Affirmation of BDP

8/7/2019 Affirmation of BDP

1/65

STATE OF NEW YORK SUPREME COURT COUNTY OF RENSSELAER _______________________________________________________________________ _

PEOPLE OF THE STATE OF NEW YORK Affirmation in Support of Motionsfor Disqualification of Special

- against - District Attorney, Dismissal of Indictment, Release of Grand Jury

EDWARD McDONOUGH, and, Minutes, Appointment of SpecialMICHAEL LoPORTO, District Attorney and Other Relief.

Defendants._______________________________________________________________________ _

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

RELIEF REQUESTED

1. I represent defendant Edward McDonough, one of only two (2)publicly disclosed targets of a presentation by Special DistrictAttorney, Y. Curtis Smith, Esq. (SDA) before a Rensselaer Co.Supreme Court Grand Jury (GJ) impaneled by Patrick J.McGrath, S.C.J., who are now indicted regarding this matter.

2. This affirmation is submitted in support of defendantMcDonoughs Motions for Orders of the Court: (1) Disqualifyingthe SDA upon the basis of an actual conflict of interests as well asthe speculation of politics and appearance of impropriety that havesubstantially prejudiced his rights to due process and a fair trial aswell as the fact that the conduct of the SDA in the investigationand prosecution of the matter will be a material issue at trial; (2)Dismissing the Indictment upon the basis that the misconduct of the SDA in the investigation and prosecution of the matter hassubstantially impaired his rights to due process and a fair trial; (3)Dismissing the Indictment on the basis that the actual or impliedbias and prejudice of the GJ jurors and/or panel has deprived himof due process; (4) Directing the Release of the GJ Minutes; (5)Appointing a Special District Attorney with expanded authority toinvestigate the matter and past similar incidents of voter fraudand/or forgery; and, granting such further or other relief as theCourt deems just and proper. In the alternative, the defendantrequests that the Court conduct a hearing as required or appropriate

1


2/65

in the determination of any motion, upon sufficient notice toreasonably allow for the production of witnesses and other evidence.

3. This affirmation is made upon information and belief, the sources

and grounds of which are the papers and documents related to thecase disclosed by the SDA, including witness statements; thesupporting affidavit of McDonough; documents obtained from theRensselaer County Board of Elections (BOE); the paperscontained within the file maintained regarding this matter; andpersonal conversations had with McDonough, the SDA and/or others; and upon personal knowledge, where so stated.

NATURE OF CASE

4. This case concerns the actions of certain Democrat candidates for Troy City Council and their Democrat and Working Families Party

(WFP) workers who allegedly targeted public housing voters andfraudulently obtained and/or falsely completed their applicationsfor absentee ballots (AAB) and/or later forged and/or filed their forged absentee ballots (AB). The alleged crimes were committedfor the purpose of casting forged AB votes for said Democratcandidates in the September 2009 WFP primary election.Unfortunately, the prosecution appears to be more about thepersonal interests of the SDA and politics than personalresponsibility and the interests of criminal justice.

INTRODUCTION AND SUMMARY

5. After purportedly conducting a criminal investigation for over one(1) year, Democrat Special District Attorney Trey Smith (SDA)recently obtained an Indictment against only Edward McDonough,the Democrat Rensselaer County Board of Elections (BOE)Commissioner, and, Michael LoPorto, a Democrat Troy CityCouncil incumbent, for what he publicly called a case of massivefraud perpetrated on the citizens of Rensselaer County . In hispress statement, the SDA also declared that the matter wasclouded when the investigation began but a good measure of clarity has been brought to the facts by the hard work,diligence and patience of many .

6. It is the height of irony that the true facts, unclouded by thepretense of words, clearly show that no proper investigation hasbeen conducted but rather that the SDA worked hard and withpatient diligently to prosecute only two chosen political scapegoatswhile those Democrat incumbents, party workers and/or otherswho perpetrated the alleged massive fraud are allowed to remain

2


3/65

outside the acceptance or judicial imposition of criminalresponsibility.

7. In truth, McDonough merely assisted certain Democrat candidatesand party workers in filing ostensibly valid AAB and obtaining AB

to be delivered to voters. He never knew that any informationentered on any AAB was false or that any AB filed by anyone wasforged. He did not participate in any election campaign. He didnot obtain, forge or file any AAB or AB, knowingly possess anyforged document or have a personal interest in any of the primaryelections the BOE was administering at the time.

8. Nonetheless, the SDA obtained the Indictment against McDonoughalleging that he forged almost forty (38) AAB, most of which henever handled, and knowingly possessed more than thirty (36)forged AAB/AB. LoPorto, who obtained certain of the subject

AAB and is seen by many as a controversial and marginalizedfigure in the Rensselaer County Democrat Party, is joined in theIndictment, albeit improperly.

9. Most significantly, the SDA recently implicitly admitted to theCourt that no other Democrat incumbent or party worker implicated by the substantial testimonial and documentaryevidence as having been involved in numerous acts of allegedvoter fraud and forgery of AAB/AB, will be prosecuted, i.e.:William McInerney, the Democrat Partys most diligent andvalued worker who gave the warning that he will not go downalone if prosecuted and is a friend of the District Attorney, whomhe helped win election and has had some involvement with thecase after being disqualified; Kevin McGrath, the Troy CityCouncil incumbent who was given the benefit of a CooperationAgreement in return for a statement incriminating McDonough andexonerating himself in contradiction of the substantial irrefutableevidence and is the brother of a well-known, highly respectedDemocrat Rensselaer County Supreme Court Justice before whomthe SDA has and will likely practice; John Brown, a Troy CityCouncil incumbent who happens to be a Democrat Party stalwartpositioned for future office and political leadership; ThomasAldrich, Anthony DeFiglio, Brant Caird and James Welch, theDemocrat and WFP workers who assisted the Democrat candidatesin obtaining the AAB; and Sara Couch, the WFP activist whodelivered certain forged AB to the BOE.

10. In short, the relevant facts and irrefutable evidence establish thatthe SDA has apparently for conflicting personal interests andpolitical reasons brought this prosecution against McDonough (and

3


4/65

LoPorto) instead of the Democrat Troy Council incumbents and/or party workers implicated by substantial credible evidence in thealleged crimes.

11. Consequently, what should have been a very simple investigation

and prosecution of those responsible for the alleged crimes hasbecome perhaps the most blatant and complex case of politicalprosecutions in recent Rensselaer County history.

12. In that regard, although it takes but few words to tell the truth, ittakes much effort to unmask the facts when obfuscated bypretense. Thus, despite the SDAs oft repeated spontaneousdeclarations: I have no political ambition, I went where theevidence took me and I will treat McDonough fairly , it will beseen that the facts belie those words.

13. It is within this context, and, with the singular purpose of defending McDonough against a baseless political prosecution thatthe facts must be discussed at length. It must also be noted that theidentities of those allegedly involved in the matter are discussed asnecessary because they have been previously publicly disclosedthrough extensive prosecution biased media coverage caused byothers before and after Indictment.

14. It is upon those facts that McDonough moves for removal of theSDA, dismissal of the Indictment and appointment of a specialprosecutor with authority to properly investigate the subject andpast similar incidents of massive voter fraud.

RELATED FACTS

I. Private Investigation & Action to Void AB Cast for Democrats:Substantial Testimonial and Documentary Evidence Incriminating DemocratIncumbents and Party Workers.

A. Lambertsen Petition Alleging Fraud re AB Cast for Democrats15. On September 23, 2009, by Petition and Order to Show Cause,

WFP member Christian Lambertsen brought action to prohibit thecounting of certain AB purportedly cast in the WFP September 15,2009 primary for several Democrat candidates for The City of Troy Council, including now incumbents Kevin McGrath , JohnF. Brown , Clement Campana and Michael LoPorto . A copy of the Order to Show Cause is attached as Exhibit 1.

16. That action was based on the allegations of voter fraud in theLambertsen Petition and supporting affidavit of Robert Mirch,

4


5/65

copies of which are attached as Exhibit 2 and Exhibit 3,respectively.

17. Lambertsen alleged that there are substantial irregularities in

the way [the AB for the WFP primary] were obtained and

processed and may have been active fraud in many of them.See, Exhibit 2.

18. The BOE Absentee Voter Master List Summary attached to thePetition (see, Exhibit 1) shows that certain AB were ostensiblyissued to the following persons:

(a) Thomas Aldrich : 19 (e) Brandt Caird : 8

(b) William McInerney : 1 (f) John F. Brown : 1(c) Anthony DeFiglio : 6 (g) Kevin McGrath : 2(d) James Welch : 7 (h) Rick Mason 2

(See, Exhibit 3, 3-10, its Exh. D). (i) Mike Leonard 2 19. That BOE Absentee voter summary also shows that for that WFP

primary the BOE issued sixty-nine (69) AB and sixty-three (63)were returned.

20. Most significantly, all of the returned AB in question werepurportedly cast for the named Democrat candidates, includingMcGrath, Brown, Campana and LoPorto .

B. Mirch Affidavit Alleging Fraud by Persons Obtaining AB for Democrats21. Mirch alleged that he became aware of unusual activity relating

to [AAB] for the primary [and] discovered a substantial number of fraudulent [AB] that were purportedly cast for the namedDemocrat candidates. (See, Exhibit 3, paragraph 2)

22. Mirch further alleged that the attached affidavits of sixteen (16)purported absentee voters showed that there was fraud committedby the people who obtained their AAB/AB. (See, Exhibit 3,paragraphs 3-10)

C. Private Investigation and Evidence of Voter Fraud and Forgery23. In fact, a private investigation funded by Mirch resulted in the

affidavits of about fifty (50) WFP voters who alleged, in substance,that: (1) they were defrauded into believing they had voted bysimply signing a document presented; (2) they signed incompleteAAB upon which certain information (often false) was later entered by someone unknown; and/or (3) they did not obtain, signor file an AB or AB envelope.

5


6/65


7/65

32. The import of that political struggle cannot be ignored in theinvestigation and prosecution of this matter because it givescontext to the actions and motives of the Democrat incumbents andDemocrat and WFP workers identified by the defrauded absenteevoters as being involved in the alleged criminal activity.

33. In fact, it is almost incomprehensible that any investigation or prosecution of this matter could be conducted in ignorance of theWFP struggle that led to the subject criminal conduct and relatedactions and motives of those involved. Consequently, that politicalstruggle gives some contextual relevance to certain of the actionsand motives of the SDA, disqualified District Attorney RichardMcNally and others, as discussed herein.

II. Supreme Court Hearing on Lambertsen Petition:Reveals Substantial Testimonial and Documentary Evidence Incriminating

Democrat Incumbents and Party Workers.

A. Testimonial and Documentary Evidence of Fraud/Forgery Again ImplicatesDemocrat Incumbents and/or Party Workers34. On October 1, 2009, the Supreme Court held a hearing on the

Lambertsen Petition at which nine (9) WFP voters testified, i.e. B.Suozzo, B. Ward, J. Acevedo, Anna Berrios, E. Montalvo, LloydNewell, J. Boomhower, Richard Guslaw, and Karen Guslaw. TheSDA and McDonough also attended the hearing.

35. Those voters essentially testified that they were approached bycertain of the named Democratic incumbents/party workers andtold that they could vote merely by signing a document presented;that they did not sign, complete and/or provide information onAAB that is false; and/or that they did not obtain, sign or cast anAB. Their testimony is summarized in Schedule A .

36. Brown , Democrat worker Richard Mason and BOE RepublicanCommissioner, Lawrence Bugbee also testified at the hearing.

37. Notably, Masons testimony is materially contradictory to thestatements of voters Jennifer Taylor and Thomas Dickinson aswell as McGrath (see, Schedules A, B, C and 157-203 below).A copy of Masons testimony is attached as Exhibit 5.

38. In substance, Mason testified that voters Taylor and Dickinsoncompleted and signed their AAB in front of him and McGrath .However, in their statements those voters said that they did notsign their purported AB or complete their AAB that contained falseinformation and signatures. Furthermore, as discussed below,

7


8/65

about six (6) months later McGrath gave a statement thatmaterially contradicts Masons testimony and the votersstatements and in which he alleged that McDonough knowinglyentered false information on voter Dickinsons AAB.

39. In any case, it is clear that Mason had no reason to testify as he didexcept to protect himself and McGrath, which, of course, he wouldnot have done or had any motive to do if McGraths later statementincriminating McDonough was truthful.

40. The affidavits of thirty-five (35) purported WFP absenteevoters , including those who testified, were also admitted intoevidence and irrefutably established that certain Democratincumbents and/or Democrat and/or WFP workers asked them tosign incomplete AAB that were later filled-out by others, oftenfalsely, and that they never obtained, signed or filed AB or cast a

vote.41. The purported AAB, AB and AB envelopes of those voters were

also admitted into evidence and corroborated their testimonialallegations of voter fraud and forgery.

B. No Evidence Incriminating McDonough or Any Other BOE Employee42. None of the testimonial or documentary evidence implicated

McDonough or any other BOE employee in the alleged fraud or forgery of AAB, AB or AB envelopes. Again, neither didLambertsen, Mirch or Bugbee or any other person.

C. Supreme Court Decision and Order/Judgment: Voter Fraud and Forgery43. In its Decision and Order/Judgment, the Supreme Court noted that

[t]he essence of the petition is that the challenged [AAB and AB]were fraudulently procured, without the consent of the named voter and voided thirty-three (33) of the AB based upon theaffidavits/testimony of the voters challenging their validity,including Brian Suozzo, Jesenia Acevedo, Jessica Boomhower andRichard, and Karen Gushlaw, who also disputed the validity of theAAB and/or signatures on the AB envelope signature. The Courtalso accepted the credibility of the affidavits of six (6) votersdisputing the validity of the AAB submitted on their behalf for which there was no AB, including Marc Welch.

44. However, the Court counted the AB of Anna Berrios because shetestified that it was her signature on her AB and AB envelope,even though she did not complete the AAB and it contained somefalse information. Importantly, the Supreme Court erred on the

8


9/65

side of enfranchisement in ordering the AB vote of Anna Berrioscounted although the evidence proved that someone else hadentered false information on her AAB.

45. In essence, even if McDonough ever entered information

purportedly obtained from prospective absentee voters on their signed and ostensibly valid but incomplete AAB (which resultedonly in the issuance of an AB that may or may not be later completed and filed by the voter) he merely erred on the side of voter enfranchisement as did the Supreme Court in ordering theBerrios vote counted.

46. In summary , the irrefutable testimonial and documentaryevidence showed that most of the voters in question weredefrauded into thinking that they could vote simply by signing adocument presented and/or that their purported AAB, AB and/or

AB envelopes contained false information and/or forgedsignatures.

47. Again, that evidence implicates certain of the named Democratincumbents and other party workers in the commission of suchcriminal conduct and they should therefore be the targets of thiscriminal investigation and prosecution.

DISQUALIFICATION OF DISTRICT ATTORNEY:THE SPECULATION OF POLITICS AND APPEARANCE OF IMPROPRIETY.

48. Soon after the Lambertsen Petition was filed, Democrat DistrictAttorney Richard McNally disqualified himself and his staff from the matter and, by ex parte application to the County Courtrequested appointment of a Special District Attorney. It appearsthat he disqualified himself because of his affiliation with theDemocrat Party and/or person(s) allegedly involved in the voter fraud/forgery.

49. Subsequently, by Order dated September 28, 2009, the CountyCourt determined that the disqualification of the District Attorneyand his staff from acting in this case based on the speculation of politics and the appearance of impropriety was appropriate andordered the appointment of the SDA for all purposes in thismatter

50. It is not yet known whether the District Attorney properlyabdicated his important constitutional and statutory duties but,without waiving any challenge, a presumption of regularity ispresently made in view of the County Court Order.

9


10/65

District Attorneys Involvement with Case after Disqualification51. Nonetheless, as discussed below, it is known that DA McNally and

his staff had some involvement in the matter after disqualification,including: (1) taking into custody certain AAB/AB; (2) having

personal conversations with the SDA; (3) obtaining copies of certain reports from the NYSP forensics laboratory concerning itsanalysis of DNA samples; and (4) having conversations withMcDonough and McInerney. It is also likely that the DA and/or his staff: (1) provided preliminary instructions to the GJ beforewhich this matter was presented; and (2) presented other casesbefore that same GJ.

52. It is respectfully submitted that the involvement presents seriousethical issues and legal impediments to the prosecution of thematter that require disqualification of the SDA and dismissal of the

Indictment based upon the prejudicial actual conflict of interests,the speculation of politics and the appearance of impropriety.

INVESTIGATION BY SPECIAL DISTRICT ATTORNEY

I. Substantial Testimonial and Documentary Evidence Incriminating DemocratIncumbents and Party Workers.

A. Voluntary Statements from WFP Workers/Potential Defendants and Statement

from Couch in Return for Immunity from Prosecution53. After the Lambertsen hearing, the SDA purportedly began an

investigation with the assistance and formidable resources of theNew York State Police (NYSP).

54. The NYSP investigation Lead Logs and Lead Log summariesshow that they initially sought to interview the disenfranchisedvoters, Democrat incumbents, Democrat and WFP workers, Mirch,Bugbee and then McDonough. A copy of the Lead Logs and LeadLog summaries are attached as Exhibit 6.

All Democrat Incumbents Refused NYSP Interview55. As reflected in the NYSP Lead Logs, however, all of the Democrat

incumbents retained counsel and refused to be interviewed by theNYSP at that time.

Democrat and WFP Workers Agreed to NYSP Interview and Gave Statements56. In addition to Mirch and Bugbee, Democrat party workers

DeFiglio and Aldrich as well as WFP Vice-Chair J. Brant Cairdall agreed to be interviewed and give written statements to the

10


11/65

NYSP without counsel. Welch refused to be interviewed unlessgiven immunity from prosecution.

57. In sum, DeFiglio incriminated himself, McInerney and un-namedothers by general admissions of criminality (apparently not being

asked to give more specific facts) while Aldrich and Caird deniedany personal involvement, responsibility or knowledge of anyillegal activity or specific evidentiary fact and incriminated certainDemocrat incumbents/workers by implication, as discussed below.WFP organizer Sara Couch retained counsel and later agreed to beinterviewed and give a written statement but only after the SDAgave her immunity from prosecution. She similarly denied allpersonal involvement, responsibility or knowledge of any illegalactivity or specific evidentiary fact but incriminated Brown andLoPorto with allegations of implied admission by hearsaystatements and general fact, as discussed below. Otherwise, they

all mentioned several hearsay statements made by McDonough for the specious implication of guilt.

B. Mirch Deposition Incriminating Democrat and WFP Workers58. In his October 21, 2009 affidavit, Mirch again essentially stated

that he became suspicious of voter fraud when about thirty-four (34) AB for WFP voters were released the day before election as aresult of Democrat activity and a private investigation revealed thatmany voters did not obtain, complete or cast an AB. A copy of hisaffidavit is attached as Exhibit 7.

C. Bugbee Deposition Incriminating Democrat and WFP Workers59. In his October 22, 2009 written deposition, Bugbee reiterated that

the issue of voter fraud arose when it was learned that about thirty-four (34) AB for the WFP primary were released as a result of Democrat activity the day before election. A copy of his affidavitis attached as Exhibit 8.

60. Notably, Bugbee also informed the SDA that [r]egarding the[BOE] policy and protocol for the receipt of an [AB] that isretrieved in person from the [BOE], a person who is designated onthe application is the responsible party for that [AB]. However,that person may designate another person to actually retrieve the[AB] from the [BOE] and there is no mechanism in place for theaccountability of that [AB] or who the actual person that the [AB]is turned over to. On the day prior to the election I would estimatethat at least one hundred [100] people were in and out of the[BOE] for various purposes, one of which was the retrieval of [AB] .

11


12/65

61. Bugbees statement merely reflects the reality of political partyvoter activism, i.e. candidates and/or party workers often get outthe vote by obtaining, delivering and filing for prospective voterstheir registration forms, AAB, AB and AB envelopes.

62. Yet again, neither Mirch nor Bugbee incriminated or implicatedMcDonough in any fraud or forgery in obtaining, completing or signing AAB, AB or AB envelopes although it is clear from their statements that his activities at the BOE were discussed.

63. In fact, Bugbee has informed the SDA that based upon hisexperience with the election process and knowledge of the bi-partisan policies of the BOE concerning the filing and issuance of AAB and AB, he has no basis in fact or opinion to suspect thatMcDonough was involved in the alleged voter fraud or forgery.

D. Couch Deposition Incriminating Brown and LoPorto64. In her October 22, 2009 affidavit, Couch , among other things,

stated that on primary day LoPorto furtively gave her a foldednewspaper covering about thirty (30) AB which she took to theBOE for him.

65. After giving her self-exculpatory explanation for the possession of

those forged AB, Couch added that she took them to the BOE andhanded them to McDonough thinking it will be handled properly . A copy of her deposition is attached as Exhibit 9.

66. Couch also discussed the meeting that she , Welch , Caird , Brownand McDonough had at LoPortos restaurant after the allegedvoter fraud was publicized, including: (a) Browns incriminatorystatement that he obtained Welchs permission to list him as thedesignated person to receive some of the forged AB and hisrequest that the WFP issue a press release blaming Mirch for thevoter fraud controversy; and (b) McDonoughs alleged commentsabout the adverse political effect that the matter would have on hisoffice and his desire that the meeting not be recorded.

67. It must be noted that the comments allegedly made by McDonoughat the LoPorto meeting are at best ambiguous hearsay statementsthat, as a matter of law, cannot be considered as admissions of guilt, and, as a matter of fact, they are not. McDonough has never denied making those statements, at least in substance. Still, it isbelieved that the SDA has and/or will interpret those innocuouscomments as admissions of guilt.

12


13/65

E. DeFiglios Affidavit Admitting Voter Fraud and Forgery and IncriminatingMcInerney in Illegal Conduct68. In his November 6, 2009 written statement DeFiglio admitted that

he obtained AAB by defrauding voters and alleged thatMcInerney was deeply involved in the alleged absentee voter

fraud/forgery. In short, he stated that as an employee of the City of Troy Housing Authority he assisted McInerney in fraudulentlyobtaining AAB from public housing voters who were targetedbecause they are a lot less likely to ask questions later and thathe had been involved in such outrageous conduct for decades withother unnamed party members. A copy of his affidavit is attachedas Exhibit 10.

69. Specifically, DeFiglio stated that on about late August/earlySeptember 2009, he, McInerney and another went to GriswoldHeights public housing and [w]hen we obtained the [AAB] we

just had the residents sign for [an AB] and we told them that wewould take care of getting them [an AB]. On that date and inprevious elections that I have worked on it was commonknowledge that these people were never going to receive an [AB] .This is a political strategy to get control of a third party line. Bill took all [AAB] that we obtained and I dont know what happened to them after he left . I did not handle the [AAB] once they weresigned. Bill McInerney took all the [AAB], I was aware that the[AB] would never be received by the persons who we had obtained signatures from on the [AAB] but this [is] an ongoing scheme and it occurs on both sides of the aisle. The people whoare targeted live in low income housing and there is a sense that they are a lot less likely to ask any questions at a later date .

70. DeFiglio concluded: I think that Bill McInerney just got [too] greedy. Bill has a lot to lose if the Democrat majority is lost inthe Troy City council. I understand that [my conduct] regarding [AB] is at the most illegal but since my involvement in politics began [25 years ago] it has been the way things weredone

71. It is expected that DeFiglio made the specious assertion that there

is no possible way that [McDonough] could not have known what was happening because he knew that the SDA sought to prosecuteMcDonough. Parenthetically, McDonough has been the BOEDemocrat Commissioner for only the past eight (8) years and waspreceded by Rensselaer County Democrat Party Chairman ThomasWade. Therefore, it is expected that Mr. Wade, Bugbee and other past and present Democrat and Republican employees of the BOEwill refute his supposition that they were involved in any AAB/AB

13


14/65

fraud and forgery committed by candidates and/or their supporters/party workers at anytime.

72. Ironically, DeFiglio correctly identifies the criminal activity that isa matter of significant public interest and should be the focus of

this criminal, i.e. the defrauding of targeted public housing votersand related forgery. Although it appears the SDA misses thatpoint, it is unlikely that those defrauded voters or the public will.

F. Caird Affidavit Incriminating Brown73. In his November 11, 2009 written statement, WFP Vice-Chair

Caird denied obtaining any fraudulent AAB or AB and indiscussing the LoPorto meeting said, among other things, that:[ Couch ] asked several questions pointed to [ Brown ]. She did this because she knew that [Brown] had asked for permission touse [Welchs] and his name on [AB] It was apparent [ ] that

[Brown] either participated in the wrong doing or at least had knowledge of what had occurred from his demeanor and lack of responses to [her] questions . When the meeting was winding down [ McDonough ] asked [him] what [he] would do facing 18counts of forgery. [He] responded that [he] would tell the truth.A copy if his statement is attached as Exhibit 11.

G. Aldrich Statement Incriminating Candidates and Party Workers74. In his November 13, 2009 affidavit, Aldrich stated he never

obtained any of the nineteen (19) AB purportedly released to himand did not know who filed them. A copy of his statement isattached as Exhibit 12.

75. Also, he stated that: on September 12, 2009 he met Democratcandidates LoPorto , Campana and Brown , as well as partyworkers McInerney , DeFiglio , Robert Martiniano and DanielBrown at the Griswold Heights public housing in Troy; McInerneydirected that he go with Daniel Brown to the Corliss Park publichousing to obtain AAB from prospective WFP voters where theyobtained about five (5) AAB; but, he did not complete any AAB or possess any AB issued.

76. In summary , the very nature of the alleged criminal activity, thetestimony of the voters and the affidavits of those party workersshow that certain Democrat incumbents and/or party workers whoobtained and/or filed the purported AAB and AB were allegedlyinvolved in defrauding the voters they targeted as friendly and/or later entered false information and/or signatures on thosedocuments.

14


15/65

77. Therefore, all of the relevant credible evidence should have takenthe SDA to the investigation and prosecution of those persons of interest.

78. That fact is dictated by logic, common sense and pragmatic reality.

It could not be missed by even a cursory review of the credibletestimonial or documentary evidence obtained by Mirch before theLambertsen action or the SDA soon after appointment.

II. Matter of Significant Public Interest: Voter Fraud and Ballot Forgery

79. It is obvious that the subject voter fraud and forgery of AB/AAB isa matter of significant public interest. Therefore, public policy, theintegrity of the elective process and the interests of justice requirethat such matters be properly investigated and that the guilty beheld responsible for their acts.

80. In that regard, the testimonial and documentary evidence relativeto the Lambertsen action clearly implicates the named Democratincumbents and Democrat and/or WFP workers in the allegedcommission of fraud and/or forgery by obtaining, completingand/or signing the purported AAB and AB of numerous WFPvoters who never cast an absentee vote in the subject primaryelection.

81. Therefore, the evidence as well as public policy, the integrity of the elective process and the interests of justice dictate that theinvestigation and prosecution of this matter be properly conductedby a qualified prosecutor who has no conflict of personal or political interests and seeks to hold responsible only those peoplewho defrauded voters to obtain their AAB and/or forged their AABand AB { perpetrated massive fraud ).

III. The Prosecution Function and Duty of Impartial Fairness and to Do Justice

82. Those same principles dictate that any person accused of committing the subject voter fraud and/or forgery be fairly treatedin any investigation and/or prosecution. It is well established thatthe prosecutors significant constitutional and statutory duty is notto indict or convict, but to do justice and prosecute cases withoutthe prejudicial effect of any conflicting personal interest or political influence.

83. The integrity of the criminal justice system and the publics trust in

it are particularly at risk in cases of alleged criminal conductrelated to political party activism because District Attorneys cannot

15


16/65

completely detach themselves from the political process uponwhich they rely for their candidacy and election. That is obviouslythe reason that District Attorney Richard McNally abdicated hissignificant constitutional and statutory duties and disqualifiedhimself and his staff from this case.

84. Unfortunately, the SDA has failed to appreciate these principlesand violated his duty by prosecuting McDonough as discussedinstead of those responsible for the alleged voter fraud, solely tofurther his conflicting personal and/or political interests.

85. Therefore, the SDA should and must be disqualified from thismatter because of expressed conflicting personal interests and thespeculation of politics that present, at the very least, anunavoidable and inappropriate appearance of impropriety.

THE FACTS SHOW OUTRAGEOUS CONDUCT IN

INVESTIGATION AND PROSECUTION OF CASE,ACTUAL CONFLICT OF INTERESTS,THE SPECULATION OF POLITICS,

AND THE APPEARANCE OF IMPROPRIETYTHAT WILL BE MATERIAL ISSUES AT TRIAL.

I. Breach of Duty to Exercise Impartial Fairness.

86. The due process rights of the accused and the duty to do justicemandate that a prosecutor exercise impartial fairness at all stagesof any criminal investigation or prosecution, including the GJpresentation, because it is common knowledge that anindictment is hardly an innocuous event. An indictment candestroy a persons health, reputation, and career . ProsecutorialMisconduct, 2d edition, Bennett L. Gershman, (citing, UnitedStates v. Serubo, 604 F.2d 807, 79-2 US Tax Cas. (CCH) (3d Cir.1979); In re Fried, 161 F.2d 453 (1947) ( For a wrongful indictment is not laughing matter; often it works a grievous,irreparable injury to the person indicted .), at p. 63.

87. In this case, however, it is clear that the SDA failed to fulfill hisduty to exercise impartial fairness in the investigation andprosecution of this matter and thereby also violated McDonoughsright to due process and a fair trial.

88. In summary, the SDA: (1) focused his investigation onMcDonough despite the absence of any allegation against him andtargeted him for prosecution without conducting a proper investigation and in the absence of any credible evidenceincriminating him in the commission of the alleged voter

16


17/65

fraud/forgery, (2) obtained the self-exculpatory statement of McGrath , a primary suspect against whom a prosecution couldhave easily been brought, that materially contradicted thesubstantial credible testimonial and documentary evidence andfalsely incriminated McDonough in return for the protection of a

purported Cooperation Agreement; and (3) after threatening toprosecute BOE employee Kevin OMalley for perjury, apparentlyelicited his testimony falsely incriminated McDonough in returnfor immunity from prosecution.

89. The SDA then obtained an indictment against McDonough for theforgery of thirty-eight (38) AAB and the possession of thirty-six(36) AAB/AB based solely upon the uncorroborated and self-serving false accusations of those two (2) prospective defendantsin return for immunity from prosecution for substantive crimesand/or perjury.

90. In short, without any objective, credible accusation or evidenceimplicating McDonough in the participation of the subject voter fraud and forgery, the SDA immediately made him the primarytarget of an investigation and then obtained an indictment againsthim for crimes he did not commit or have any motivation tocommit.

91. On the other hand, in ignorance of all the substantial testimonialand documentary evidence implicating certain of the namedDemocrat incumbents and/or party workers in the alleged voter fraud and/or forgery of AAB, AB and AB envelopes, the SDAfailed to properly investigate or prosecute any of them, exceptLoPorto .

92. Parenthetically, as discussed by McDonough, Democrat incumbentLoPorto is considered by many within the Democrat Party as acontroversial, marginalized figure. In any event, he is not viewedas being a stalwart incumbent such as Brown , Campana or McGrath or a valued worker such as McInerney or DeFiglio .

93. It is therefore not surprising that LoPorto has also been prosecutedby the SDA to the benefit of the Democrat party in lieu of McGrath , Brown , Campana , McInerney or DeFiglio . LoPortomay also have been selected to give the pretense of a proper investigation and prosecution. However, any such attempt isunmasked by the irrefutable facts and the appearance of impropriety of this prosecution remains.

17


18/65

94. For all of the reasons discussed, the SDAs conduct in theinvestigation and prosecution of McDonough was improper and inviolation of his constitutional rights as well as the prosecutionfunction and duty to do justice.

II. McDonough made Focus of Investigation without any Accusation andFailure to Conduct a Proper Investigation.

A. McDonough made Focus of Investigation without any Accusation95. None of the Democrats or WFP workers involved in obtaining the

AAB incriminated McDonough in the subject voter fraud althoughtheir statements reflect that they were asked about him. So, thatevidence could not possibly have taken the SDA to the prosecutionof McDonough as he professes (I went where the evidence took me) for one undeniable reason: There was absolutely no evidenceimplicating McDonough in the alleged crimes. There were not

even any allegations made against him. There is also a simplereason for the absence of any evidence or claim: He was notinvolved in the acts.

96. Furthermore, the irrefutable facts show that the SDA conductedlittle or no actual investigation before targeting McDonough for prosecution in lieu of the named Democrat incumbents and/or party workers implicated by the voters and documents in thealleged voter fraud and/or forgery of AAB, AB and AB envelopes,including, DeFiglio (who admitted to committing the subject voter fraud, albeit without any evidentiary facts being elicited from him),McGrath (against whom there was substantial testimonial anddocumentary evidence upon which to base a prosecution) andMcInerney (whom several of the party workers incriminated).

First Police Interview of McDonough97. It is clear that when NYSP Investigator Ogden interviewed

McDonough on November 19, 2009 the SDA had alreadytargeted him for prosecution.

98. At that time, McDonough was given Miranda warnings but theonly topics discussed with him were: (1) the AAB filed by Brownthe day before the primary and the AB issued on them that weredelivered at his request to McInerney ; and, (2) the LoPortosrestaurant meeting discussed in the Couch , Caird and Aldrichstatements.

99. Specifically, although there had been no allegations that he wasinvolved in any alleged fraud/forgery McDonough was not askedanything about the AAB filed by McGrath , the activity of any

18


19/65

other person regarding the subject AAB or AB or any allegationcontained in the statement of DeFiglio , Couch or Caird . Simplyput, McDonough was interviewed as a suspect, not as aprospective witness. A copy of the typewritten statement heexecuted at that time is attached as Exhibit 13.

Second Police Interview of McDonough Perjury Entrapment Tactic100. Later, Inv. Ogden asked McDonough to meet him to clarify a

few things and he did so on December 7, 2009 . At that time, theinvestigator told McDonough they knew he had delivered theAB issued on the AAB filed by Brown to McInerney andunderstood that he did not want to talk about him because theywere close friends.

101. Therefore, whether McInerney was present when the AB weredelivered to his office at Browns request was not a material fact at

that time and the questioning of McDonough about it was simply aperjury trap set in absence of legal counsel.

102. Again, McDonough was not asked about any other relevant factsor allegations regarding the matter. Simply put, it is obvious thatthe SDA did not want him to provide or discuss any of the relevantfacts. A copy of the typewritten statement he executed concerningthe interview is attached as Exhibit 14.

No Allegations or Evidence Incriminating McDonough103. In any event, up until that time, there were still no allegations or

evidence incriminating McDonough in the voter fraud or forgeryof AAB/AB/AB envelopes. Clearly, therefore, the evidence couldnot have taken the SDA to the investigation or prosecution of him.

104. Furthermore, as stated, the statements allegedly made byMcDonough at the LoPorto meeting are not, as a matter of law,admissions of guilt. At worst, they are simply statementsreflecting his concern about the possible political and professionalramifications of the criminal actions of others and that he did notwant to be brought into the matter by implication. Nonetheless,those comments were obviously recorded in the witness statementsby the police for the inference of guilt. In any event, anysupposition that McDonough had knowledge of the alleged voter fraud/forgery is sheer folly.

Candidates/Party Workers had Personal/Political Interests in Election105. It is obvious that the above-named incumbent Democrats and party

workers who sought to obtain absentee votes for City of Troy

19


20/65

candidates in the WFP primary including Brown , McInerney ,Dan Brown , LoPorto , Campana , DeFiglio , Aldrich , Welch andCouch had personal and/or political interests in the outcome of theprimary elections.

106. Also, as mentioned below, McGrath had openly said that heintended to beat Mirch at his own game and take the WFPendorsement while Brown insisted that McInerney and othershelp him win the WFP primary so that he could garner the largestnumber of votes possible in the general election to establish hisviability to be the Democrat candidate for the City of Troy mayoralelection this year.

107. Unlike those candidates and party workers, however, McDonoughdid not have any personal or political stake in any particular campaign in the many pending elections. To the contrary, like

Bugbee, he was a BOE commissioner who merely clericallyassisted voters, his party candidates/workers and others in dealingwith the elective process.

B. Failure to Conduct Proper Investigation and Obtain Relevant Evidence that wouldhave Incriminated Democrat Incumbents and Party Workers108. Obviously, in order to conduct a proper criminal investigation of

the matter all relevant evidence must be obtained and considered.

109. In that regard, although McDonough agreed without hesitation or counsel to be interviewed by the authorities on three (3) separateoccasions and give two (2) written statements as requested, not oneof the named Democrat incumbents agreed to do so. Instead, theyretained counsel and refused to be interviewed or give anystatement.

110. McGrath was the first Democrat incumbent to later agree to beinterviewed and give a written statement, but he did so only after being given the benefits of a purported Cooperation Agreementwhich, as discussed, was no more than a charade upon which tocommence the scapegoat prosecution of McDonough in lieu of theother Democrat incumbents and party workers clearly incriminatedby substantial credible evidence.

111. Furthermore, as discussed, although Democrat worker DeFigliovoluntarily agreed to be interviewed and gave a written statementadmitting his involvement in the subject and past voter fraud andforgery without counsel, the SDA never obtained or attempted toobtain any other specific evidence that would certainly haveimplicated the Democrat incumbents and/or other party workers

20


21/65

involved in this matter. The SDA also failed to prosecute DeFiglioupon the proposition that he is only a low-level party worker. Inany event, however, it is obvious that he committed the admittedcriminal acts with the direction, participation and/or complicity of others. He certainly did not plan or commit those crimes alone.

Therefore, he must have more relevant information about othersthat the SDA did not obtain for the reasons discussed.

112. Also, the SDA similarly accepted without question the voluntarystatements of Democrat Aldrich and WFP members Caird andWelch although contradicted in material part by other testimonialand documentary evidence. The SDA also similarly failed toobtain any other relevant information from them, and, specifically,any evidentiary facts about the identity and acts of others involvedin the conduct.

113. Lastly WFP organizer Sara Couch , who possessed and filed aboutthirty (30) forged AB, agreed to be interviewed and gave a writtenstatement only after the SDA gave her immunity from prosecution.She then incriminated only LoPorto while claiming completeignorance and implying that McDonough should have known whatshe did not.

III. Dereliction of Duty to Properly Investigate and/or Prosecute DemocratIncumbents and/or Party Workers.

114. As stated, public policy, the integrity of the elective process and

the interests of justice as well as the publics trust in the integrityof the criminal justice system dictate that the investigation andprosecution of this matter of significant public interest beconducted properly and that the guilty held responsible, if possible.Unfortunately, it is clear that the SDA will not prosecute thoseother people who committed the alleged voter fraud and forgery of AAB, AB and AB envelopes.

A. Blind Acceptance of Veracity of WFP Workers Statements115. In fact, the SDA immediately accepted without question the

veracity of the self-serving exculpatory statements of WFPmembers Aldrich , Caird and Couch , despite their participation or complicity in obtaining, completing and/or filing the AAB/AB inquestion and their interests in the outcome of the elections and thestruggle to take control of the WFP in Rensselaer County fromMirch and other Republican Party operatives.

21


22/65

116. In any event, the SDA did not investigate and likely does notintend to prosecute any of them for political reasons related to theimproper prosecution of McDonough.

B. Decision to Not Prosecute DeFiglio

117. In particular, the SDA stated that he will not prosecute DeFigliodespite his admission of having committing the alleged voter fraudand similar crimes for years because he is a Democrat footsoldier. No doubt many low level drug traffickers and other street criminals would vote to elect the SDA if he dared ran for the DAs office on such a platform of authorized avoidance of personal responsibility.

118. In any event, it is not surprising that the SDA will not prosecuteDeFiglio because his prosecution would likely open a PandorasBox that would lead to the implication of Democrat incumbents

and/or others in alleged voter fraud/forgery.C. Failure to Obtain Evidence from DeFiglio against Democrat Incumbents, Workers

and/or Others119. Otherwise, by his own admissions, DeFiglio must have a wealth of

knowledge about the voter fraud and ballot forgery that he andothers committed concerning this WFP primary and many other elections over several decades, which likely includes the namesand conduct of his accomplices in this case. At the very least, hehas much more information about the alleged voter fraud thancontained in his statement.

120. Therefore, DeFiglio obviously could have provided further testimonial evidence, investigative leads and useful informationagainst those who committed the alleged voter fraud and AAB/ABforgery. Again, his statement cannot possibly contain his entireknowledge of information regarding the matter. Why then did theSDA not seek to obtain any further relevant evidence or information from him?

121. In conducting his purported investigation the SDA simply failed toobtain any other evidence, investigative leads or useful informationfrom DeFiglio in effort to prove a case against any Democratincumbent, party member and/or other person with whom hecommitted the subject and/or similar criminal acts in the past asadmitted.

D. Failure to Obtain All Evidence from Democrat Incumbents/Party Workers122. It is not surprising that the SDA also failed to obtain any other

evidence, investigative leads or useful information from any other

22


23/65

witnesses or prospective defendant that he does not intend toprosecute, including McGrath, in effort to prove a case against anyDemocrat incumbent, party member and/or other person.

123. The same question must again be asked: Why did the SDA not

seek to obtain any such evidence or information? That appears tobe a rhetoric question in view of the relevant facts, credibleevidence and his related conduct.

E. Failure to Investigate Democrat Incumbents and/or Party Workers124. In fact, the SDAs time records show that he conducted absolutely

no investigation against any Democrat incumbent or party worker implicated by the voters, DeFiglio and other credible testimonialand documentary evidence in the approximate six (6) month periodfrom the date of his appointment until he entered into saidpurported Cooperation Agreement with McGrath. A copy of the

SDAs interim billing record for the dates September 28, 2009 toAugust 17, 2010 is attached as Exhibit 15.

F. SDAs Contradictory Statements re Prosecution of McInerney and Brown125. Interestingly, the SDA initially professed that he intended to obtain

indictments in three (3) stages against the following persons: First:McDonough and LoPorto ; Second: Campana and Gary Galuski ,and Third: McInerney and Brown .

126. Parenthetically, in view of the SDAs otherwise inexplicableactions, and, specifically, his targeting of McDonough for prosecution, I informed McDonough and co-counsel Thomas V.Kenney, Esq. several months after being retained that it was clear that the SDA would not prosecute Brown , Campana , McGrath ,McInerney or any other Democrat incumbent or party worker implicated in the alleged crimes. Even then, it was obvious thatthe SDA intended to improperly prosecute McDonough (andperhaps LoPorto) in lieu of any Democrat incumbents or partyworkers for the benefit of his conflicting interests and theDemocrat Party of which he is a member and previously sought thenomination for the Office of District Attorney.

127. It is therefore not surprising that in about November 2010 the SDAcontradicted his prior representation and told counsel that Brownand McInerney would not be prosecuted, based upon the statedpretense that there was not sufficient evidence to do so.

G. Failure to Prosecute Brown and McInerney despite Credible Evidence128. It is respectfully submitted that the SDAs position that there is

sufficient evidence to prosecute McDonough and LoPorto but notMcInerney , Brown or any Democrat incumbent or party

23


24/65

worker implicated by the substantial credible testimonial anddocumentary evidence as having been directly involved in thecommission of the alleged voter fraud and/or forgery of AAB, ABand AB envelopes strains all acceptable bounds of credulity andpropriety.

129. Simply put, the conduct and posture of the SDA in theinvestigation and prosecution of this politically related matter iscontrary to the credible evidence, logic and common sense as wellas the dictates of public policy, his official duties, the interests of justice and the integrity of the elective process and criminal justicesystem.

H. Pretentious Threat of Prosecution and Refusal to Plea Bargain/Grant Immunity isInherently Contradictory and Prevents Others from Exculpating McDonough130. Soon after appointment, the SDA informed counsel for

McDonough , LoPorto , McInerney and/or others that there wouldbe no negotiated disposition with any potential defendant unless itincluded a felony guilty plea. Incredibly, the SDA has maintainedthat position despite the fact that he later professed that theevidence was insufficient to prosecute any of those potentialdefendants.

131. It is not surprising that the SDAs position is inherentlyinconsistent not only with his failure to conduct a proper investigation but also with his later representation that there is notsufficient evidence to prosecute McInerney , Brown and/or others . Rather, it appears to be yet another instance of hisinexplicable conduct that has been constant in the investigation andprosecution of this matter. Simply said, at every turn, it becamemore apparent that the SDA was acting as if the prosecution was agame to be played according to his rules of engagement.

132. Furthermore, the SDAs aggressive plea bargain posture, together with the pretentious threat to prosecute others, has and willcontinue to have the likely desired effect of precluding any of those potential defendants from giving testimony that wouldexculpate McDonough or otherwise assist his defense. Unlessgiven immunity, they obviously will remain silent as he isprosecuted, as they have done so far.

Refusal to Grant Immunity to Prospective Witnesses133. The fact that the SDA also will not grant immunity to any potential

defendant is evident from his refusal to grant Bugbee immunity if called as a witness on behalf of McDonough to testify before theGJ about the daily and customary practice, policies, procedures

24


25/65

and protocol of the BOE in regard to the completion of AABpresented for filing by candidates, voters and others.

134. It should be noted that the SDA refused to grant Bugbee immunityto testify before the GJ even though he does not intend to prosecute

any other persons, has no power to prosecute Bugbee, has noevidence incriminating Bugbee and repeatedly professed that hewould treat McDonough fairly before the GJ.

135. In any event, in view of the obvious fact that the SDA will not

prosecute any other potential defendant, his pretentious threat of prosecution is contrary to the interests of justice because it willprevent them from being called as a witness by McDonough togive exculpatory or other evidence on his behalf.

136. Therefore, it appears that the prosecutors position of threatening

to prosecute other Democrat incumbents and party workers whomhe actually will never prosecute is designed to further his improper prosecution of McDonough. It cannot be genuinely argued that theinterests of justice and integrity of the criminal justice system areserved by such sharp and pretentious prosecution tactics.

Recent Admission to Court that No Others will be Prosecuted137. Recently, albeit with difficultly, the SDA finally admitted to the

Court what had been obvious all along: no others will beprosecuted for the alleged voter fraud/forgery. His rather satiricalcaveat that in my mind I would like to think that its not done would be truly comical but for the seriousness of baselessprosecution of McDonough.

IV. Targets McDonough for Prosecution without Evidence, Improperly MeetsMcDonough and Prejudicial Effect of Threat of Prosecution/Conduct.

A. Targets McDonough for Prosecution without Any Evidence

138. As said, the nature of the Couch , DeFiglio , Caird and Aldrichinterviews and statements show that by the time they were donethe SDA had already made McDonough a target for prosecution,despite the fact that he had no involvement in the fraud or forgeryof any of AAB or AB and no one had yet alleged that he did.

139. There would have been no other reason for the police to elicit andrecord in those witness statements any of McDonoughs allegedambiguous and irrelevant hearsay statements or their specioussuppositions except for the inference of criminality.

25


26/65

140. The fact that the SDA had determined to prosecute McDonough atan early stage in his investigation, despite the lack of anyallegation or credible evidence of his involvement in the allegedvoter fraud is also evident from the fact that the police gave himMiranda warnings before his interviews.

Declaration that I Went Where the Evidence Took Me is Belied by Conduct, Statements, Credible Evidence, Logic and Common Sense141. Amid much speculation and criticism regarding the conduct of this

prosecution it is more than ironic that the SDA has repeatedlyprofessed in conversation, court conference and press conferencespeech that: he went where the evidence took him .

142. In reality, however, the facts show that the SDA went exactly

where he wanted to go despite the credible evidence and where itwould have necessarily taken him in the proper exercise of his

official duties and professional responsibilities. Frankly, it wouldhave been impossible for the SDA to get to where he went if hehad simply followed the evidence. It is clear from the facts that theSDA went only where he wanted to go.

143. In sum, the irrefutable facts show that the SDA failed to go where

the evidence would have taken anyone acting properly, failed todevelop the relevant evidentiary facts and ignored theunimpeachable evidence that implicated McGrath, McInerney,Brown and others in his quest to prosecute McDonough in lieu of those responsible. They also lead to the inescapable conclusionthat the SDAs investigation and prosecution of McDonough isbased solely on conflicting personal/political interests and thespeculation of politics which present an improper appearance of impropriety.

144. It seems that the SDA has adopted a pattern of crying wolf withpretentious magnanimity to mask the nature of his actions and thiscase: the prosecution of two scapegoats in lieu of the other Democrats and party workers for his own interests.

B. Meets with McDonough without Counsel, Discloses Conflicting PersonalInterests and Threatens Prosecution145. Also, almost two (2) months after McDonoughs second interview,

the SDA met with McDonough at the State Police station. Therelevant facts of that January 27, 2009 meeting are set forth in theaffidavit of McDonough and incorporated herein by reference.

146. It is self-evident that the SDA had no legitimate reason or purpose

for meeting with McDonough, especially without counsel present.

26


27/65

It is most evident from his failure to give Miranda warnings andhis demand that McDonough immediately tell him all about what he and his friends did at their forgery factory without anyregard for his Fifth or Sixth Amendment rights. It is also obviousfrom the fact that he did not ask McDonough about any

allegations, witness statements, documents or other evidence.

147. Is it to be believed that the SDA, a past prosecutor and SupremeCourt law clerk with more than 25 years experience in criminalpractice, expected that McDonough would confess to being thering-leader of a forgery factory defrauding voters? Is it to bebelieved that the SDA would have no concern about meeting witha person he had clearly targeted for prosecution without legalcounsel if he expected such an admission?

148. The answers to those rhetoric questions are also confirmed by the

fact that the only thing that the SDA did at that time was state hisintent to prosecute McDonough and disclose his conflictingpersonal interests for doing so.

149. It is also clear that the SDAs conduct was in complete disregard of McDonoughs Fifth and Sixth Amendment rights because he hadalready determined to prosecute him based upon the incriminationshe had elicited from McGrath. Therefore, as a matter of ethics heshould not have met with McDonough under any circumstances.

150. It is well settled that a prosecutor has a higher duty than a policeofficer to ensure, honor and protect the constitutional rights of atarget, suspect or defendant and the SDA violated that duty bymeeting with McDonough.

151. The inescapable conclusion is that the SDA met with McDonough

simply to express his personal interests for prosecuting him. Moreimportantly, McDonough holds that belief and, regardless of itsmerit, the SDAs otherwise inexplicable comments and threatspresent an actual conflict of interests and improper appearance of impropriety that has irreparably tainted his investigation andprosecution of this matter.

152. That conflict of interest and appearance of impropriety, together with the speculation of politics inherent in his conduct hasirreparably prejudiced McDonoughs due process rights andrequires his disqualification and a dismissal of the Indictment.

C. Prejudicial Effect of Threat of Prosecution and Other Conduct

27


28/65

153. As stated, the facts appear to show that the SDA selectedMcDonough as a scapegoat for prosecution in lieu of those other Democrat incumbents and/or party workers implicated by theevidence as being involved in the alleged voter fraud/forgery.

154. Furthermore, even if the SDAs breach of his duty to deal fairlywith McDonough did not result in any obvious harm that does notmean that it had no prejudicial effect.

155. To the contrary, among other things, it resulted in an Indictmentand had the substantial prejudicial effect of preventingMcDonough from exercising his right to testify before the GJ as hehad intended because he reasonably believed that the SDAintended to maliciously prosecute him for crimes that he did notcommit based solely on his conflicting personal interests.

156. Notably, McDonoughs prospective testimony would haveincriminated McInerney and Brown in the alleged voter fraud andforgery and he firmly believes that the SDA did not want any suchevidence presented to the GJ. Therefore, for the reasons stated,McDonough expected that the SDA would treat him unfairly in theGJ.

V. Gives Benefits of Purported Cooperation Agreement to McGrath in Returnfor False Accusation against McDonough that is Contradicted by CredibleTestimonial and Documentary Evidence.

A. SDA Enters Purported Cooperation Agreement with McGrath Immediately after Threatening to Prosecute McDonough for Forgery157. Perhaps the most glaring indication of the SDAs conflicting

interests for prosecuting McDonough is the fact that later on thesame day that he told McDonough he intended to prosecute himfor forgery he had a brief telephone conference with McGrathsattorney and thereafter entered into a purported CooperationAgreement with McGrath after only a few more brief telephoneconversations (i.e. 0.30 hr., 0.10 hr., 0.10 hr., and 0.30 hr. on Jan.27 , Feb. 3 , Feb. 4 , and Feb. 5 ; respectively; On Mar. 2 , heexpended and 0.40 hr. in preparing a draft of the purportedagreement). See, Exhibit 15.

158. That fact is even more interesting because, as stated, until thenthere had been no evidence implicating McDonough in the allegedvoter fraud. Still, the SDA threatened McDonough withprosecution for his forgery factory even before he talked withMcGraths attorney or McGrath gave his statement or made thoseaccusations.

28


29/65

159. Specifically, the SDAs time records show that from the date of hisappointment on September 28, 2009 to the date of his meeting withMcDonough on January 27, 2010, he spent little or no timeinvestigating any other prospective target, but within only fifteen(15) minutes to one (1) hour of threatening to prosecute

McDonough, entered into a purported Cooperation Agreementwith McGrath that shielded him from prosecution in return for hispreposterous written statement in which he: (1) completelyexculpated himself, (2) accused McDonough of forging two AABthat benefited only him, and (3) speculated that McInerney, Brownand Dan Brown were responsible for the alleged voter fraud/forgery without providing any evidentiary facts.

160. Thus, the SDA entered into the purported Cooperation Agreementwith McGrath, likely the only person against whom alleged voter fraud could have been readily proven, after a time expenditure of

only thirteen (13) to seventy-two (72) minutes.161. In short, it is self-evident that the so-called Cooperation Agreement

is no more than a sham used by the SDA to insulate McGrath fromprosecution and obtain accusations upon which to base hisimproper prosecution of McDonough.

162. Most interesting, the facts establish that the SDA knew McGrathwould accuse McDonough of forgery even before his attorney wascalled or his statement obtained, despite the lack of any basis for that knowledge being reflected in his time records.

163. It is also likely that the SDA entered into said Agreement withMcGrath in early February 2009 but waited about six (6) weeksbefore obtaining his accusatory written statement to give theappearance of an actual investigation.

164. In any case, the SDAs time records show that he did nosubstantive work in the investigation of the case from the time hemet with McDonough on January 29 until March 12, 2010, whenhe prepared to interview McGrath.

B. Conflicting Interests for Giving McGrath Cooperation Agreement165. It is also important to note that McGrath is the brother of a well-

known and respected Supreme Court Justice who is a former County Court Judge and Troy Police Court Judge who hassubstantial family, social and political ties in the communities of the City of Troy and County of Rensselaer.

29


30/65

166. It is also clear that the SDA does not intend to investigate or prosecute the person known to have assisted McGrath in hisactivities and could potentially provide incriminatory informationagainst him and/or others, i.e. Rick Mason.

C. McGraths Written Statement Pursuant to Cooperation Agreement167. On March 29, 2010 McGrath gave a written statement to the SDA

pursuant to said Cooperation Agreement. A copy of the same isattached as Exhibit 16.

True Nature of Cooperation Agreement and Statement: False Accusation againstMcDonough in Return for Immunity/Treatment without Any Benefit to State

168. As said, in his statement McGrath : (1) fully exculpated himself,(2) accused McDonough of forging an AAB that he obtained/filed,

and (3) gave the unsubstantiated opinion that McInerney , Brownand Dan Brown were behind the fraudulent votes .Parenthetically, McGrath is the only person who benefited fromthe forgery he alleges McDonough gratuitously committed for hisbenefit without any alleged need or request.

169. In short, after one brief conversation, McGrath failed to acceptresponsibility for any alleged criminal conduct, accused onlyMcDonough of forgery and effectively avoided ever having to becalled as a witness against any of his compatriots implicated by thecredible evidence as being involved in defrauding voters on thestreet and/or forging their AAB, AB and/or AB envelopes. Allwith the unquestioning blessing and blind faith of the SDA who inreturn granted him immunity from prosecution (or reducedcharges).

170. Not surprisingly, in obtaining McGraths statement in return for

the benefits of said purported Cooperation Agreement, the SDAobviously directed him to discuss the AAB, AB and/or ABenvelopes that, together with the testimony of voters (and likelyDNA), incriminated him in the alleged fraud and forgery.However, in his self-exculpating statement McGrath materiallycontradicted the credible testimony of the voters and documentaryevidence and exposed the fallacy of the SDAs position inaccepting his purported cooperation in return for those benefits.

Involvement with AAB/AB and Other Democrat Incumbents/Workers171. A summary of McGraths statement concerning the purported

voter AAB, AB and AB envelopes that he obtained, completedand/or filed is set forth as Schedule B .

30


31/65

172. In his statement, McGrath confirms that on September 12, 2009,

McInerney , Brown , Campana , LoPorto , Galuski , Martinianoand Dan Brown were at Griswold Heights public housing complexto obtain AAB for the WFP primary and, later that day, he met

Dan Brown and Aldrich at the Corliss Park public housingcomplex where they told him they had obtained several AAB andwere introduced by him to Marc Welch .

Statement Contradicted by Credible Evidence173. As stated, however, all of the mentioned voters, except Lloyd

Newell, materially contradict McGraths assertions in their affidavits/testimony. A summary of their statements is set for thein Schedule C .

174. In fact, there can be no doubt that the testimony of those defrauded

voters and their AAB, AB and AB envelopes would be sufficientevidence to convict McGrath of certain alleged voter fraud/forgery.Also, McGrath admitted in his statement that he licked certain of the AAB/AB envelopes and mailed them to the BOE.

175. In any case, the SDA could not have believed the veracity of McGraths statement in view of the substantial credible testimonialand documentary evidence that materially contradicted it.Nonetheless, he accepted it as a basis to prosecute McDonough.

Self-Serving False Accusations against McDonough176. McGrath also alleges that on September 14, 2009 at about 4-5pm

(although actually just after the 11:14 a.m. time-stamp on the AABfiled by Brown) he went to the BOE and was present inMcDonoughs office when McDonough and Brown talked aboutthe need to have a person to whom an AB was to be releasedentered on an AAB and took it to mean that there were blanks oncertain AAB. He states that WFP chairperson Jim Welch wasmentioned as that person and Brown called him but he does notrecall Brown mentioning any specific number of AAB to Welch.

177. He also states that in the meeting: McDonough or Brownmentioned they were talking about thirty-five (35) AAB; it wasclear to him that it would be impossible to get AB for all of thoseAAB; and, that he was not sure who had the AAB at that timebecause [he] saw them so [he] told them both to make sure that they didnt mess with the voters from District l. [He] specificallymentioned Marc Welch and told them that his excuse was that hewas a diabetic. [He] knows his [AAB] was in the pile because hesaw it on Saturday when he met with Dan Brown and Tom Aldrichat Corliss Park. McDonough then told them to leave because

31


32/65

[they] were candidates [He] took that to mean that [Welchs]name would be placed on the release to line on the 35 [AAB] that [they] were speaking about and he didnt want us there when it happened .

178. It is not surprising that McGrath claimed to have had such sharphearing, sensibility and recall about Marc Welch because their relationship and his family name did not deter that voter fromgiving a sworn statement that would alone, if believed, clearly besufficient evidence to convict McGrath of alleged fraud andforgery.

Useless Supposition against McInerney179. McGrath asserts that later the same day, he called McInerney to

make sure that the friendlys that were solicited in [his district]actually received their [AB] because of what [he] had heard in

McDonoughs office Mac told [him] that 2 or 3 of them weregoing in. [He] took that to mean that 2 or 3 voters could not belocated to fill out their [AB] but that the ballots would be sent into the BOE anyway. [He] wasnt happy about the votes going in but cant remember what [he] said to Mac .

McDonoughs Alleged Hearsay Statement180. Lastly, McGrath stated that sometime in September 2009 after the

allegations of voter fraud were made public, he asked McDonoughwhat happened with the AB and McDonough said that theyfucked up , which he believes meant McInerney, Brown and DanBrown. He added that he believes they are behind the fraudulentvotes and that McDonough could have stopped the whole thingwhen Brown and he were in his office.

181. Even if McDonough stated his thought about what people mighthave committed the crimes alleged based upon his scantknowledge of their activities in trying to get out the vote, anysuch comments have been purposely mischaracterized and takenout of context by McGrath. More importantly, as a matter of lawthey are no more than inadmissible hearsay statements, notadmissions of guilt as implied.

D. Purported Cooperation Agreement Provides No True Benefit to State182. Nonetheless, at that time, the SDA blindly accepted the veracity of

McGraths patently incredible, uncorroborated and self-servingexculpatory statement and shielded him from prosecution in returnfor his uncorroborated accusations against McDonough.

32


33/65

183. In fact, the SDA later stated that he entered into a federal-styleCooperation Agreement with McGrath. If that is the case,McGrath should have been required to first truthfully disclose allrelevant evidence and fully accept responsibility for his own acts inorder to ensure the integrity of the process and that both parties

obtained the benefit of the bargain. Public policy, theconstitutional rights of the accused and the basic principles of criminal justice require no less.

184. Under the circumstances, the SDAs acceptance of McGrathsstatement as a complete and truthful disclosure of his activities andknowledge upon which to base a prosecution against McDonoughand give him the benefits of a cooperation agreement is shockingto the conscience, insulting to the intellect and a mockery of criminal justice.

185. If McGraths statement was a complete and truthful disclosure of his relevant activities and knowledge there was no reason for anycooperation agreement in the first place, no reason for him not tohave come forward as a witness long before then without the needfor any such agreement and, most importantly, no reason for theState to shield him from prosecution for the criminal responsibilitythat he denies. In any event, the State obtained no benefit from thebargain because it otherwise had a right to his exculpatorystatement.

186. Conversely stated, the SDA would have had no reason to enter intoa cooperation agreement with McGrath unless there was credibleevidence of his guilt that he failed to admit and, in fact,affirmatively denied in his statement.

187. Furthermore, McGraths credibility will be impeached bysubstantial testimonial and documentary evidence that iscontradictory of his statement and otherwise implicates him in thealleged criminal activity. The SDA will also be required todisclose the benefits given to McGrath in return for hisincrimination of McDonough for impeachment of his credibility.

188. As a matter of fact, the SDA conceded that McGraths statement isnot truthful by charging the GJ that as a matter of law McGrathwas an accomplice to the forgery that he accused McDonough of committing. It is truly ironic that the SDA exposes the true natureof McGraths statement as well as his own conduct by that simpleinstruction.

33


34/65

189. Therefore, the SDAs acceptance of McGraths statement is yetanother indication that his prosecution of McDonough based uponconflicting personal/ political interests and the result of improper and outrageous conduct in the investigation of the matter.

Public Policy, Constitutional Law and Professional Ethics Required Statementto be Considered Falsus in Uno Falsus in Omnibus 190. Most importantly, McGraths statement must be considered not

true to the extent that he completely exonerates himself from anyresponsibility and contradicts the irrefutable and credibletestimonial and documentary evidence. That could not have beenmissed by the SDA when he accepted from McGrath it in returnfor the benefits of the purported Cooperation Agreement.

191. Therefore, the dictates of public policy, constitutional law andethics required that the SDA consider McGraths entire statement

as incredible and refuse to accept it as valued consideration inreturn for the benefit of any Cooperation Agreement.

192. Public policy must require that any statement offered inconsideration for the benefits of a Cooperation Agreement bedetermined by the standard of falsus in uno, falsus in omnibus because the state can obtain no true benefit from a witness whogives even partially untrue or patently incredible evidence. Falseevidence, by its very nature, can be used only for illegal or nefarious purposes and the fundamental principles of contract lawalso require that any such statement be a thing of value. Therefore,a statement that is not completely truthful can never be accepted asvalued consideration.

193. Additionally, public policy dictates that any statement given inconsideration for the benefits of a cooperation agreement must betruthful in its entirety, including in a complete acceptance of personal responsibility, to avoid the purposeful manufacturing or ignorant elicitation of false evidence by law enforcement officials.

194. Public policy also requires that be the case because the state, by itsprosecutor, implicitly vouches for the credibility of its cooperatingwitness. How can the State legitimately propose that it would beproper and permissible to simply disregard part of the statement of a cooperating witness that is the patently incredible or false butaccept another part thereof as truth? The inherent absurdity of theproposition is contrary to every accepted principle of public policyand criminal justice.

34


35/65

195. The requirement that a statement given in return for the benefits acooperation agreement be completely truthful also has a foundationin the fundamental constitutional law from which the rights of theaccused as well as the duties of the prosecutor emanate.

196. A prosecutors paramount duty is to do justice, which includes theimpartial and fair treatment of the accused fairly at every stage of acriminal proceeding. Furthermore, the prosecutors acceptance of a witness statement incriminating another in return for the benefitsof a cooperation agreement necessarily implicates the rights of theaccused to due process and a fair trial, including the right topresent a defense, confront his accuser and be provided allexculpatory evidence.

197. How then, can it be fair for a prosecutor to offer the benefits of such an agreement in return for a statement incriminating another that is known to be incredible or false even if only in part? Can the

accused receive a fair trial when the prosecutor vouches for thewitness who has given such a partially incredible or falsestatement? Moreover, if the skilled prosecutor concedes evenimplicitly that the statement is partially false does he notnecessarily become an unsworn witness and improperly bolsteringthe purportedly truthful part of the statement?

198. Suffice it to say, when a prosecutor knowingly accepts thestatement of a witness that is not ostensibly completely true inreturn for the benefits of a cooperation agreement every precept of constitutional law concerning the rights of the accused and theduties of the prosecutor is implicated and at risk of desecration.The potential for abuse and the unfettered creation of falsewitnesses and evidence simply cannot be tolerated.

199. Lastly, the requirement that any such statement be ostensiblycompletely true is implicit in the standards of ethics, andspecifically DR Rule 3.4 which, in pertinent part, states: A lawyer shall not: (a)(4) knowingly use false testimony.

200. It cannot be seriously argued that a witness statement or testimonymay be used only for the part that is arguably truthful and thatthe part that contradicts other credible evidence can simply beignored as a question of fact that is unknown to be true or false.

201. Specifically, in this case, if the voter testimony is not accepted astrue, then there is no case. Conversely, if it is accepted as true,then McGraths conflicting testimonial evidence must be knownto be false. In either case, in order to use the purportedly truthfulportion of McGraths statement against McDonough, the SDA is

35


36/65

required to split the legal and ethical hairs twice: first, for theargument that the veracity of the statement does not have to beconsidered in its entirety, and second, for the proposition that theportion used against McDonough is not known to be falsebecause the conflicting voter testimony merely raises a question of

credibility and fact. However, the rules of law and ethics mustrequire more than such hair-splitting.

202. Therefore, as a matter of ethics, a prosecutor must not use thestatement of a cooperating witness that is not completely truthful.How can he be permitted to accept as truthful one part of astatement that contains patently incredible or false information?

203. In this case, therefore, the SDA was also required as a matter of ethics not to accept McGraths statement because it was clearlycontradicted by the irrefutable evidence and therefore could not be

considered truthful in its entirety.204. In summary , the SDA should not have accepted McGraths

statement as completely truthful because it is patently incredible inmaterial part, i.e. his denial of responsibility and contradiction of the credible testimonial and documentary evidence. Hisacceptance of it for the incrimination of McDonough in return for the benefits of said Cooperation Agreement based on hisconflicting interests and the speculation of politics was a violationof public policy, ethical considerations and McDonoughs dueprocess rights that require his disqualification from the case and adismissal of the Indictment.

VI. Prosecution of McDonough in Lieu of Certain Democrat Incumbents and/orParty Workers and Refusal to Accept McDonoughs Relevant Testimony.

A. Prosecution of McDonough in Lieu of Incumbents/Party Workers

205. At the very least, the facts, credible evidence and SDAs conductestablish that McDonough is being improperly prosecuted in lieuof other Democrat incumbents and/or party workers implicated bythe credible evidence, including McGrath (and incumbent andbrother of a Supreme Court Justice) or McInerney (an appointedofficial and the partys most diligent and valued worker) basedupon his conflicting personal/political interests and the speculationof politics. Specifically, it appears that the SDA seeks to advancehis own future political ambitions through the prosecution of McDonough.

206. Certainly, the prosecution of McDonough (and LoPorto) instead of the other Democrat incumbents and valued party workers benefits

36


37/65

the Democrat party by avoiding the political adversity that their prosecution would have in many upcoming elections, includingspecifically, their bids for re-election and District Attorneys racein 2011.

207. In that regard, it cannot sincerely be disputed that the SDA gaveMcGrath the benefits of a purported cooperation agreement inreturn for his uncorroborated and self-serving accusations againstMcDonough about six (6) months after there was more thansufficient credible testimonial and documentary evidence tosuccessfully prosecute him as well as other Democrat incumbentsand workers implicated in the alleged crimes. It also cannot bedenied that in the same period the SDA did nothing toinvestigation or prosecute McGrath, DeFiglio, Brown, McInerneyor any person identified by the prospective WFP absentee voters ashaving defrauded them and/or committed forgery with respect to

their AAB and/or AB.208. Again, therefore, the SDAs prosecution of McDonough (and

LoPorto) is clearly improper and based on a conflict of interestsand the speculation of politics i.e. for the benefit of himself, theDemocrat party and Democrat incumbents and workers.

B. Rejection of McDonoughs Testimony about Democrat Incumbents and Workers209. At all times, the SDA specifically refused to accept McDonoughs

proffered testimony about the actions and admissions of McGrath,McInerney and Brown that would have incriminated them in thealleged forgery of AAB/AB. Most recently, in November 2010, hemade it clear to counsel that he would not prosecuting those others.

210. It is ironic given his acceptance of McGraths patently incredible,uncorroborated and self-serving accusations against McDonough,that in doing so, the SDA added that McDonoughs credibility hadbeen impaired by his interviews with the State Police.

211. It is not missed that by targeting McDonough, the SDA effectivelysuppressed the testimonial evidence that he would have givenagainst McInerney, Brown and McGrath had he instead been calledto testify as a witness. In that respect, McDonough would havetestified to those facts set forth in his supporting affidavit and asfollows.

AAB Filed by McGrath and Completed with Information he Provided212. On or about August 24, 2009, McGrath filed certain AAB with the

BOE that were ostensibly signed by the voters, a few of whichwere not completed. At that time, McGrath told McDonough that

37


38/65

he obtained the information from the voter and it was entered onthose respective AAB so that the AB could be issued to them.

AAB Filed by Brown and Completed with Information he Provided213. On the day before the subject primary, Brown filed more than

twenty (20) AAB with the BOE that were ostensibly signed by thevoters but some of which were not completed, i.e. did not containcertain requested information, for example, the dates the voter wasexpected to be out of county.

214. At that time, Brown told McDonough that the voters gave thatinformation to the party workers who had obtained their AAB.Brown then called W

Affirmation of BDP

Documents

Transcript of Affirmation of BDP