going to use Applications obtained that day to trace forge voter signatures onto AB envelopes and McInerney told him not to worry about his statement because "they were all going to [him}". See, attached affidavit of Martiniano dated May 8, 2013, obtained in preparation of the impending federal civil rights action. Obviously, McInerney and Brown knew what they had told Martiniano. Again, therefore, the significance of the relationships among DA McNally, McInerney, Trey Smith and the others who committed the election crimes is compelling circumstantial evidence of their wrongful acts. So, after his disqualification, DA McNally effectively suppressed evidence that would have directly incriminated McInerney and Brown but exculpated McDonough in the election crimes by given legal advice to a primary witness that was contrary to his oath of office, the law, public policy, the ends of justice and McDonough's constitutional rights. That unjustifiable act clearly furthered the wrongful prosecution of McDonough. The fact that Martiniano disclosed the facts to McDonough after reading his post-indictment motion to disqualify Trey Smith is of no moment. It is, however, telling that Trey Smith attacked his credibility and Brown held a press conference and called him a liar, especially because- the e-vide-ncelater discovered and adduced at trial proved that he told the truth about the matter, and Brown latter admitted that fact. d. After improperly disqualifying himself, DA McNally requested and/or accepted privileged NYSP lab reports related to DNA testing and had conversations with Trey Smith about the investigation and prosecution of the election crimes. 4 On or about September 24,2009 to December 2012, DA McNally talked with Trey Smith about the election crimes and caused and/or permitted the NYSP Crime Lab to send him copies of its reports on DNA testing despite the fact that: i. He had already improperly disqualified himself from the matter; 11. He was a friend and apparent confidant of McInerney against whom there was overwhelming evidence to prove his guilt of the election crimes; 111. McInerney visited him at his home after the crimes were discovered and upon his advice retained his personal attorney; IV. McInerney helped him win election in 2007by forging AB; v. O'Malley, a BOE employee appointed by Democratic Chair Wade, surreptitiously destroyed the 2007 Applications maintained at the BOE soon after McDonough demanded that Trey Smith obtain and maintain them as evidence of McInerney's guilt in the subject and past election crimes, despite being aware of the pending prosecution and other relevant facts;
4 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3.8, and Rule 8.4.
0 'Malley is a long time Town of Hoosick political operative, past Town Board member, and supporter of DA McNally; and Trey Smith previously was appointed attorney for the Town of Hoosick through a mutual friend of his and 0 'Malley.
e. After improperly disqualifying himself and in apparent concert with McInerney and Democratic Chairman T. Wade, DA McNally communicated directly and indirectly with McDonough without my prior consent or knowledge and recommended that he retain another attorney who would do a "better job for a lower fee" (or, according to Trey Smith, "was more competent'? See, Notice of Claim. 5 .. In September 2010, McDonough informed Trey Smith of his intent to testify in the Grand Jury and requested that BOE Commissioner Bugbee and others be permitted to do so. That fact was reported in the local newspapers and known by McInerney, DA McNally, the Democratic Chairman and others. Their knowledge of that fact is significant because in December 2010 the purported case against McDonough was based solely upon: i. McGrath's false, self-serving and uncorroborated testimony that he witnessed him write false excuses on two (2) Applications; 11. Inv. Ogden's patently improper and incredible testimony that the delivery agent names and excuses on all the Applications were in the same handwriting and a pattern that showed they were all written by the same person; and·, 111. The innocuous allegation that McDonough's (Touch or Trace-) DNA was purportedly found on the inside seal of three AB envelopes. Parenthetically, although he admittedly committed perjury in the Grand Jury, Brown did not directly incriminate McDonough in any crimes (there or at trial), because he could not (although he did not truthfully testify and exonerate him as he should have). Consequently, from September 2010 to January 2011 Trey Smith was aware that there was insufficient evidence to indict McDonough, especially if he and others testified on his behalf. Therefore, it was critical for a scapegoat prosecution that he not. This explains why Trey Smith, McInerney, DA McNally and the Democratic Chairman then took action to keep him from doing so. There simply is no other plausible reason for . DA McNally to AGAIN involve himself in the matter by giving legal advice to a named target of a Grand Jury investigation - especially when all other pertinent facts are considered, i.e. his close relationships and related discussions with Trey Smith and Mclnerney, his acceptance of privileged NYSP DNA results, his advice to a material eyewitness not to disclose important evidence, etc. First, without my knowledge or consent, DA McNally communicated with McDonough and essentially advised him to hire another attorney. McInerney then acted as DA Mcblally's messenger in providing McDonough the names of attorneys he recommended. Specifically, McDonough received a voice message from DA McNally on December 6,
See, Judiciary Law §487 and §493. Rule 4.1, Rule 4.2, and Rule 8.4.
See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3.8,
2010, requesting a return call. Then, on December 7, 2010, McInerney gave BOE employee Mary Sweeney a piece of paper listing the names of attorneys DA McNally said would "do a good job for a lower fee." On December 8, 2010, DA McNally answered McDonough's return call and asked if he had "gotten the message from our friend', but when asked to give his opinion about whether he should testify before the Grand Jury, said "I can't answer that question, I got to go" and abruptly ended the conversation. Shortly after that call, the Democratic Chairman called and told McDonough that he should not testify and also that one of the attorney's recommended by DA McNally owed him "a favor" and he would make a call to him. When that attorney was called, he told McDonough that he likely would not have him testify before the Grand Jury and that the case would probably be favorably resolved in a short time without great expense. At the same time, Trey Smith purportedly treated 0 'Malley and other BOE employees rudely in the Grand Jury ("almost as if they were criminals") and, as expected, they told McDonough all about it. Consequently, although it was obvious to me that Trey Smith was engaged in a scare tactic to keep him. from testifying, it caused Mcfronough more concern that he intended to "fuck him" in the Grand Jury. Trey Smith also essentially ensured that BOE Commissioner Bugbee did not testify before the Grand Jury about AB protocol and procedures that supported McDonough's innocence by advising him that he might incriminate himself, that he would be required to waive immunity and that it was in his interests to retain an attorney: Again, the tactic had the desired effect of scaring Bugbee from testifying before the Grand Jury about the absentee ballot process. All of those actions caused McDonough to not testify in the Grand Jury, contrary to his desire and my strong advice to do so. In short, because he then knew that Trey Smith was determined to wrongfully prosecute him in lieu of those Democratic candidates and operatives guilty of the election crimes, McDonough did not believe that Trey Smith would properly and fairly present the matter to the Grand Jury despite his innocence.
After improperly disqualifying himself, DA McNally made public extrajudicial statements that had a substantial likelihood of materially prejudicing McDonough's trial tofurther his wrongful prosecution. 6
On September 29, 2011, during a public WNYT interview, DA McNally characterized McDonough's defense as "ridiculous conspiracy theories" and admitted that he had talked with him and McInerney about the case. The obvious intended implication of his public statements was that McDonough's defense had no merits and he was guilty. Later, on or about October 19, 2011, during a Talk 1300 radio interview, DA McNally stated that "it would take an eternity" to understand the logic of McDonough's motion to dismiss the indictment and disqualify Trey Smith based on his illegal appointment and status as a material witness despite the fact that it was based on well-settled law and a few indisputable record facts of which he was aware.
6 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.6, Rule 3.8, and Rule 8.4.
Clearly, those extrajudicial comments had a substantial likelihood of materially prejudicing McDonough's impending trial and were apparently intended to deprive him of his rights to due process, a fair trial and to present a defense. See, letters of September 30, 2011 and October 19, 2011 sent to DA McNally in your possession. Again, there could be no plausible reason for such alleged extraordinary misconduct after his own self-disqualification other than to further the conspiracy against McDonough.
After improperly disqualifying himself, DA McNally opposed Trey Smith's disqualification and failed to commence a proceeding to have his appointment nullified, despite notice of its unlawfulness. 7
On or about September 24 to September 28, 2009, and thereafter until December 21, 2012, DA McNally allowed Trey Smith to continue the wrongful prosecution of McDonough by opposing his disqualification and failing to commence an action to have his illegal appointment nullified in accordance with the established law of which he was given notice. DA Mcblally's failure to take action to disqualify Trey Smith caused Mclfonough to suffer a continued wrongful prosecution that resulted in two protracted trials, great 'monetary expense and substantial personal injury. If he had taken proper action, Trey Smith's unlawful appointment would have been declared void before or shortly after McDonough was indicted. Instead, he allowed Trey Smith to continue to act illegally and in excess of the law in pursuing the wrongful prosecution. It will be alleged that DA McNally acted in concert with Trey Smith and others to wrongfully -pro'secute McDonough in effort to protect from prosecution Mclnerney and the other Democratic candidates and operatives guilty of the election crimes, and, that he was aware prior to his misconduct that McInerney falsified AB for his 2007 election won by AB vote. Thus, DA McNally has no absolute or qualified immunity for any of his alleged wrongful acts. Parenthetically, as Mr. Pechenik is aware, both Trey Smith and DA McNally personally contacted him and requested that he not bring action on behalf of the county to declare Trey Smith's appointment invalid and end the prosecution of McDonough.
Trey Smith has No Absolute Immunity for Investigatory and Administrative Actions and No Qualified Immunity for Acting to Deprive McDonough of his Constitutional Rights to Due Process and a Fair Trial in Violation of Clearly Established Law
It is well established that "there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by [a prosecutor] acting in an investigatory capacity, at least where the [prosecutor] foresees that he himself will use the evidence with a resulting deprivation of liberty, ... [T]hat right was clearly established in 1996 ..." Zahrey v. Coffey, 221 F3d 342, 344 (2d Circ., 2000).
7 See, Judiciary Law §487 and §493. Rule 3.8, Rule 4.1, and Rule 8.4.
See, also, NY Rules of Professional Conduct, Rule 3.3, Rule 3.4,
Consequently, Trey Smith's alleged fabrication of evidence in his investigatory and administrative roles for use before the Grand Jury and at trial violated a constitutional right that was clearly established at the time. "It has also long been established that a prosecutor who knowingly uses false evidence at trial to obtain a conviction acts unconstitutionally [citations omitted). Although a prosecutor is protected by absolute immunity for his actions in presenting evidence at trial [citation omitted}, theses cases serve to inform every prosecutor that his knowing use of false evidence is unconstitutional. Any prosecutor aware of theses cases would understand that fabricating evidence in his investigative role violates the standards of due process and that a resulting loss ofliberty is a denial of a constitutional right." Id,355-356. In this case, substantial direct and circumstantial evidence establishes that Trey Smith orchestrated the fabrication of testimony, suppressed evidence incriminating those who actually committed the election crimes, and suppressed exculpatory evidence through intimidation, coercion, and other tactics in his investigative and administrative capacity. In particular, it is alleged that in his investigative capacity he knowingly fabricated evidence with the intent to use it in the Grand Jury and at trial to wrongfully prosecute McDonough and deprive him of his liberty and rights to due process and a fair trial. It is alleged that he and others also conspired to do so and acted in furtherance of that conspiracy. It is also alleged that in his investigatory capacity he made promises arid threats to those responsible for the election crimes to induce them to give the false testimony he introduced against McDonough in Grand Jury and trial. As discussed in Zahrey and other cases, Trey Smith's fabrication of evidence is a due process violation and the resulting indictment, arrest, detention, restriction on travel and wrongful prosecution is the liberty deprivation. It is also alleged that his acts deprived McDonough of his right to a fair trial. In any event, McDonough's indictment and arrest was the cognizable result of Trey Smith's alleged fabrication of evidence and other wrongful acts in the improper investigation of the subject election crimes. See, Zahrey, at 352-353,354. See, also, Reid v. Georgia, 448 U.S. 438, 440 (1980). Consequently, neither Trey Smith nor DA McNally has absolute or qualified immunity for the alleged fabrication of false evidence and acting in conspiracy with those named others to use it to deprive McDonough of his constitutional rights. 7. John Ogden, J. Brown, K. McGrath, K. O'Malley and A. Robillard are Not Immune from Liability because they Conspired and Testified Falsely to Initiate and Further the Malicious Prosecution of McDonough and Deprive him of his Constitutional Rights
In addition to the allegation that those persons conspired with Trey Smith to maliciously prosecute McDonough and deprive him of his constitutional rights, they were all also "complaining witnesses" who knowingly and maliciously gave false testimony against McDonough. It is well established that a complaining witness who provides false testimony to initiate or further a malicious prosecution has no immunity from civil liability for malicious prosecution as would such a witness in an action for defamation.
Furthermore, they acted in conspiracy with Trey Smith and DA McNally to cause McDonough's false prosecution in lieu of themselves. Consequently, they are not entitled to absolute immunity in defense of this action. See, White v Frank, 855 F2d 956, 961-962 (2d Circ. 1988); Zahrey, at p. 351, et al. 8. Claims Established by Irrefutable and Overwhelming Evidence
Most, if not all, of the allegations against Trey Smith, DA McNally and the others are now a matter of Supreme Court record related to the protracted wrongful prosecution of McDonough and established by both direct and circumstantial evidence, including the sworn statements and testimony of voters and those responsible for committing the subject election crimes, including McGrath, McInerney, DeFiglio, Renna, and Brown, as well as the patently incredible testimony of John Ogden, 0 'Malley arid Alan Robillard. Most, if not all, of those direct and circumstantial facts will be offered into evidence in U.S. District Court in support of McDonough's claims. As discussed, a lengthy Notice of Claim was provided to assist the County of Rensselaer in understanding the breath and nature of this serious matter and enable it to negotiate a settlement in good faith and/or prepare for litigation in advance of the filing of a complaint. There are many relevant facts in the Notice of Claim, papers and record of the Supreme Court proceeding that, in the interests of expediency, are not repeated herein. However, many other relevant papers and records can be obtained once the criminal case record is un-sealed, including the transcript of the trials. 9. Suffering Caused by Wrongful Prosecution
The devastating adverse affect that the wrongful prosecution has had on McDonough, his wife and their two teenaged children cannot be overstated. They have suffered greatly from January 27, 2010, when Trey Smith unexpectedly told McDonough to his face that he was going to "fuck him" (although he was then not even a suspect), to January 2011 when Trey Smith indicted him based solely on the orchestrated, self-serving false and improper testimony of two purported cooperating witnesses (in return for complete immunity) and a police investigator (all of which also conflicted with common sense and overwhelming evidence of the guilt of those others not being prosecuted, that he ignored while directing the related criminal investigation), and at all times thereafter, including sixteen weeks of two intentionally protracted trials that ended on December 21, 20 12 with his exoneration on-all (74) felony charges. For almost three years, McDonough suffered the tremendous stress, financial hardship, public humiliation and inherent uncertainties of the wrongful prosecution, including the loss of employment and likelihood of imprisonment if wrongly convicted. McDonough also suffered the loss of reputation. He and his wife were required to incur overwhelming legal debt and she was effectively terminated from her long held occupation as a direct consequence of the prosecution. McDonough was also unable to spend waning time with his ailing mother, who passed away during the first trial, while he sat in a courtroom worrying about the toll the wrongful prosecution had and would continue to have on his family, especially his daughter in her senior high school and freshman college years.
In short, for more than two years McDonough's liberty hung in the balance while DA McNally, Trey Smith and others acted in concert to falsely. prosecute, convict and imprison him for the crimes they knew were committed by McInerney and other Democratic candidates and operatives they sought to protect, all of whom stood silently by as an innocent person was prosecuted for the crimes they committed. One of our Founding Fathers aptly said that "justice will not be served until those unaffected are as outraged as those who are." (B. Franklin) McDonough could not have been more adversely affected by the alleged misconduct of DA McNally and the others who participated in his wrongful prosecution but only because he was spared a wrongful conviction and likely imprisonment by a just verdict. SUMMARY OF WRONGFUL PROSECUTION
Most of the following facts are set forth in the Notice of Claim but repeated because relevant to the discussion of the wrongful conduct of Trey Smith and DA Mcblally, A. The Private Investigation Revealed that: Applications Solicited by. Democratic Candidates and Operatives Completed with False Information After Being Signed by Voters, &
AB Released to Democratic Candidates and Operatives were Forged
On or about September 14, 2009 BOE Commissioner Bugbee informed Republican operative Robert Mtrch that certain Applications were filed for the September 15, 2009 Working Families Party ("WFP") primary election on behalf of people he had registered in that party. Mirch then spoke to several of those people who told him that McGrath and others had solicited their signatures on Applications that they did not complete and that they did not vote by AB. After the election, Mirch obtained the Absentee Voter Master List Summary for the City of Troy WFP primary of the AB released by and filed with the BOE, which revealed the following: 2 AB were released to Rick Mason (friend and supporter of Democratic endorsed candidate for Troy City Council, McGrath); 18 AB were released to Thomas Aldrich (friend of city Council Democratic candidate Michael LoPorto and Democratic political operative); 6 AB were released to DeFiglio (Democratic operative); 2 AB were released to McGrath (Democratic endorsed Council candidate); I AB was released to J. Brown (Democratic city Council candidate); 6 AB were released to James Welch (WFP Chairman, Renss. Co.); 8 AB were released to Brandt Caird (WFP operative); and 1 AB was released to McInerney (Democratic operative and City Clerk). Private investigators hired by Mirch obtained affidavits from about thirty-five (35) WFP voters who confirmed that they signed an Application but did not complete it, did not sign any Application and/or did not vote by AB. Although several voters identified DeFiglio or McGrath by name or description as having solicited their Applications, none identified McInerney or any other person who did so by name or identified any person who falsely voted their AB by either name or description.
Otherwise, it was a matter of common knowledge and common sense that Applications had to be completed before filed with the BOE for an AB to be released. Therefore, even in September 2009, it was common sense that whoever sought to solicit AB votes was the most likely one(s) to have completed falsely or forged the Applications required to be filed for their release; i.e. the candidates and/or his political operatives. Most important, there was no evidence to even imply that McDonough was in any way involved in the election crimes. To the contrary, it was already obvious even from the simple private investigation that those who solicited the applications and absentee ballots were involved in the crimes. And, as became clear, the name of all those involved should have been easily obtained and was through the initial NYSP investigation. In fact, within weeks, the- NYSP investigators put a readily provable case together against McInerney, McGrath, Brown, Renna and all the other Democratic operatives and candidates who committed the crime. Furthermore, the - evidence they quickly obtained to prove their guilt was overwhelming and indefensible. However, Trey Smith then took over the NYSP investigation and commenced the fabrication of evidence against McDonough in effort to protect them and wrongfully prosecute him instead. All of the irrefutable record evidence proves McDonough's claim against Trey Smith, DA McNally and the others. B. CivilAction Commenced to Invalidate Forged AB
On September 23, 2009 WFP voter Christian Lambertsen commenced a special proceeding to invalidate numerous AB filed in the WFP primary based upon sixteen (16) of those voter affidavits, the affidavit of Mirch and the BOE Absentee Voter Master List Summary. Those papers showed only that: i. Forty-four (44) ABs were released to candidates McGrath and Brown and their operatives/supporters Rick Mason, Thomas Aldrich, Deliiglio, James Welch, Brandt Caird and McInerney; ~: Only 1 was released to McInerney) 11. At least thirty-five (35) AB were falsely voted and filed with the BOE; and, 111. At least thirty-five (35) Applications were completed falsely after being signed. Most significantly, no particular person was identified as having falsely voted any AB, forged any AB envelope or completed falsely any Application. Again, however, it was general knowledge and a matter of common sense that only those who stood to benefit from the obvious broad-scoped scheme to falsely vote AB were the Democratic candidates and party operatives who also were known to have been involved in a concerted effort "get out the vote" by AB . The record of the civil proceeding, in which Trey Smith directly participated, confirmed that the elections crimes were committed by those Democratic operatives and candidates who "worked the streets" to solicit the absentee ballots. That fact could not have been missed, despite the fact that Brown then committed perjury. Also, Trey Smith worked with McDonough and other employees of the BOE during that time to gain a:firm understanding of the election process, etc.
DA McNally Unlawfully Disqualified Himself from Any Investigation or Prosecution & Had Trey Smith Unlawfully Appointed Special District Attorney
As stated, on September 28, 2009, DA McNally unlawfully disqualified himself from the matter without filing any motion or showing a legal basis for the same. At the same time, he obtained an ultra vires court Order appointing his friend and-fellow Democrat Trey Smith special prosecutor by purported unsigned, un-stamped letter request to the County Court and in chambers off-the-record conference. See, affidavit of DA McNally dated July 7,2011, and his purported September 18, 2009 letter in your possession. Consequently, DA McNally unlawfully disqualified his office from a broad-scoped investigation of what the Trey Smith later publicly called "massive voter fraud' and the prosecution of all persons rather than from "a particular case" (i.e. person) as required by County Law 701. It is also clear from his insufficient purported letter and related court Order that DA McNally did so without showing any actual or substantial likelihood of prejudice to any particular defendant because of a conflict of interest or abuse of confidence, as required by well-established law. See, Legal Brief (provided to County officials in support of McDonough's request that they take proper action to declare Trey Smith's appointment void and prevent his wrongful prosecution). In fact, in his purported letter DA McNally specifically asked for the appointment of Trey Smith "to avoid the appearance of impropriety" (i.e. presumably from the investigation or prosecution of fellow Democratic candidates, officials and/or operatives). Parenthetically, aside from all other matters, he never even attempted to show any sufficient legal basis for his disqualification from the investigation or prosecution of McInerney, McDonough or any other particular person. The related court Order also specifically states that DA McNally "disqualified himself and his staff' for acting in the matter pertaining to the investigation of the Lambertsen action "based on the speculation of politics and the appearance of impropriety ..." See, Order, (Jacon, J.) dated September 28, 2009. Thus, DA McNally effectively had Trey Smith appointed ''for all purposes" in the investigation and prosecution of any person related to the subject broad-scoped "massive voter fraud". Later, even with the benefit of hindsight and said Legal Brief, DA McNally opposed McDonough's motion to disqualify Trey Smith by asserting that he and his staff were disqualified from the matter based on the affidavits of the voters and Mr. Mirch in support of the Lambertsen action. See, DA McNally July 7, 2011 affidavit in your possession, especially paragraph 11. In short, DA McNally therein asserted for the first time that it was his opinion on September 26, 2009 that he was disqualified from investigating or prosecuting any person for any of the subject election crimes because: i. McInerney had worked on his 2007 campaign; ii. DeFiglio had done campaign work with McInerney in the past; 111. He had contact with James Welch during his 2007 campaign; and, IV. He believed that Brandt Caird had worked on his 2007 campaign but did not know whether Tom Aldrich did.
However, DA McNally's retrospective reliance on the Supreme Court (Queens County) 1973 decision in People v. Schrager (74 Misc. 2d 833) is misplaced. Suffice it to say, that case is inapposite for several reasons. Firstly, the court in Schrager found that the District Attorney had shown by good faith application a conflict of interest and potential abuse of a confidence, based on professional and personal relationships, that disqualified his office from prosecuting a fellow prosecutor (the exact factual basis is not reported). Secondly, the Schrager decision pre-dates by a decade the seminal Court of Appeals decisions in Matter of Schumer v. Holtzman and People v. Herr, as well as later higher court cases. All of those decision establish, as Trey Smith correctly stated in opposition to McDonough's motion to disqualify him based on the speculation of politics, appearance of Impropriety and actual prejudice, that "[tjhe courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence ... The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored. (Also see People v. Herr. 86 NY2d 683, a right to counsel case confirming the Schumer thresholds)." Clearly, that law was established for more than 20 years before DA McNally unlawfully disqualified himself from the matter in September 2009. See, Legal Brief. Parenthetically, DA McNally's assertion is also contrary to the fact that in January 2008 he failed to move to disqualify his office from the publicly-reported Grand Jury investigation of the Rensselaer County Democrat Party Chairman who selected him as the Democratic candidate for District Attorney and assisted him in winning election in 2007. Additionally, it is at odds with the fact that he later-failed to disqualify his office from the prosecution of criminal charges against the daughter of the Democratic Party Chairman from whom he intended to, and did, later seek the nomination for candidate fat Supreme Court Justice. In fact, it is well known that the Chairman will effectively choose that nominee for a Supreme Court vacancy this year. Therefore, DA McNally implicitly conceded that he did not have a legal basis for his disqualification on September 28, 2009. Even still, he failed to show any conflict of interest or abuse of confidence that would have actually or likely prejudiced any person by his investigation or prosecution of any matter (although any such retrospective justification still would not have cured the unlawful appointment in 2009). In any case, he did not on September 28, 2009 establish a legal basis for his disqualification. For the reasons discussed in the Legal Brief, DA McNally did not establish any basis for his disqualification from the prosecution of any particular person or defined matter. Therefore, he could not legally have been disqualified from such a patently broad-scoped investigation or prosecution of all guilty persons. In short, DA McNally failed on September 28, 2009 to provide any basis for his disqualification from any particular case. Later, even after the unlawful nature of his disqualification was exposed and discussed at length with county officials and the Court, DA McNally opposed the disqualification of the Trey Smith and dismissal of the indictment against McDonough, despite knowing that all of his actions and any conviction would ultimately be declared null and void because the he was acting outside the law pursuant to an invalid court Order. There can be no serious doubt about the fact that DA McNally and Trey Smith knew the
goals of McDonough's wrongful prosecution would for all practical purposes be satisfied with any conviction even if later reversed because of the unlawful disqualification DA McNally and appointment of Trey Smith. By then, the case would have been all but forgotten and no one else would ever have been prosecuted. It is also obvious from their otherwise inexplicable actions that neither DA McNally nor Trey Smith expected McDonough to thwart their plan by bringing about the intervention of the FBI and a NYSP Sr. Investigator that forced the prosecution and conviction of Mclnerney (although jurisdictionally defective and invalid), J Brown (ditto), DeFiglio and Renna, who along with others never prosecuted, committed the subject election crimes, including those for which McDonough was falsely prosecuted in lieu of them. To clarify the simple point, DA McNally's unlawful self-disqualification was merely an essential step in the wrongful prosecution of McDonough. That act is not alone is not the basis of McDonough's claim. It is that act, together with the fabrication and suppression of evidence and the other clearly administrative, investigatory, extra-. judicial and illicit conspiratorial acts of Trey Smith, DA McNally and the others to initiate and continue the wrongful prosecution of an innocent person in lieu of -those guilty of the election crimes that provides the basis for McDonough's claims .. D. Investigation Directed, Supervised and Conducted by Trey Smith Revealed: Overwhelming Evidence of Guilt of K. McGrath, W. McInerney, J. Brown, A. DeFiglio, and other Democratic Candidates and Operatives; &, Tire Completion of ApplicationsPrior to Filing with the BOE was Integral to the Forging of AB for Democratic Candidates
Thereafter, a criminal investigation into the elections crimes was directed, supervised and conducted by Trey Smith with assistance of the NYSP. That investigation resulted in the affidavits of more than fifty (50) voters and witnesses by November 2009 that irrefutably established all the subject elections crimes were "street" crimes committed by McGrath, McInerney, Brown, DeFiglio, and others. There was no evidence even implicating McDonough in any criminal conduct. Again, a few voters identified McGrath and DeFiglio by name as having solicited their Applications and AB that were later completed falsely, forged andlor voted without permission. More importantly, DeFiglio specifically identified McInerney and Brown by name as being involved in those crimes. A number of voters also accurately identified those two culprits by description although their testimony was never confirmed through proper investigation. In sum, the overwhelming testimonial and documentary evidence obtained by November 2009 proved that all of the elections crimes were committed on the streets by identified and/or readily identifiable Democratic candidates and political operatives. Furthermore, that fact could not have been missed in November 2009 and is now a matter of irrefutable trial evidence. Also, Trey Smith and the NYSP possessed the elections documents that corroborated that evidence in November 2009 and at all times thereafter.
In fact, DeFiglio admitted in a sworn written statement on or about October 2009 that he and other political operatives and candidates were involved in the solicitation and false voting of the AB of public housing residents in September 2009 and the past 25 years. He and NYSP Investigator Ogden also testified at trial that no attempt was made by the NYSP or Trey Smith to obtain any specific evidence from him about those crimes or the identity of those Democratic operatives and/or candidates who had committed them in 2009 and past years when he gave his statement or thereafter although he was ready, willing and able to provide details about the same. The criminal investigation also revealed by November 2009 that the completion of Applications and AB envelopes with false information and/or forged signatures was integral to their false voting of ABs. At trial, DeFiglio testified that when he gave his written statement in October 2009 and again 2010 he admitted that fact and told the NYSP and Trey Smith that their prosecution theory the Applications were purposely left blank when voter signatures were solicited so they could be completed falsely by McDonough in the BOE simply made no sense. At the same time he admitted that the Applications would be completed falsely and/or forged by the political operatives and candidates prior to filing with the BOE so that the AB would be released and then either returned to the voters or forged. Still, Trey Smith ignored the overwhelming evidence of the guilt of all the Democratic operatives and candidates and, it is alleged, acted in concert with DA McNally and/or others to fabricate evidence and wrongfully scapegoat prosecute McDonough to protect from prosecution McGrath, Mclnerney, Brown and/or other Democratic operatives guilty of all the elections crimes committed in 2009 and prior years, the identities of whom were known or should have been known through proper investigative efforts. Trey Smith could not suppress the overwhelming evidence against Mcinerney, Brown, DeFiglio, Renna and others or prosecute McDonough for the crimes they committed, i.e. the forging of voter signatures and falsely voting of absentee ballots. So, he simply ignored it, falsely told the supervisory NYSP investigator that they could not be prosecuted and boldly embarked on the fabrication and suppression of evidence to scapegoat prosecute McDonough for falsely alleged acts that are not even crimes as a matter of law, i.e. the entry of false information on applications after the voters had signed them or had their signatures forged by those others. The audacity of his actions reflects the existence of the conspiracy and the reason for its criminality, one person will likely not commit a bold crime alone. The facts clearly reflect that Trey Smith found an all to willing co-conspirator in McGrath who received complete immunity for crimes that could not but be readily proven against him purportedly before any proffer of information, despite the fact that he denied committing any crimes and essentially claimed that the victimized voters were lairs.
Indictment of McDonough Based on False Incrimination of K. McGrath in Return for Immunity; False Handwriting Opinion of NYSP Inv. J. Ogden and False Incrimination of K. 0 'Malley for Immunity from Purported Perjury
As discussed at length in the Notice of Claim, Trey Smith obtained an indictment based solely on: (1) the false incrimination of McGrath that McDonough wrote false excuses on two Applications that McGrath filed for his own benefit, (2) the false and improper "opinion" of Ogden that the delivery agent names and/or excuses on all the questioned Applications were writing in the same handwriting and in a pattern showing they were written by the same person; and, (3) 0 'Malley's false and contradictory testimony that "his boss" made him write false excuses in certain Applications after he was threatened with prosecution for purported election crimes and perjury and Trey Smith called him at his home the night before he returned to the Grand Jury to change his testimony. F. Grand Jury Presentation When Insufficient Evidence for Indictment
In fact, the irrefutable trial evidence. and other record facts prove that when Trey Smith began presenting a case against McDonough to the Grand Jury it was based solely on: (1) the patently insufficient, incredible and uncorroborated testimony of McGrath in return for complete immunity for crimes readily provable by overwhelming testimonial and documentary evidence - all of which he brazenly completely contradicted, and (2) the patently insufficient, incredible and improper testimony ofNYSP Investigator Ogden that the handwritten excuses and delivery agent names on all the questioned Applications appeared to be written in the same handwriting and reflect a "pattern" evidencing one author. Furthermore, all of those allegations were contrary to the facts that were or should have been obtained by Trey Smith and Investigator Ogden from DeFigiio, other witnesses and the BOE documents. It was months later, and only after McDonough gave notice of his intent to testify before the Grand Jury (which fact was apparently "leaked" by Trey Smith and publicly reported), that Trey Smith orchestrated 0 'Malley's false incriminations against McDonough, purportedly in return for immunity from prosecution for forgery as a "key" player in the subject elections crimes and several counts of perjury before the Grand Jury. See, discussion in Notice of Claim. G. McInerney's Threat to "Take Everyone Down" and Relationship DA McNally
Mclnerney's conduct and relationship with DA McNally is of particular concern because, as stated, soon after the elections crimes were discovered (within days of their commission) he threatened to "take everyone down" with him if prosecuted. H. Other Salient Fact Discovered at Trial
Lastly, as stated, solely because of the two trials, many salient facts previously known only to DA McNally, McInerney and other Democratic candidates and/or operatives who committed the subject elections crimes were elicited on cross-examination. Most
significant among them are the above stated facts concerning McInerney, his close personal relationship with DA McNally, the advice that DA McNally gave to McInerney concerning at least his legal representation, and the admissions of McInerney and Brown that Trey Smith told their attorneys in 2009 and thereafter that they would not be prosecuted for the subject election crimes. McInerney also admitted that after he was terminated from his NYS employment he worked hard obtaining AB votes for its candidates in 2007 and in return for, among other things, obtaining AB in support of the successful elections of DA McNally and a majority of the Troy Council, he was awarded the most coveted patronage appointment of Troy City Clerk. He also testified in substance that he was forced to commit the subject election crimes in effort to keep his job by ensuring that the Democrats maintained a majority of the City Council. Thus, substantial testimonial and documentary evidence establishes McDonough's claims and preclude the application of immunity for any defendant. Thank you for your courtesy and consideration. Respectfully, PREMO LAW FIRM, PLLC
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