STATE OF NEW YORK

SUPREME COURT COUNTY OF RENSSELAER

_______________________________________________________________________
_

PEOPLE OF THE STATE OF NEW YORK

Affirmation in Support of Motions
for Disqualification of Special

- against - District Attorney, Dismissal of

Indictment, Release of Grand Jury
EDWARD McDONOUGH, and, Minutes, Appointment of Special
MICHAEL LoPORTO, District Attorney and Other Relief.
Defendants.
_______________________________________________________________________
_

Brian D. Premo, an attorney duly licensed to practice law in the courts of New
York, 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 District
Attorney, 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 defendant

McDonough’s Motions for Orders of the Court: (1) Disqualifying
the SDA upon the basis of an actual conflict of interests as well as
the speculation of politics and appearance of impropriety that have
substantially prejudiced his rights to due process and a fair trial as
well as the fact that the conduct of the SDA in the investigation
and 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 has
substantially impaired his rights to due process and a fair trial; (3)
Dismissing the Indictment on the basis that the actual or implied
bias and prejudice of the GJ jurors and/or panel has deprived him
of due process; (4) Directing the Release of the GJ Minutes; (5)
Appointing a Special District Attorney with expanded authority to
investigate the matter and past similar incidents of voter fraud
and/or forgery; and, granting such further or other relief as the
Court deems just and proper. In the alternative, the defendant
requests that the Court conduct a hearing as required or appropriate

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 in the determination of any motion, upon sufficient notice to
reasonably 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 the
case disclosed by the SDA, including witness statements; the
supporting affidavit of McDonough; documents obtained from the
Rensselaer County Board of Elections (“BOE”); the papers
contained within the file maintained regarding this matter; and
personal conversations had with McDonough, the SDA and/or
others; and upon personal knowledge, where so stated.
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 and
fraudulently obtained and/or falsely completed their applications
for absentee ballots (AAB) and/or later forged and/or filed their
forged absentee ballots (AB). The alleged crimes were committed
for the purpose of casting forged AB votes for said Democrat
candidates in the September 2009 WFP primary election.
Unfortunately, the prosecution appears to be more about the
personal interests of the SDA and politics than personal
responsibility 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 City
Council incumbent, for what he publicly called a case of “massive
fraud perpetrated on the citizens of Rensselaer County”. In his
“press statement, the SDA also declared that the matter was
“clouded 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 the

pretense of words, clearly show that no proper investigation has
been conducted but rather that the SDA worked hard and with
patient diligently to prosecute only two chosen political scapegoats
while those Democrat incumbents, party workers and/or others
who perpetrated the alleged “massive fraud” are allowed to remain

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 outside the acceptance or judicial imposition of criminal
responsibility.

7. In truth, McDonough merely assisted certain Democrat candidates

and party workers in filing ostensibly valid AAB and obtaining AB
to be delivered to voters. He never knew that any information
entered on any AAB was false or that any AB filed by anyone was
forged. He did not participate in any election campaign. He did
not obtain, forge or file any AAB or AB, knowingly possess any
forged document or have a personal interest in any of the primary
elections the BOE was administering at the time.

8. Nonetheless, the SDA obtained the Indictment against McDonough

alleging that he forged almost forty (38) AAB, most of which he
never 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 marginalized
figure in the Rensselaer County Democrat Party, is joined in the
Indictment, albeit improperly.

9. Most significantly, the SDA recently implicitly admitted to the

Court that no other Democrat incumbent or party worker
implicated by the substantial testimonial and documentary
evidence as having been involved in numerous acts of alleged
voter fraud and forgery of AAB/AB, will be prosecuted, i.e.:
William McInerney, the Democrat Party’s most diligent and
valued worker who gave the warning that he “will not go down
alone” if prosecuted and is a friend of the District Attorney, whom
he helped win election and has had some involvement with the
case after being disqualified; Kevin McGrath, the Troy City
Council incumbent who was given the benefit of a Cooperation
Agreement in return for a statement incriminating McDonough and
exonerating himself in contradiction of the substantial irrefutable
evidence and is the brother of a well-known, highly respected
Democrat Rensselaer County Supreme Court Justice before whom
the SDA has and will likely practice; John Brown, a Troy City
Council incumbent who happens to be a Democrat Party stalwart
positioned for future office and political leadership; Thomas
Aldrich, Anthony DeFiglio, Brant Caird and James Welch, the
Democrat and WFP workers who assisted the Democrat candidates
in obtaining the AAB; and Sara Couch, the WFP activist who
delivered certain forged AB to the BOE.

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

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

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

and prosecution of those responsible for the alleged crimes has
become perhaps the most blatant and complex case of political
prosecutions in recent Rensselaer County history.

12. In that regard, although it takes but few words to tell the truth, it
takes much effort to unmask the facts when obfuscated by
pretense. Thus, despite the SDA’s oft repeated spontaneous
declarations: “I have no political ambition,” “I went where the
evidence took me” and “I will treat McDonough fairly”, it will be
seen 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 that
the facts must be discussed at length. It must also be noted that the
identities of those allegedly involved in the matter are discussed as
necessary because they have been previously publicly disclosed
through extensive prosecution biased media coverage caused by
others before and after Indictment.

14. It is upon those facts that McDonough moves for removal of the
SDA, dismissal of the Indictment and appointment of a special
prosecutor with authority to properly investigate the subject and
past similar incidents of “massive” voter fraud.

RELATED FACTS

I. Private Investigation & Action to Void AB Cast for Democrats:

Substantial Testimonial and Documentary Evidence Incriminating Democrat
Incumbents and Party Workers.

A. Lambertsen Petition Alleging Fraud re AB Cast for Democrats

15. On September 23, 2009, by Petition and Order to Show Cause,
WFP member Christian Lambertsen brought action to prohibit the
counting 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, John
F. 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 the
Lambertsen Petition and supporting affidavit of Robert Mirch,

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 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 the
Petition (see, Exhibit 1) shows that certain AB were ostensibly
issued 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 were

purportedly cast for the named Democrat candidates, including
McGrath, Brown, Campana and LoPorto.

B. Mirch Affidavit Alleging Fraud by Persons Obtaining AB for Democrats

21. 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 named
Democrat 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 committed
by the people who obtained their AAB/AB. (See, Exhibit 3,
paragraphs 3-10)

C. Private Investigation and Evidence of Voter Fraud and Forgery

23. 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 by
simply signing a document presented; (2) they signed incomplete
AAB upon which certain information (often false) was later
entered by someone unknown; and/or (3) they did not obtain, sign
or file an AB or AB envelope.

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 24. In short, numerous forged AB were filed for the WFP primary.

D. Supporting Affidavits of the Sixteen (16) Purported Absentee Voters

25. Specifically, sixteen (16) of those voter affidavits submitted in
support of the Petition show, in substance, that the voters signed
incomplete AAB, that their signed AAB contain false information
and/or that they never obtained, signed or cast an AB. Copies of
their affidavits are collectively attached as Exhibit 4.

E. Evidence of AAB and AB Fraud/Forgery: AB Issued to DeFiglio

26. The BOE absentee voter summary showed that AB for the
following voters were ostensibly issued to Democrat worker
Anthony DeFiglio (“DeFiglio”): (1) Terence M. Conway, and (2)
Nadine Legrace.

27. In fact, however, neither of those voters completed an AAB and/or

voted by AB. (See, Exhibit 4 and their respective affidavits)

F. Evidence of AAB and AB Fraud/Forgery: AB Issued to Aldrich

28. The BOE absentee voter summary showed that AB for the
following voters were ostensibly issued to Democrat Thomas
Aldrich: (1) William Amey, (2) Lisa Chum, (3) Walter Howard,
(4) Thurman Jones, (5) Johanna Torres, (6) Miguel Vasquez, (7)
Michael Ward, (8) Tyron Washington, (9) Gina N. Welling, and
(10) Michele Zillgitt.

29. Again, however, none of those voters completed their AAB and/or
voted by AB. (See, Exhibit 4 and their respective affidavits)

30. In summary, the substantial credible testimonial and documentary

evidence obtained in relation to the Lambertsen action implicated
certain Democrat incumbents as well as Democrat and WFP
workers in obtaining AAB from the voters by fraud and/or later
entered false information and/or signatures on those AAB/AB/AB
envelopes. Therefore, they should be the targets of this criminal
investigation and prosecution.

G. Struggle for Control of Rensselaer County WFP

31. The alleged voter fraud/forgery and related Lambertsen action are
the direct result of the long-standing political struggle of the WFP
and its Democrat allies to take control of the Rensselaer County
WFP from Mirch and other Republican operatives that has been
the subject of much media discussion for many years.

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 32. The import of that political struggle cannot be ignored in the
investigation and prosecution of this matter because it gives
context to the actions and motives of the Democrat incumbents and
Democrat and WFP workers identified by the defrauded absentee
voters 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 the
WFP struggle that led to the subject criminal conduct and related
actions and motives of those involved. Consequently, that political
struggle gives some contextual relevance to certain of the actions
and motives of the SDA, disqualified District Attorney Richard
McNally 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 Implicates

Democrat Incumbents and/or Party Workers
34. 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, Lloyd
Newell, J. Boomhower, Richard Guslaw, and Karen Guslaw. The
SDA and McDonough also attended the hearing.

35. Those voters essentially testified that they were approached by

certain of the named Democratic incumbents/party workers and
told that they could vote merely by signing a document presented;
that they did not sign, complete and/or provide information on
AAB that is false; and/or that they did not obtain, sign or cast an
AB. Their testimony is summarized in Schedule A.

36. Brown, Democrat worker Richard Mason and BOE Republican

Commissioner, Lawrence Bugbee also testified at the hearing.

37. Notably, Mason’s testimony is materially contradictory to the

statements of voters Jennifer Taylor and Thomas Dickinson as
well as McGrath (see, Schedules A, B, C and ¶¶ 157-203 below).
A copy of Mason’s testimony is attached as Exhibit 5.

38. In substance, Mason testified that voters Taylor and Dickinson

completed and signed their AAB in front of him and McGrath.
However, in their statements those voters said that they did not
sign their purported AB or complete their AAB that contained false
information and signatures. Furthermore, as discussed below,

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 about six (6) months later McGrath gave a statement that
materially contradicts Mason’s testimony and the voters’
statements and in which he alleged that McDonough knowingly
entered false information on voter Dickinson’s AAB.

39. In any case, it is clear that Mason had no reason to testify as he did
except to protect himself and McGrath, which, of course, he would
not have done or had any motive to do if McGrath’s later statement
incriminating McDonough was truthful.

40. The affidavits of thirty-five (35) purported WFP absentee

voters, including those who testified, were also admitted into
evidence and irrefutably established that certain Democrat
incumbents and/or Democrat and/or WFP workers asked them to
sign incomplete AAB that were later filled-out by others, often
falsely, 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 testimonial
allegations of voter fraud and forgery.

B. No Evidence Incriminating McDonough or Any Other BOE Employee

42. 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 did
Lambertsen, Mirch or Bugbee or any other person.

C. Supreme Court Decision and Order/Judgment: Voter Fraud and Forgery

43. 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 the
affidavits/testimony of the voters challenging their validity,
including Brian Suozzo, Jesenia Acevedo, Jessica Boomhower and
Richard, and Karen Gushlaw, who also disputed the validity of the
AAB and/or signatures on the AB envelope signature. The Court
also accepted the credibility of the affidavits of six (6) voters
disputing 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 she
testified that it was her signature on her AB and AB envelope,
even though she did not complete the AAB and it contained some
false information. Importantly, the Supreme Court erred on the

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 side of enfranchisement in ordering the AB vote of Anna Berrios
counted although the evidence proved that someone else had
entered 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 resulted
only 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 the
Berrios vote counted.

46. In summary, the irrefutable testimonial and documentary

evidence showed that most of the voters in question were
defrauded into thinking that they could vote simply by signing a
document presented and/or that their purported AAB, AB and/or
AB envelopes contained false information and/or forged
signatures.

47. Again, that evidence implicates certain of the named Democrat

incumbents and other party workers in the commission of such
criminal conduct and they should therefore be the targets of this
criminal investigation and prosecution.

DISQUALIFICATION OF DISTRICT ATTORNEY:

THE SPECULATION OF POLITICS AND APPEARANCE OF IMPROPRIETY.

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

49. Subsequently, by Order dated September 28, 2009, the County

Court determined that the disqualification of “the District Attorney
and his staff from acting in this case based on the speculation of
politics and the appearance of impropriety” was appropriate and
ordered the appointment of the SDA “for all purposes in this
matter …”

50. It is not yet known whether the District Attorney properly

abdicated his important constitutional and statutory duties but,
without waiving any challenge, a presumption of regularity is
presently made in view of the County Court Order.

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 District Attorney’s Involvement with Case after Disqualification
51. 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 its
analysis of DNA samples; and (4) having conversations with
McDonough and McInerney. It is also likely that the DA and/or
his staff: (1) provided preliminary instructions to the GJ before
which this matter was presented; and (2) presented other cases
before that same GJ.

52. It is respectfully submitted that the involvement presents serious

ethical issues and legal impediments to the prosecution of the
matter 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 Democrat

Incumbents and Party Workers.

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

from Couch in Return for Immunity from Prosecution
53. After the Lambertsen hearing, the SDA purportedly began an
investigation with the assistance and formidable resources of the
New York State Police (NYSP).

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

All Democrat Incumbents Refused NYSP Interview

55. As reflected in the NYSP Lead Logs, however, all of the Democrat
incumbents retained counsel and refused to be interviewed by the
NYSP at that time.

Democrat and WFP Workers Agreed to NYSP Interview and Gave Statements
56. In addition to Mirch and Bugbee, Democrat party workers
DeFiglio and Aldrich as well as WFP Vice-Chair J. Brant Caird
all agreed to be interviewed and give written statements to the

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

57. In sum, DeFiglio incriminated himself, McInerney and un-named

others by general admissions of criminality (apparently not being
asked to give more specific facts) while Aldrich and Caird denied
any personal involvement, responsibility or knowledge of any
illegal activity or specific evidentiary fact and incriminated certain
Democrat incumbents/workers by implication, as discussed below.
WFP organizer Sara Couch retained counsel and later agreed to be
interviewed and give a written statement but only after the SDA
gave her immunity from prosecution. She similarly denied all
personal involvement, responsibility or knowledge of any illegal
activity or specific evidentiary fact but incriminated Brown and
LoPorto with allegations of implied admission by hearsay
statements 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 Workers

58. 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 a
result of Democrat activity and a private investigation revealed that
many voters did not obtain, complete or cast an AB. A copy of his
affidavit is attached as Exhibit 7.

C. Bugbee Deposition Incriminating Democrat and WFP Workers

59. 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 affidavit
is 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 is
retrieved in person from the [BOE], a person who is designated on
the 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 the
accountability of that [AB] or who the actual person that the [AB]
is turned over to. On the day prior to the election I would estimate
that at least one hundred [100] people were in and out of the
[BOE] for various purposes, one of which was the retrieval of
[AB].”

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 61. Bugbee’s statement merely reflects the reality of political party
voter activism, i.e. candidates and/or party workers often “get out
the vote” by obtaining, delivering and filing for prospective voters
their registration forms, AAB, AB and AB envelopes.

62. Yet again, neither Mirch nor Bugbee incriminated or implicated

McDonough 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 his
experience 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 that
McDonough was involved in the alleged voter fraud or forgery.

D. Couch Deposition Incriminating Brown and LoPorto

64. In her October 22, 2009 affidavit, Couch, among other things,
stated that on primary day LoPorto furtively gave her a folded
newspaper covering about thirty (30) AB which she took to the
BOE 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 and
handed 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, Brown
and McDonough had at LoPorto’s restaurant after the alleged
voter fraud was publicized, including: (a) Brown’s incriminatory
statement that he obtained Welch’s permission to list him as the
designated person to receive some of the forged AB and his
request that the WFP issue a press release blaming Mirch for the
voter fraud controversy; and (b) McDonough’s alleged comments
about the adverse political effect that the matter would have on his
office and his desire that the meeting not be recorded.

67. It must be noted that the comments allegedly made by McDonough

at the LoPorto meeting are at best ambiguous hearsay statements
that, 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 is
believed that the SDA has and/or will interpret those innocuous
comments as admissions of guilt.

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E. DeFiglio’s Affidavit Admitting Voter Fraud and Forgery and Incriminating
McInerney in Illegal Conduct
68. In his November 6, 2009 written statement DeFiglio admitted that
he obtained AAB by defrauding voters and alleged that
McInerney 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 fraudulently
obtaining AAB from public housing voters who were targeted
because “they are a lot less likely to ask questions” later and that
he had been involved in such outrageous conduct for decades with
other unnamed party members. A copy of his affidavit is attached
as Exhibit 10.

69. Specifically, DeFiglio stated that on about late August/early

September 2009, he, McInerney and another went to Griswold
Heights public housing and “[w]hen we obtained the [AAB] we
just had the residents sign for [an AB] and we told them that we
would take care of getting them [an AB]. On that date and in
previous elections that I have worked on it was common
knowledge 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 don’t know what happened
to them after he left. I did not handle the [AAB] once they were
signed. 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 who
are 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 in
the 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 were
done …”

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 prosecute
McDonough. Parenthetically, McDonough has been the BOE
Democrat Commissioner for only the past eight (8) years and was
preceded by Rensselaer County Democrat Party Chairman Thomas
Wade. Therefore, it is expected that Mr. Wade, Bugbee and other
past and present Democrat and Republican employees of the BOE
will refute his supposition that they were involved in any AAB/AB

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

72. Ironically, DeFiglio correctly identifies the criminal activity that is

a matter of significant public interest and should be the focus of
this criminal, i.e. the defrauding of targeted public housing voters
and related forgery. Although it appears the SDA misses that
point, it is unlikely that those defrauded voters or the public will.

F. Caird Affidavit Incriminating Brown

73. In his November 11, 2009 written statement, WFP Vice-Chair
Caird denied obtaining any fraudulent AAB or AB and in
discussing 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 to
use [Welch’s] 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 18
counts 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 Workers

74. In his November 13, 2009 affidavit, Aldrich stated he never
obtained any of the nineteen (19) AB purportedly released to him
and did not know who filed them. A copy of his statement is
attached as Exhibit 12.

75. Also, he stated that: on September 12, 2009 he met Democrat

candidates LoPorto, Campana and Brown, as well as party
workers McInerney, DeFiglio, Robert Martiniano and Daniel
Brown at the Griswold Heights public housing in Troy; McInerney
directed that he go with Daniel Brown to the Corliss Park public
housing to obtain AAB from prospective WFP voters where they
obtained 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, the
testimony of the voters and the affidavits of those party workers
show that certain Democrat incumbents and/or party workers who
obtained and/or filed the purported AAB and AB were allegedly
involved in defrauding the voters they targeted as “friendly” and/or
later entered false information and/or signatures on those
documents.

14
 77. Therefore, all of the relevant credible evidence should have taken
the 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 credible
testimonial or documentary evidence obtained by Mirch before the
Lambertsen 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 is
a matter of significant public interest. Therefore, public policy, the
integrity of the elective process and the interests of justice require
that such matters be properly investigated and that the guilty be
held responsible for their acts.

80. In that regard, the testimonial and documentary evidence relative

to the Lambertsen action clearly implicates the named Democrat
incumbents and Democrat and/or WFP workers in the alleged
commission of fraud and/or forgery by obtaining, completing
and/or signing the purported AAB and AB of numerous WFP
voters who never cast an absentee vote in the subject primary
election.

81. Therefore, the evidence as well as public policy, the integrity of

the elective process and the interests of justice dictate that the
investigation and prosecution of this matter be properly conducted
by a qualified prosecutor who has no conflict of personal or
political interests and seeks to hold responsible only those people
who defrauded voters to obtain their AAB and/or forged their AAB
and 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 treated
in any investigation and/or prosecution. It is well established that
the prosecutor’s significant constitutional and statutory duty is not
to indict or convict, but “to do justice” and prosecute cases without
the prejudicial effect of any conflicting personal interest or
political influence.

83. The integrity of the criminal justice system and the public’s trust in
it are particularly at risk in cases of alleged criminal conduct
related to political party activism because District Attorneys cannot

15
 completely detach themselves from the political process upon
which they rely for their candidacy and election. That is obviously
the reason that District Attorney Richard McNally abdicated his
significant constitutional and statutory duties and disqualified
himself and his staff from this case.
84. Unfortunately, the SDA has failed to appreciate these principles
and violated his duty by prosecuting McDonough as discussed
instead of those responsible for the alleged voter fraud, solely to
further his conflicting personal and/or political interests.

85. Therefore, the SDA should and must be disqualified from this
matter because of expressed conflicting personal interests and the
speculation of politics that present, at the very least, an
unavoidable 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 IMPROPRIETY
THAT 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 justice
mandate that a prosecutor exercise impartial fairness at all stages
of any criminal investigation or prosecution, including the GJ
presentation, because “it is common knowledge that an
indictment is hardly an innocuous event. An indictment can
destroy a person’s health, reputation, and career.” Prosecutorial
Misconduct, 2d edition, Bennett L. Gershman, (citing, United
States 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 his
duty to exercise impartial fairness in the investigation and
prosecution of this matter and thereby also violated McDonough’s
right to due process and a fair trial.

88. In summary, the SDA: (1) focused his investigation on

McDonough despite the absence of any allegation against him and
targeted him for prosecution without conducting a proper
investigation and in the absence of any credible evidence
incriminating him in the commission of the alleged voter

16
 fraud/forgery, (2) obtained the self-exculpatory statement of
McGrath, a primary suspect against whom a prosecution could
have easily been brought, that materially contradicted the
substantial credible testimonial and documentary evidence and
falsely incriminated McDonough in return for the protection of a
purported Cooperation Agreement; and (3) after threatening to
prosecute BOE employee Kevin O’Malley for perjury, apparently
elicited his testimony falsely incriminated McDonough in return
for immunity from prosecution.

89. The SDA then obtained an indictment against McDonough for the
forgery 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 defendants
in return for immunity from prosecution for substantive crimes
and/or perjury.

90. In short, without any objective, credible accusation or evidence

implicating McDonough in the participation of the subject voter
fraud and forgery, the SDA immediately made him the primary
target of an investigation and then obtained an indictment against
him for crimes he did not commit or have any motivation to
commit.

91. On the other hand, in ignorance of all the substantial testimonial

and documentary evidence implicating certain of the named
Democrat incumbents and/or party workers in the alleged voter
fraud and/or forgery of AAB, AB and AB envelopes, the SDA
failed to properly investigate or prosecute any of them, except
LoPorto.

92. Parenthetically, as discussed by McDonough, Democrat incumbent

LoPorto is considered by many within the Democrat Party as a
controversial, marginalized figure. In any event, he is not viewed
as 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 prosecuted
by the SDA to the benefit of the Democrat party in lieu of
McGrath, Brown, Campana, McInerney or DeFiglio. LoPorto
may also have been selected to give the pretense of a proper
investigation and prosecution. However, any such attempt is
unmasked by the irrefutable facts and the appearance of
impropriety of this prosecution remains.

17
 94. For all of the reasons discussed, the SDA’s conduct in the
investigation and prosecution of McDonough was improper and in
violation of his constitutional rights as well as the prosecution
function and duty to do justice.

II. McDonough made Focus of Investigation without any Accusation and

Failure to Conduct a Proper Investigation.

A. McDonough made Focus of Investigation without any Accusation

95. None of the Democrats or WFP workers involved in obtaining the
AAB incriminated McDonough in the subject voter fraud although
their statements reflect that they were asked about him. So, that
evidence could not possibly have taken the SDA to the prosecution
of McDonough as he professes (“I went where the evidence took
me”) for one undeniable reason: There was absolutely no evidence
implicating McDonough in the alleged crimes. There were not
even any allegations made against him. There is also a simple
reason for the absence of any evidence or claim: He was not
involved in the acts.

96. Furthermore, the irrefutable facts show that the SDA conducted
little 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 the
alleged 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 and
documentary evidence upon which to base a prosecution) and
McInerney (whom several of the party workers incriminated).

First Police Interview of McDonough

97. It is clear that when NYSP Investigator Ogden interviewed
McDonough on November 19, 2009 the SDA had already
targeted him for prosecution.

98. At that time, McDonough was given Miranda warnings but the
only topics discussed with him were: (1) the AAB filed by Brown
the day before the primary and the AB issued on them that were
delivered at his request to McInerney; and, (2) the LoPorto’s
restaurant meeting discussed in the Couch, Caird and Aldrich
statements.

99. Specifically, although there had been no allegations that he was

involved in any alleged fraud/forgery McDonough was not asked
anything about the AAB filed by McGrath, the activity of any

18
 other person regarding the subject AAB or AB or any allegation
contained in the statement of DeFiglio, Couch or Caird. Simply
put, McDonough was interviewed as a suspect, not as a
prospective witness. A copy of the typewritten statement he
executed at that time is attached as Exhibit 13.

Second Police Interview of McDonough – Perjury Entrapment Tactic

100. Later, Inv. Ogden asked McDonough to meet him “to clarify” a
few things and he did so on December 7, 2009. At that time, the
investigator told McDonough “they” knew he had delivered the
AB issued on the AAB filed by Brown to McInerney and
understood that he did not want to talk about him because they
were close friends.

101. Therefore, whether McInerney was present when the AB were

delivered to his office at Brown’s request was not a material fact at
that time and the questioning of McDonough about it was simply a
“perjury trap” set in absence of legal counsel.

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

No Allegations or Evidence Incriminating McDonough

103. In any event, up until that time, there were still no allegations or
evidence incriminating McDonough in the voter fraud or forgery
of AAB/AB/AB envelopes. Clearly, therefore, the evidence could
not have taken the SDA to the investigation or prosecution of him.

104. Furthermore, as stated, the statements allegedly made by

McDonough at the LoPorto meeting are not, as a matter of law,
admissions of guilt. At worst, they are simply statements
reflecting his concern about the possible political and professional
ramifications of the criminal actions of others and that he did not
want to be brought into the matter by implication. Nonetheless,
those comments were obviously recorded in the witness statements
by the police for the inference of guilt. In any event, any
supposition that McDonough had knowledge of the alleged voter
fraud/forgery is sheer folly.

Candidates/Party Workers had Personal/Political Interests in Election

105. It is obvious that the above-named incumbent Democrats and party
workers who sought to obtain absentee votes for City of Troy

19
 candidates in the WFP primary including Brown, McInerney,
Dan Brown, LoPorto, Campana, DeFiglio, Aldrich, Welch and
Couch had personal and/or political interests in the outcome of the
primary elections.

106. Also, as mentioned below, McGrath had openly said that he

intended to “beat Mirch at his own game” and take the WFP
endorsement while Brown insisted that McInerney and others
help him win the WFP primary so that he could garner the largest
number of votes possible in the general election to establish his
viability to be the Democrat candidate for the City of Troy mayoral
election this year.

107. Unlike those candidates and party workers, however, McDonough

did 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 clerically
assisted voters, his party candidates/workers and others in dealing
with the elective process.

B. Failure to Conduct Proper Investigation and Obtain Relevant Evidence that would
have Incriminated Democrat Incumbents and Party Workers
108. 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) separate
occasions and give two (2) written statements as requested, not one
of the named Democrat incumbents agreed to do so. Instead, they
retained counsel and refused to be interviewed or give any
statement.

110. McGrath was the first Democrat incumbent to later agree to be

interviewed and give a written statement, but he did so only after
being given the benefits of a purported Cooperation Agreement
which, as discussed, was no more than a charade upon which to
commence the scapegoat prosecution of McDonough in lieu of the
other Democrat incumbents and party workers clearly incriminated
by substantial credible evidence.

111. Furthermore, as discussed, although Democrat worker DeFiglio

voluntarily agreed to be interviewed and gave a written statement
admitting his involvement in the subject and past voter fraud and
forgery without counsel, the SDA never obtained or attempted to
obtain any other specific evidence that would certainly have
implicated the Democrat incumbents and/or other party workers

20
 involved in this matter. The SDA also failed to prosecute DeFiglio
upon the proposition that he is only a low-level party worker. In
any event, however, it is obvious that he committed the admitted
criminal 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 others
that the SDA did not obtain for the reasons discussed.

112. Also, the SDA similarly accepted without question the voluntary
statements of Democrat Aldrich and WFP members Caird and
Welch although contradicted in material part by other testimonial
and documentary evidence. The SDA also similarly failed to
obtain any other relevant information from them, and, specifically,
any evidentiary facts about the identity and acts of others involved
in the conduct.

113. Lastly WFP organizer Sara Couch, who possessed and filed about
thirty (30) forged AB, agreed to be interviewed and gave a written
statement only after the SDA gave her immunity from prosecution.
She then incriminated only LoPorto while claiming complete
ignorance and implying that McDonough should have known what
she did not.

III. Dereliction of Duty to Properly Investigate and/or Prosecute Democrat

Incumbents and/or Party Workers.

114. As stated, public policy, the integrity of the elective process and
the interests of justice as well as the public’s trust in the integrity
of the criminal justice system dictate that the investigation and
prosecution of this matter of significant public interest be
conducted properly and that the guilty held responsible, if possible.
Unfortunately, it is clear that the SDA will not prosecute those
other people who committed the alleged voter fraud and forgery of
AAB, AB and AB envelopes.

A. Blind Acceptance of Veracity of WFP Workers’ Statements

115. In fact, the SDA immediately accepted without question the
veracity of the self-serving exculpatory statements of WFP
members Aldrich, Caird and Couch, despite their participation or
complicity in obtaining, completing and/or filing the AAB/AB in
question and their interests in the outcome of the elections and the
struggle to take control of the WFP in Rensselaer County from
Mirch and other Republican Party operatives.

21
 116. In any event, the SDA did not investigate and likely does not
intend to prosecute any of them for political reasons related to the
improper prosecution of McDonough.

B. Decision to Not Prosecute DeFiglio

117. In particular, the SDA stated that he will not prosecute DeFiglio
despite his admission of having committing the alleged voter fraud
and similar crimes for years because he is a Democrat “foot
soldier”. No doubt many “low level” drug traffickers and other
“street” criminals would vote to elect the SDA if he dared ran for
the DA’s office on such a platform of authorized avoidance of
personal responsibility.

118. In any event, it is not surprising that the SDA will not prosecute
DeFiglio because his prosecution would likely open a Pandora’s
Box 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 Others
119. Otherwise, by his own admissions, DeFiglio must have a wealth of
knowledge about the voter fraud and ballot forgery that he and
others committed concerning this WFP primary and many other
elections over several decades, which likely includes the names
and conduct of his accomplices in this case. At the very least, he
has much more information about the alleged voter fraud than
contained in his statement.

120. Therefore, DeFiglio obviously could have provided further

testimonial evidence, investigative leads and useful information
against those who committed the alleged voter fraud and AAB/AB
forgery. Again, his statement cannot possibly contain his entire
knowledge of information regarding the matter. Why then did the
SDA not seek to obtain any further relevant evidence or
information from him?

121. In conducting his purported investigation the SDA simply failed to

obtain any other evidence, investigative leads or useful information
from DeFiglio in effort to prove a case against any Democrat
incumbent, party member and/or other person with whom he
committed the subject and/or similar criminal acts in the past as
admitted.

D. Failure to Obtain All Evidence from Democrat Incumbents/Party Workers

122. It is not surprising that the SDA also failed to obtain any other
evidence, investigative leads or useful information from any other

22
 witnesses or prospective defendant that he does not intend to
prosecute, including McGrath, in effort to prove a case against any
Democrat 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 to
be a rhetoric question in view of the relevant facts, credible
evidence and his related conduct.

E. Failure to Investigate Democrat Incumbents and/or Party Workers

124. In fact, the SDA’s time records show that he conducted absolutely
no investigation against any Democrat incumbent or party worker
implicated by the voters, DeFiglio and other credible testimonial
and documentary evidence in the approximate six (6) month period
from the date of his appointment until he entered into said
purported Cooperation Agreement with McGrath. A copy of the
SDA’s interim billing record for the dates September 28, 2009 to
August 17, 2010 is attached as Exhibit 15.

F. SDA’s Contradictory Statements re Prosecution of McInerney and Brown

125. 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 SDA’s otherwise inexplicable

actions, 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 that
the SDA intended to improperly prosecute McDonough (and
perhaps LoPorto) in lieu of any Democrat incumbents or party
workers for the benefit of his conflicting interests and the
Democrat Party of which he is a member and previously sought the
nomination for the Office of District Attorney.
127. It is therefore not surprising that in about November 2010 the SDA
contradicted his prior representation and told counsel that Brown
and McInerney would not be prosecuted, based upon the stated
pretense that there was not sufficient evidence to do so.

G. Failure to Prosecute Brown and McInerney despite Credible Evidence

128. It is respectfully submitted that the SDA’s position that there is
sufficient evidence to prosecute McDonough and LoPorto but not
McInerney, Brown or any Democrat incumbent or party

23
 worker implicated by the substantial credible testimonial and
documentary evidence as having been directly involved in the
commission of the alleged voter fraud and/or forgery of AAB, AB
and AB envelopes strains all acceptable bounds of credulity and
propriety.

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

H. Pretentious Threat of Prosecution and Refusal to Plea Bargain/Grant Immunity is

Inherently Contradictory and Prevents Others from Exculpating McDonough
130. Soon after appointment, the SDA informed counsel for
McDonough, LoPorto, McInerney and/or others that there would
be no negotiated disposition with any potential defendant unless it
included a felony guilty plea. Incredibly, the SDA has maintained
that position despite the fact that he later professed that the
evidence was insufficient to prosecute any of those potential
defendants.

131. It is not surprising that the SDA’s position is inherently

inconsistent not only with his failure to conduct a proper
investigation but also with his later representation that there is not
sufficient evidence to prosecute McInerney, Brown and/or
others. Rather, it appears to be yet another instance of his
inexplicable conduct that has been constant in the investigation and
prosecution of this matter. Simply said, at every turn, it became
more apparent that the SDA was acting as if the prosecution was a
game to be played according to his rules of engagement.

132. Furthermore, the SDA’s aggressive plea bargain posture, together

with the pretentious threat to prosecute others, has and will
continue to have the likely desired effect of precluding any of
those potential defendants from giving testimony that would
exculpate McDonough or otherwise assist his defense. Unless
given immunity, they obviously will remain silent as he is
prosecuted, as they have done so far.

Refusal to Grant Immunity to Prospective Witnesses

133. 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 the
GJ about the daily and customary practice, policies, procedures

24
 and protocol of the BOE in regard to the completion of AAB
presented for filing by candidates, voters and others.

134. It should be noted that the SDA refused to grant Bugbee immunity
to testify before the GJ even though he does not intend to prosecute
any other persons, has no power to prosecute Bugbee, has no
evidence incriminating Bugbee and repeatedly professed that he
would 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 will
prevent them from being called as a witness by McDonough to
give exculpatory or other evidence on his behalf.

136. Therefore, it appears that the prosecutor’s position of threatening

to prosecute other Democrat incumbents and party workers whom
he actually will never prosecute is designed to further his improper
prosecution of McDonough. It cannot be genuinely argued that the
interests of justice and integrity of the criminal justice system are
served by such “sharp” and pretentious prosecution tactics.

Recent Admission to Court that No Others will be Prosecuted

137. Recently, albeit with difficultly, the SDA finally admitted to the
Court what had been obvious all along: no others will be
prosecuted for the alleged voter fraud/forgery. His rather satirical
caveat that “in my mind I would like to think that it’s not done”
would be truly comical but for the seriousness of baseless
prosecution of McDonough.

IV. Targets McDonough for Prosecution without Evidence, Improperly Meets

McDonough 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 Aldrich
interviews and statements show that by the time they were done
the SDA had already made McDonough a target for prosecution,
despite the fact that he had no involvement in the fraud or forgery
of 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 and
record in those witness statements any of McDonough’s alleged
ambiguous and irrelevant hearsay statements or their specious
suppositions except for the inference of criminality.

25
 140. The fact that the SDA had determined to prosecute McDonough at
an early stage in his investigation, despite the lack of any
allegation or credible evidence of his involvement in the alleged
voter fraud is also evident from the fact that the police gave him
Miranda warnings before his interviews.

Declaration that “I Went Where the Evidence Took Me” is Belied by Conduct,
Statements, Credible Evidence, Logic and Common Sense
141. Amid much speculation and criticism regarding the conduct of this
prosecution it is more than ironic that the SDA has repeatedly
professed in conversation, court conference and “press conference”
speech 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 it
would have necessarily taken him in the proper exercise of his
official duties and professional responsibilities. Frankly, it would
have been impossible for the SDA to get to where he went if he
had simply followed the evidence. It is clear from the facts that the
SDA 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 to
develop the relevant evidentiary facts and ignored the
unimpeachable 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 conclusion
that the SDA’s investigation and prosecution of McDonough is
based solely on conflicting personal/political interests and the
speculation of politics which present an improper appearance of
impropriety.

144. It seems that the SDA has adopted a pattern of crying wolf with
pretentious magnanimity to mask the nature of his actions and this
case: 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 Personal

Interests and Threatens Prosecution
145. Also, almost two (2) months after McDonough’s second interview,
the SDA met with McDonough at the State Police station. The
relevant facts of that January 27, 2009 meeting are set forth in the
affidavit 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
 It is most evident from his failure to give Miranda warnings and
his demand that McDonough immediately tell him “all about what
he and his friends did” at their “forgery factory” without any
regard for his Fifth or Sixth Amendment rights. It is also obvious
from 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 Supreme

Court law clerk with more than 25 years experience in criminal
practice, expected that McDonough would confess to being the
ring-leader of a “forgery factory” defrauding voters? Is it to be
believed that the SDA would have no concern about meeting with
a person he had clearly targeted for prosecution without legal
counsel 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 his
intent to prosecute McDonough and disclose his conflicting
personal interests for doing so.

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

150. It is well settled that a prosecutor has a higher duty than a police
officer to ensure, honor and protect the constitutional rights of a
target, suspect or defendant and the SDA violated that duty by
meeting with McDonough.

151. The inescapable conclusion is that the SDA met with McDonough
simply to express his personal interests for prosecuting him. More
importantly, McDonough holds that belief and, regardless of its
merit, the SDA’s otherwise inexplicable comments and threats
present an actual conflict of interests and improper appearance of
impropriety that has irreparably tainted his investigation and
prosecution of this matter.

152. That conflict of interest and appearance of impropriety, together

with the speculation of politics inherent in his conduct has
irreparably prejudiced McDonough’s due process rights and
requires his disqualification and a dismissal of the Indictment.

C. Prejudicial Effect of Threat of Prosecution and Other Conduct

27
 153. As stated, the facts appear to show that the SDA selected
McDonough as a scapegoat for prosecution in lieu of those other
Democrat incumbents and/or party workers implicated by the
evidence as being involved in the alleged voter fraud/forgery.

154. Furthermore, even if the SDA’s breach of his duty to deal fairly
with McDonough did not result in any obvious harm that does not
mean that it had no prejudicial effect.

155. To the contrary, among other things, it resulted in an Indictment

and had the substantial prejudicial effect of preventing
McDonough from exercising his right to testify before the GJ as he
had intended because he reasonably believed that the SDA
intended to maliciously prosecute him for crimes that he did not
commit based solely on his conflicting personal interests.

156. Notably, McDonough’s prospective testimony would have

incriminated McInerney and Brown in the alleged voter fraud and
forgery and he firmly believes that the SDA did not want any such
evidence presented to the GJ. Therefore, for the reasons stated,
McDonough expected that the SDA would treat him unfairly in the
GJ.

V. Gives Benefits of Purported Cooperation Agreement to McGrath in Return

for False Accusation against McDonough that is Contradicted by Credible
Testimonial and Documentary Evidence.

A. SDA Enters Purported Cooperation Agreement with McGrath Immediately after

Threatening to Prosecute McDonough for Forgery
157. Perhaps the most glaring indication of the SDA’s conflicting
interests for prosecuting McDonough is the fact that later on the
same day that he told McDonough he intended to prosecute him
for forgery he had a brief telephone conference with McGrath’s
attorney and thereafter entered into a purported “Cooperation
Agreement” with McGrath after only a few more brief telephone
conversations (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, he
expended and 0.40 hr. in preparing a draft of the purported
agreement). See, Exhibit 15.
158. That fact is even more interesting because, as stated, until then
there had been no evidence implicating McDonough in the alleged
voter fraud. Still, the SDA threatened McDonough with
prosecution for his “forgery factory” even before he talked with
McGrath’s attorney or McGrath gave his statement or made those
accusations.

28
 159. Specifically, the SDA’s time records show that from the date of his
appointment on September 28, 2009 to the date of his meeting with
McDonough on January 27, 2010, he spent little or no time
investigating any other prospective target, but within only fifteen
(15) minutes to one (1) hour of threatening to prosecute
McDonough, entered into a purported Cooperation Agreement
with McGrath that shielded him from prosecution in return for his
preposterous written statement in which he: (1) completely
exculpated himself, (2) accused McDonough of forging two AAB
that benefited only him, and (3) speculated that McInerney, Brown
and Dan Brown were responsible for the alleged voter
fraud/forgery without providing any evidentiary facts.

160. Thus, the SDA entered into the purported Cooperation Agreement
with 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 from
prosecution and obtain accusations upon which to base his
improper prosecution of McDonough.

162. Most interesting, the facts establish that the SDA knew McGrath
would accuse McDonough of forgery even before his attorney was
called 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 with
McGrath in early February 2009 but waited about six (6) weeks
before obtaining his accusatory written statement to give the
appearance of an actual investigation.

164. In any case, the SDA’s time records show that he did no
substantive work in the investigation of the case from the time he
met with McDonough on January 29 until March 12, 2010, when
he prepared to interview McGrath.

B. Conflicting Interests for Giving McGrath Cooperation Agreement

165. 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 has
substantial family, social and political ties in the communities of
the City of Troy and County of Rensselaer.

29
 166. It is also clear that the SDA does not intend to investigate or
prosecute the person known to have assisted McGrath in his
activities and could potentially provide incriminatory information
against him and/or others, i.e. Rick Mason.

C. McGrath’s Written Statement Pursuant to Cooperation Agreement

167. On March 29, 2010 McGrath gave a written statement to the SDA
pursuant to said “Cooperation Agreement”. A copy of the same is
attached as Exhibit 16.

True Nature of Cooperation Agreement and Statement: False Accusation against

McDonough 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, Brown
and Dan Brown were “behind the fraudulent votes”.
Parenthetically, McGrath is the only person who benefited from
the forgery he alleges McDonough gratuitously committed for his
benefit without any alleged need or request.

169. In short, after one brief conversation, McGrath failed to accept

responsibility for any alleged criminal conduct, accused only
McDonough of forgery and effectively avoided ever having to be
called as a witness against any of his compatriots implicated by the
credible evidence as being involved in defrauding voters on the
street and/or forging their AAB, AB and/or AB envelopes. All
with the unquestioning blessing and blind faith of the SDA who in
return granted him immunity from prosecution (or reduced
charges).

170. Not surprisingly, in obtaining McGrath’s statement in return for

the benefits of said purported Cooperation Agreement, the SDA
obviously directed him to discuss the AAB, AB and/or AB
envelopes that, together with the testimony of voters (and likely
DNA), incriminated him in the alleged fraud and forgery.
However, in his self-exculpating statement McGrath materially
contradicted the credible testimony of the voters and documentary
evidence and exposed the fallacy of the SDA’s position in
accepting his purported “cooperation” in return for those benefits.

Involvement with AAB/AB and Other Democrat Incumbents/Workers

171. A summary of McGrath’s statement concerning the purported
voter AAB, AB and AB envelopes that he obtained, completed
and/or filed is set forth as Schedule B.

30
172. In his statement, McGrath confirms that on September 12, 2009,
McInerney, Brown, Campana, LoPorto, Galuski, Martiniano
and Dan Brown were at Griswold Heights public housing complex
to obtain AAB for the WFP primary and, later that day, he met
Dan Brown and Aldrich at the Corliss Park public housing
complex where they told him they had obtained several AAB and
were introduced by him to Marc Welch.

Statement Contradicted by Credible Evidence

173. As stated, however, all of the mentioned voters, except Lloyd
Newell, materially contradict McGrath’s assertions in their
affidavits/testimony. A summary of their statements is set for the
in 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 sufficient
evidence 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
McGrath’s statement in view of the substantial credible testimonial
and documentary evidence that materially contradicted it.
Nonetheless, he accepted it as a basis to prosecute McDonough.

Self-Serving False Accusations against McDonough

176. 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 AAB
filed by Brown) he went to the BOE and was present in
McDonough’s office when McDonough and Brown talked about
the need to have a person to whom an AB was to be released
entered on an AAB and took it to mean that there were blanks on
certain AAB. He states that WFP chairperson Jim Welch was
mentioned as that person and Brown called him but he does not
recall Brown mentioning any specific number of AAB to Welch.

177. He also states that in the meeting: McDonough or Brown

mentioned they were talking about thirty-five (35) AAB; it was
clear to him that it would be impossible to get AB for all of those
AAB; and, that he was “not sure who had the AAB at that time
because [he] saw them so [he] told them both to make sure that
they didn’t mess with the voters from District l. [He] specifically
mentioned Marc Welch and told them that his excuse was that he
was a diabetic. [He] knows his [AAB] was in the pile because he
saw it on Saturday when he met with Dan Brown and Tom Aldrich
at Corliss Park.” McDonough then told them to leave “because

31
 [they] were candidates … [He] took that to mean that [Welch’s]
name would be placed on the release to line on the 35 [AAB] that
[they] were speaking about … and he didn’t want us there when it
happened.”

178. It is not surprising that McGrath claimed to have had such sharp
hearing, sensibility and recall about Marc Welch because their
relationship and his family name did not deter that voter from
giving a sworn statement that would alone, if believed, clearly be
sufficient evidence to convict McGrath of alleged fraud and
forgery.

Useless Supposition against McInerney

179. McGrath asserts that later the same day, he called McInerney “to
make sure that the friendly’s that were solicited in [his district]
actually received their [AB] … because of what [he] had heard in
McDonough’s office … Mac told [him] that 2 or 3 of them were
going in. [He] took that to mean that 2 or 3 voters could not be
located to fill out their [AB] but that the ballots would be sent
into the BOE anyway. [He] wasn’t happy about the votes going
in but can’t remember what [he] said to Mac.”

McDonough’s Alleged Hearsay Statement

180. Lastly, McGrath stated that sometime in September 2009 after the
allegations of voter fraud were made public, he asked McDonough
what happened with the AB and McDonough said that “they
fucked up”, which he believes meant McInerney, Brown and Dan
Brown. He added that he believes they are behind the fraudulent
votes and that McDonough could have stopped the whole thing
when Brown and he were in his office.

181. Even if McDonough stated his thought about what people might
have committed the crimes alleged based upon his scant
knowledge of their activities in trying to “get out the vote”, any
such comments have been purposely mischaracterized and taken
out of context by McGrath. More importantly, as a matter of law
they are no more than inadmissible hearsay statements, not
admissions of guilt as implied.

D. Purported Cooperation Agreement Provides No True Benefit to State

182. Nonetheless, at that time, the SDA blindly accepted the veracity of
McGrath’s patently incredible, uncorroborated and self-serving
exculpatory statement and shielded him from prosecution in return
for his uncorroborated accusations against McDonough.

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183. In fact, the SDA later stated that he entered into a “federal-style”
Cooperation Agreement with McGrath. If that is the case,
McGrath should have been required to first truthfully disclose all
relevant evidence and fully accept responsibility for his own acts in
order to ensure the integrity of the process and that both parties
obtained the benefit of the bargain. Public policy, the
constitutional rights of the accused and the basic principles of
criminal justice require no less.

184. Under the circumstances, the SDA’s acceptance of McGrath’s

statement as a complete and truthful disclosure of his activities and
knowledge upon which to base a prosecution against McDonough
and give him the benefits of a cooperation agreement is shocking
to the conscience, insulting to the intellect and a mockery of
criminal justice.

185. If McGrath’s statement was a complete and truthful disclosure of

his relevant activities and knowledge there was no reason for any
cooperation agreement in the first place, no reason for him not to
have come forward as a witness long before then without the need
for any such agreement and, most importantly, no reason for the
State to shield him from prosecution for the criminal responsibility
that he denies. In any event, the State obtained no benefit from the
bargain because it otherwise had a right to his exculpatory
statement.

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

187. Furthermore, McGrath’s credibility will be impeached by

substantial testimonial and documentary evidence that is
contradictory of his statement and otherwise implicates him in the
alleged criminal activity. The SDA will also be required to
disclose the benefits given to McGrath in return for his
incrimination of McDonough for impeachment of his credibility.

188. As a matter of fact, the SDA conceded that McGrath’s statement is

not truthful by charging the GJ that as a matter of law McGrath
was an accomplice to the forgery that he accused McDonough of
committing. It is truly ironic that the SDA exposes the true nature
of McGrath’s statement as well as his own conduct by that simple
instruction.

33
189. Therefore, the SDA’s acceptance of McGrath’s statement is yet
another indication that his prosecution of McDonough based upon
conflicting 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 Statement

to be Considered “Falsus in Uno Falsus in Omnibus”
190. Most importantly, McGrath’s statement must be considered not
true to the extent that he completely exonerates himself from any
responsibility and contradicts the irrefutable and credible
testimonial and documentary evidence. That could not have been
missed by the SDA when he accepted from McGrath it in return
for the benefits of the purported Cooperation Agreement.

191. Therefore, the dictates of public policy, constitutional law and

ethics required that the SDA consider McGrath’s entire statement
as incredible and refuse to accept it as valued consideration in
return for the benefit of any Cooperation Agreement.

192. Public policy must require that any statement offered in

consideration for the benefits of a Cooperation Agreement be
determined by the standard of “falsus in uno, falsus in omnibus”
because the state can obtain no true benefit from a witness who
gives even partially untrue or patently incredible evidence. False
evidence, by its very nature, can be used only for illegal or
nefarious purposes and the fundamental principles of contract law
also require that any such statement be a thing of value. Therefore,
a statement that is not completely truthful can never be accepted as
valued consideration.

193. Additionally, public policy dictates that any statement given in

consideration for the benefits of a cooperation agreement must be
truthful 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 its
prosecutor, implicitly vouches for the credibility of its cooperating
witness. How can the State legitimately propose that it would be
proper and permissible to simply disregard part of the statement of
a cooperating witness that is the patently incredible or false but
accept another part thereof as truth? The inherent absurdity of the
proposition is contrary to every accepted principle of public policy
and criminal justice.

34
195. The requirement that a statement given in return for the benefits a
cooperation agreement be completely truthful also has a foundation
in the fundamental constitutional law from which the rights of the
accused as well as the duties of the prosecutor emanate.

196. A prosecutor’s paramount duty is to do justice, which includes the

impartial and fair treatment of the accused fairly at every stage of a
criminal proceeding. Furthermore, the prosecutor’s acceptance of
a witness statement incriminating another in return for the benefits
of a cooperation agreement necessarily implicates the rights of the
accused to due process and a fair trial, including the right to
present a defense, confront his accuser and be provided all
exculpatory 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 the
witness who has given such a partially incredible or false
statement? Moreover, if the skilled prosecutor concedes even
implicitly that the statement is partially false does he not
necessarily become an unsworn witness and improperly bolstering
the purportedly truthful part of the statement?

198. Suffice it to say, when a prosecutor knowingly accepts the

statement of a witness that is not ostensibly completely true in
return for the benefits of a cooperation agreement every precept of
constitutional law concerning the rights of the accused and the
duties of the prosecutor is implicated and at risk of desecration.
The potential for abuse and the unfettered creation of false
witnesses and evidence simply cannot be tolerated.

199. Lastly, the requirement that any such statement be ostensibly

completely true is implicit in the standards of ethics, and
specifically 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 testimony

may be “used” only for the part that is arguably truthful and that
the part that contradicts other credible evidence can simply be
ignored 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 as

true, then there is no case. Conversely, if it is accepted as true,
then McGrath’s conflicting testimonial evidence must be “known”
to be false. In either case, in order to “use” the purportedly truthful
portion of McGrath’s statement against McDonough, the SDA is

35
 required to split the legal and ethical hairs twice: first, for the
argument that the veracity of the statement does not have to be
considered in its entirety, and second, for the proposition that the
portion used against McDonough is not “known” to be false
because the conflicting voter testimony merely raises a question of
credibility and fact. However, the rules of law and ethics must
require more than such hair-splitting.

202. Therefore, as a matter of ethics, a prosecutor must not use the

statement of a cooperating witness that is not completely truthful.
How can he be permitted to accept as truthful one part of a
statement 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 McGrath’s statement because it was clearly
contradicted by the irrefutable evidence and therefore could not be
considered truthful in its entirety.

204. In summary, the SDA should not have accepted McGrath’s

statement as completely truthful because it is patently incredible in
material part, i.e. his denial of responsibility and contradiction of
the credible testimonial and documentary evidence. His
acceptance of it for the incrimination of McDonough in return for
the benefits of said Cooperation Agreement based on his
conflicting interests and the speculation of politics was a violation
of public policy, ethical considerations and McDonough’s due
process rights that require his disqualification from the case and a
dismissal of the Indictment.

VI. Prosecution of McDonough in Lieu of Certain Democrat Incumbents and/or

Party Workers and Refusal to Accept McDonough’s Relevant Testimony.

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

205. At the very least, the facts, credible evidence and SDA’s conduct
establish that McDonough is being improperly prosecuted in lieu
of other Democrat incumbents and/or party workers implicated by
the credible evidence, including McGrath (and incumbent and
brother of a Supreme Court Justice) or McInerney (an appointed
official and the party’s most diligent and valued worker) based
upon his conflicting personal/political interests and the speculation
of politics. Specifically, it appears that the SDA seeks to advance
his 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
 the Democrat party by avoiding the political adversity that their
prosecution would have in many upcoming elections, including
specifically, their bids for re-election and District Attorney’s race
in 2011.

207. In that regard, it cannot sincerely be disputed that the SDA gave
McGrath the benefits of a purported cooperation agreement in
return for his uncorroborated and self-serving accusations against
McDonough about six (6) months after there was more than
sufficient credible testimonial and documentary evidence to
successfully prosecute him as well as other Democrat incumbents
and workers implicated in the alleged crimes. It also cannot be
denied that in the same period the SDA did nothing to
investigation or prosecute McGrath, DeFiglio, Brown, McInerney
or any person identified by the prospective WFP absentee voters as
having defrauded them and/or committed forgery with respect to
their AAB and/or AB.

208. Again, therefore, the SDA’s prosecution of McDonough (and

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

B. Rejection of McDonough’s Testimony about Democrat Incumbents and Workers

209. At all times, the SDA specifically refused to accept McDonough’s
proffered testimony about the actions and admissions of McGrath,
McInerney and Brown that would have incriminated them in the
alleged forgery of AAB/AB. Most recently, in November 2010, he
made it clear to counsel that he would not prosecuting those others.

210. It is ironic given his acceptance of McGrath’s patently incredible,

uncorroborated and self-serving accusations against McDonough,
that in doing so, the SDA added that McDonough’s credibility had
been impaired by his interviews with the State Police.

211. It is not missed that by targeting McDonough, the SDA effectively

suppressed the testimonial evidence that he would have given
against McInerney, Brown and McGrath had he instead been called
to testify as a witness. In that respect, McDonough would have
testified to those facts set forth in his supporting affidavit and as
follows.

AAB Filed by McGrath and Completed with Information he Provided

212. On or about August 24, 2009, McGrath filed certain AAB with the
BOE that were ostensibly signed by the voters, a few of which
were not completed. At that time, McGrath told McDonough that

37
 he obtained the information from the voter and it was entered on
those respective AAB so that the AB could be issued to them.

AAB Filed by Brown and Completed with Information he Provided

213. On the day before the subject primary, Brown filed more than
twenty (20) AAB with the BOE that were ostensibly signed by the
voters but some of which were not completed, i.e. did not contain
certain requested information, for example, the dates the voter was
expected to be out of county.

214. At that time, Brown told McDonough that the voters gave that
information to the party workers who had obtained their AAB.
Brown then called Welch, told McDonough and then O’Malley the
pertinent information ostensibly obtained from the voter and it was
entered onto the respective AAB so that the AB could be issued to
the voters.

AB Issued on AAB filed by Brown, Delivered to McInerney, Handled by LoPorto

and Filed by Couch
215. Brown then told McDonough that he could not wait for the AAB
to be processed and asked if he would deliver the blank AB issued
upon them to McInerney. Later that day, those AB were delivered
to the Troy City Clerk’s office.

216. The next day, Couch filed those AB in their sealed AB envelopes
with the BOE. As stated, Couch alleges that LoPorto
surreptitiously handed her the AB in a folded newspaper and asked
her to bring them to the BOE, which she did without question
because she “trusted McDonough would do the right thing” with
them. Incredibly, she thereby implies that he somehow knew
something that she didn’t, despite the fact that she also implies that
she suspected nothing and had no discussion with McDonough or
anyone else make her believe there was anything wrong with the
AB in the first place.

217. Nonetheless, the SDA blindly accepted Couch’s inherently

suspect, self-serving and uncorroborated accusations against
LoPorto and McDonough. Yet again, such is the nature of the
purported evidentiary basis for the SDA’s prosecution of
McDonough.

Incumbents and Party Workers Told McDonough they were Working to “Get Out
the Vote” and Beat Mirch by Winning the WFP Primary
218. Also, Brown, McInerney, McGrath and others had previously
told McDonough that they, together with Dan Brown, Welch,

38
 DeFiglio, Aldrich, Caird and others were working hard to obtain
AAB and AB from prospective absentee voters.

219. McDonough never had any reason to know that the Democrat
candidates or party workers assisting them would engage in the
alleged fraud and forgery regarding the AAB or AB obtained and
filed. No one told McDonough that they were engaged in criminal
activity. To the contrary, all of the candidates and party workers
who had talked to him before the election said only that they were
working very hard to “get out” the WFP votes and “beat” Mirch at
winning the WFP primary with, among other things, absentee
votes.

220. It is also common knowledge among BOE personnel that the

activism routinely performed by party organizers, candidates and
party workers in the elective process includes properly providing
prospective voters with AAB; obtaining, completing and filing
AAB; and bringing AB to voters for their completion and
signature.

McGrath Boasted About “Beating Mirch” at the WFP Primary

221. As stated, McGrath boated to McDonough and others that he
intended to “take” the WFP primary elections for the City of Troy
from Mirch and it appeared that he did legitimately also work very
hard to do so.

Brown was Desperate to Win WFP Primary

222. It was known by Democrats and WFP members that Brown
desperately wanted to win the 2009 WFP primary election to run
for election on two (2) viable party lines in effort to get more votes
than other candidates and show that he would be the most viable
candidate for President of the Troy City Council and Mayor in the
future.

McInerney was Most Active Worker for Democrat Party and Brown
223. It was known by many Democrat and WFP members that
McInerney was the Democrat Party’s most active and valued
worker and that he assisted Brown in regard to the subject WFP
primary. Furthermore, as the most valued party worker he directed
the activities of other workers in performing various tasks for him
and candidates, including the obtaining of AAB and AB, etc.

Brown Directed McInerney to Work for WFP Primary

224. It was also known that Brown directed McInerney to work hard
for him to win the 2009 WFP primary and obtain as many AB as
possible for the reasons stated.

39
 McInerney’s Admissions to McDonough during Investigation
225. The SDA was also informed that McInerney made several
statements to McDonough during the investigation of this matter
that could be admissible against him but he stated that he did not
have any interest in obtaining the information.

Other Evidence of McInerney’s Relevant Actions

226. It is believed that the SDA has also been informed by witness(es)
that the AB issued upon said AAB filed by Brown were delivered
to McInerney later that same day.

227. It is also expected that the above-named people and others,

including McInerney, Brown, Aldrich, Welch, McGrath, Couch,
LoPorto, DeFiglio, Bugbee, Wade and/or BOE personnel could
testify to the these and other relevant facts.

228. Still, the SDA has commenced this prosecution against

McDonough and refused to prosecute those responsible for the
alleged voter fraud and forgery of AB/AAB.

VII. Failure to Consider Evidence of Past Similar Incident of Voter Forgery

Disclosed by Bugbee and/or to Request Authority to Investigate the Same.

229. Furthermore, after the subject voter fraud/forgery was discovered,

Bugbee reviewed other BOE records and identified what he
believes are numerous other incidents of similarly forged AAB
and/or AB related to the 2008 and/or 2007 elections that were
obtained, released to and/or filed by McInerney.

230. Consequently, Bugbee provided those documents to the SDA and

requested that the same be investigated. Copies of those BOE
records are attached as Exhibit 17.

231. It is expected that evidence of past AAB forgery would corroborate

DeFiglio’s admissions and incriminations against other(s) in the
alleged fraud and forgery of AAB and AB in this case. It is also
certain that the District Attorney would similarly disqualify
himself from any investigation or prosecution of any such matter.

232. Nonetheless, the SDA simply told Bugbee that he sent those
documents to the State Police but they were “not impressed” with
them. More importantly, he did not seek an Order of the Court
expanding his authority to conduct an investigation and/or
prosecution of the alleged similar past incidents of voter fraud.

40
 233. The SDA also later informed me that he did not have the authority
to investigate any past incidents of similar voter fraud/forgery and
would not consider those documents in the investigation or
prosecution of this matter.

234. Yet again, the conduct of the SDA reflects the true nature of this
prosecution.

VIII. Orchestrated “Booking” on Sealed Indictment before Filed, “Perp-walk” and

Improper Media Disclosure of Grand Jury Proceedings, Arraignment on
Sealed Indictment and Extrajudicial Statements with Enlarged “Mug Shots”.

A. Orchestrated “Booking” on Sealed Indictment before Filed and “Perp-Walk” with

Hand-cuffs and NYSP Escort
235. It is also clear that McDonough was correct in his belief that the
SDA would not treat him fairly before the GJ in view of his
orchestration of the processing of McDonough before his
arraignment on the sealed Indictment in order to ensure that: (1) he
would be paraded into Court in NYSP custody and hand-cuffs in
front of the media, which was tantamount to a prejudicial
publicized “perp-walk”; and (2) his enlarged “mug-shot” would be
available for conspicuous display at the “press conference” held
jointly with the State Police immediately thereafter. See, copies of
self-explanatory letters regarding the same, attached as Exhibit 18.

236. It is not surprising that the SDA cries wolf by claiming innocence
and blaming the NYSP for breaching an agreement not to cuff
McDonough. However, his protestations are belied by the nature
and consistency of his similar prejudicial actions.

237. In that regard, the SDA or police also gave the news media
advance notice about the arraignment on the sealed Indictment and
related press conference at which he gave a highly improper
campaign-style speech that was also indicative of his conflicting
interests in prosecuting McDonough, as discussed next.

B. Improper Media Disclosure of Investigation/GJ Presentation/Targets

238. As conceded by the SDA, this case has garnered a substantial
amount of media attention and publicity since the inception of its
investigation.

239. In fact, that media coverage has necessarily been the result of leaks
to the media by the prosecution because it certainly did not
emanate from the defense or Court.

41
 240. A significant release of information to the media arose from the
SDA’s filing of a motion for seizure of DNA from named suspects,
including McDonough. Of course, the SDA will profess that any
prejudicial media exposure was an unintended consequence of a
necessary application to possibly obtain material evidence. Again,
however, his cries of ignorance and blamelessness are
unconvincing.

241. The SDA filed the application that necessarily disclosed the names
of the potential targets of a GJ that should have remained secretive.
He did so without obtaining a sealing order despite the fact that the
investigation directly related to a matter that he intended to present
to the GJ. A sealing order would have preserved the secrecy of the
targets of the related GJ proceedings and avoided the prejudicial
media coverage that came from its disclosure. His failure to obtain
that order was either an intentional tactic calculated to result in
media coverage or an inexcusable failure to avoid the same.

242. Perhaps the most prejudicial media coverage resulted from the
SDA’s service of subpoena upon the employees of the BOE with
the caption “People of the State of New York v. Edward
McDonough and Michael LoPorto” prior to any indictment,
instead of the caption concerning the investigation of the
Lambertsen matter as reflected in the Order of his appointment and
all prior matters. That caption would have preserved the secrecy of
the GJ proceedings while the failure to do so resulted in especially
prejudicial media coverage. Again, the SDA’s conduct was either
an intentional tactic (gamesmanship) calculated to result in media
coverage, including the disclosure of the defendants as targets of
the investigation or an inexcusable failure to avoid the same.

C. Improper Extrajudicial “Press Release” Statements with McDonough’s Enlarged

“Mug Shots” Conspicuously Displayed
243. Most revealing of the true nature of SDA’s pattern of conduct is
the joint press conference he held with the State Police shortly
after McDonough’s arraignment.

244. At his press conference the SDA had enlarged “mug-shots” of

McDonough and LoPorto prominently displayed while he brazenly
made numerous clearly improper calculated and cleverly worded
statements that might impair McDonough’s right to a fair trial or
were made to advance his own personal interests, especially in
view of the months of prosecution-biased media regarding the GJ
investigation. A written copy of the SDA’s “Press Release” is
attached as Exhibit 19.

42
245. It is submitted that the SDA’s press conference statements were
misconduct and further indications of his conflicting personal and
political interests and appearance of impropriety that require that
he be disqualified from the case.

246. It is well established that the prosecution’s duty to do justice

includes the prohibition against making any extrajudicial statement
that might impair a defendant’s right to a fair trial or that is
intended to manipulate the media for the advancement of his own
personal interests. See, Prosecutorial Misconduct, 2d ed., Bennett
L. Gershman, 2010-2011, p.273 (citing Levine v. U.S. Dist. Court
for Cent. Dist. of California, 775 F.2d 1054 (9th Circ. 1985); ABA
Model Code of Professional Responsibility DR 7-107; ABA
Standards for Criminal Justice, Standard 8, et seq. [3d ed. 1991];
22 NYCRR (Tit. 22B), 806.2, 1022.17, et seq.; Publicity and
Justice, 77 A.B.A.J. 20 [April, 1991]); and, 22 NYCRR, Title
1200, Rules of Professional Conduct, Part 1200, Rule 3.6.

247. Specifically, the NYS Code of Professional Responsibility, 22

NYCRR, Title 1200, Rule 3.6(a) dictates that a lawyer “shall not
make an extrajudicial statement that he knows or reasonably
should know … will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter.”

248. In pertinent part, The Code of Professional Responsibility, Rule

3.6(b) states that such a statement is likely to prejudice materially
an adjudicative proceeding in a criminal case when it relates,
among other things, to (1) the character, credibility or reputation of
a suspect or witness; (2) the existence or contents of any admission
given by a defendant or suspect or that person’s refusal or failure
to make a statement; (3) the performance or results or any
examination or test or the identity or nature of physical evidence
expected to be presented; (4) any opinion as to the guilt of a
defendant or suspect; … (6) the fact that the defendant has been
charged with a crime unless there is included therein a statement
explaining that the charge is merely an accusation and that the
defendant is presumed innocent until and unless proven guilty.
Otherwise, Rule 3.6(c) provides, in pertinent part, that as long as
any extrajudicial statement complies with Rule 3.6(a), a lawyer
may state without elaboration: (1) the offense and identity of the
persons involved, (2) information within a public record, (3) that
an investigation is in progress, (4) the scheduling or result of any
step in the litigation, (5) request for assistance in obtaining
evidence or information, (6) a warning of danger where reason to
believe there is likelihood of substantial harm to a person/public
interest, and (7) pedigree of the accused, the identity of the

43
 investigating/arresting officers/agencies and length of the
investigation and fact/time of arrest and certain information
relevant thereto.

249. Improper extrajudicial statements are prohibited in criminal cases

in order to protect a defendant’s Sixth Amendment right to be tried
by an impartial jury and Fourteenth Amendment right to a fair trial.

250. In that regard, it is respectfully submitted that during the press

conference the SDA made numerous prejudicial statements about
the nature of the criminal investigation conducted, the purported
near-Herculean efforts and sacrifices of the New York State Police
and the nature of the alleged massive voter fraud and forgery.
Furthermore, all of those claims are gross overstatements and
mischaracterizations of fact.

251. The most obvious implied message of the SDA’s press conference,
especially with the enlarged “mug shots” of McDonough and
LoPorto prominently displayed, was that those guilty of such
outrageous crimes have been finally brought to justice.

252. Furthermore, the SDA’s pronouncements, in words or substance,

that the case was cloudy when his investigation began but is now
clear (i.e. implied statement that there is sufficient evidence to
bring the defendants to justice) and that “the voters have spoken,
the Grand Jury has spoken and the citizens will now be asked to
speak” are tantamount to statements of his opinion of the strength
of the People’s case and the defendants’ guilt.

253. During the press conference, the SDA also made a number of
inflammatory comments, references and/or implications about the
nature of the alleged crimes, the character of the defendants and
your opinions on the strength of the People’s case. In that regard,
the Supreme Court has held that the expression of opinion on the
strength of the government’s case is tantamount to a declaration of
guilt and expressly forbidden. See, Sheppard v. Maxwell, 384 U.S.
333, 86 S. Ct. 1507; DR 7-107(B)(6).

254. In fact, the very nature of his press conference was more consistent
with one that might be held after-conviction rather than at the
accusatory stage. More concerning, his press statement appeared
to be more of a campaign speech, replete with self-laudatory
compliments designed to manipulate the media for his own
personal or professional gain rather than an informative comment
on the status of a case, i.e. two people who are presumed innocent
until and unless proven guilty were merely accused.

44
 255. Therefore, the press conference must be considered yet another act
of the SDA to advance his conflicting personal and/or political
interests. Simply put, I have never seen such a display of
prejudicial media fanfare given by a prosecutor at the pre-trial
stage of any matter, including sensational homicide and other cases
of significant public interest.

256. It is well known that media statements may be used by prosecutors

as powerful weapons to prejudice the accused before trial. That
concern cannot be more succinctly stated than as follows:
“Prosecutors have been criticized for utilizing the ‘press
conference’ to celebrate with considerable fanfare a defendant’s
indictment. Prosecutors use this occasion to improperly
characterize charges, disparage defendants, disclose evidence,
and otherwise employ inflammatory rhetoric that often presumes
guilt.” Prosecutorial Misconduct, 2d ed., Bennett L. Gershman,
2010-2011, at p.273 (citing, D. Wilson, “Prosecutor in Duke Case
Disbarred by Ethics Panel,” N.Y. Times, June 2007, p.21; Stern,
“Trial By Lawyer Press Conference: Why Is Such Fanfare
Permitted?” Natl. L.J. May 6, 1985, p.17; Wise, “Disciplinary
Panel Cautions Lawyers on Pretrial Conduct,” N.Y.L.J., April 25,
1985, p.1). Unfortunately, that statement appears to aptly describe
the nature and purpose of the SDA’s press conference, in toto.

257. As stated, the SDA also obviously prearranged the “booking” of

the defendants to be done before hand-up of the sealed Indictment
so that they could be escorted by the State Police into Court while
hand-cuffed (effectively, a prejudicial “perp-walk”) and their
enlarged “mug-shot” photographs could be conspicuously
displayed at the press conference held immediately thereafter.

258. Therefore, it is respectfully submitted that the SDA should be

disqualified and the minutes of the GJ proceeding released to assist
the defendants in making appropriate motions, allow the public to
understand the true nature of the evidence and to mitigate the
prejudicial effect of the SDA’s extrajudicial statements and related
conduct.

IX. Prosecutor’s Party Affiliation, Friendship with DA McNally, Practice in

Rensselaer County and Political Ambition; McInerney’s Friendship with DA
McNally and Warning that he “Will Not Go Down Alone” if Prosecuted; and
Political Standing of other Democrat Incumbents and Workers.

A. The SDA is a Democrat, Friend of District Attorney McNally and Attorney with
an Office in Rensselaer County and Apparent Political Ambition

45
 259. The SDA is a registered Democrat, past law clerk for a Democrat
Rensselaer County Supreme Court Justice and attorney who
maintains his office in Rensselaer County. He likely has and will
continue to practice before Hon. P.J. McGrath, J.S.C., before
whom he previously practiced more routinely in the County and/or
Police Courts.

260. The SDA is a personal friend of District Attorney McNally and his
law firm gave significant monetary contributions to his past
election campaign (i.e. $922.00 in total).

261. Notably, the SDA also had at least seven (7) telephone conferences
with DA McNally concerning the matter after his disqualification
that were billed for payment (i.e. September 29, 2009 [3 x .10 hr.
each]; September 30, 2009 [1x .10/hr.]; October 2, 2009 [1x .
2/hr.]; October 5, 2009 [1x .10/hr.]; October 28, 2009 [1 x .3 hr.]).
See, Exhibit 15. It must be noted that their last conversation was
after the interviews of witnesses was being conducted by
SDA/NYSP.

262. Furthermore, in view of his orchestration of the events and media

coverage regarding the hand-up and arraignment on the sealed
Indictment, as well as his highly improper and prejudicial post-
indictment campaign-style press statements, it appears that the
SDA still has political aspiration to get the Democrat Party
nomination for DA.

B. McInerney is a Friend of DA McNally, Past Worker on DA McNally’s Inaugural

Election Campaign and the Most Valued Party Elections Worker
263. It appears that DA McNally disqualified himself upon the
“speculation of politics and appearance of impropriety” to avoid
being involved in the investigation or prosecution of other
Democrat incumbents, supporters and/or party workers allegedly
involved in the matter, and particularly, McInerney, McGrath and
Brown.

264. In fact, according to McDonough, McInerney and DA McNally

have become personal friends. McInerney was also one of the
most diligent workers on McNally’s inaugural election campaign
and very instrumental in his successful election.

265. At and before the time of the subject election, McInerney was also
known to be the Democrat Party’s most hard working and valued
election campaign workers.

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 266. It is likely that the SDA is aware of McInerney’s reputation as the
most valued Democrat party worker as well as his relationship with
DA McNally.

C. McInerney’s Warning that He “Will Not Go Down Alone” if Prosecuted

267. As stated, soon after the SDA’s appointment, it is known that
McInerney stated to McDonough and others that he “will not go
down alone” if prosecuted. It may be that the SDA is aware of
McInerney’s threat.

268. In any event, the possible effects of McInerney’s threat cannot be

ignored, underestimated or denied in view of the parochial political
nature of the matter and the relationships between the interested
parties, including DA McNally, McInerney, McGrath and the
SDA, i.e. the existence of conflicting interests and appearance of
impropriety.

D. Standing of McGrath and Brown in Democrat Party

269. Also, Brown, McGrath and Campana are incumbent Troy City
council members and ostensibly rising stars in Rensselaer County
Democrat Party. Brown and Campana have ambition to be the
Mayor of the City of Troy and each of the incumbents helped the
Democrats take majority control of the City of Troy Council, the
singularly most important election for the Rensselaer County
Democrat Party.

270. In summary, the SDA is a friend and past monetary supporter of

DA McNally whose friend, McInerney, was not only his most
diligent campaign activist and the Democrat party’s most valued
worker, but, a primary suspect of the alleged voter fraud who
essentially threatened to “bring down the ship” if prosecuted. The
SDA is also a practitioner who has had a long professional relation
with Hon. P.J. McGrath, J.S.C., whose brother and incumbent
Democrat Troy City Council member, Kevin McGrath, is also a
primary suspect of the alleged crimes. Brown and Campana are
incumbent City of Troy council members and Democrat Party
stalwarts and implicated in the alleged crime by the credible
evidence. For those reasons and others, the SDA should not have
accepted appointment in this case and must now be disqualified
from the matter.

271. Again, the SDA has failed to prosecute McInerney, McGrath,

Brown or any other Democrats notwithstanding the substantial
credible testimonial and documentary evidence implicating them in
the alleged voter fraud. Otherwise, he has improperly commenced
this prosecution against McDonough despite the lack of any

47
 accusation, allegation or credible evidence incriminating him in the
alleged voter fraud based upon the patently incredible testimony of
a primary suspect (McGrath) obtained in return for immunity from
prosecution/lesser prosecution and the inherently suspect and weak
testimony of another (O’Malley) obtained in return for immunity
after threatening to prosecute him for perjury and/or substantive
crimes.

272. The net result of the SDA’s inexplicable conduct and dereliction of
duties is that none of the Democrat incumbents or party workers
implicated in the alleged “massive” voter fraud are being
prosecuted while McDonough must face the costs and uncertainty
of a baseless prosecution improperly brought against him for the
benefit of the conflicting personal and political interests of the
SDA, the Democrat incumbents and/or Rensselaer County
Democrat Party.

273. Consequently, at the very least, the SDA’s party affiliation,

apparent political ambition, relation with DA McNally and area of
practice requires his disqualification and dismissal of the
Indictment on the basis of his conflicting interests and misconduct
as well as the appearance of impropriety and the speculation of
politics.

X. District Attorney McNally’s Involvement through Telephone Conversations

with SDA, Taking Custody of AB/AAB, Obtaining Copies of DNA Analysis
Reports from NYSP and Conversations with McDonough and McInerney.

274. The indisputable facts show that DA McNally had some

involvement with the matter after his disqualification. Ironically, it
appears that his actions relate directly to the concerns upon which
he based his own disqualification, i.e. the speculation of politics
and appearance of impropriety. Therefore, any involvement he has
had with the matter also presents an inherent conflict of interest.

275. The facts also show that the SDA had knowledge of at least some
of DA McNally’s involvement with the matter.

Substantive Telephone Conversations with SDA

276. As stated, the SDA’s time records reflect that he had at least seven
(7) telephone conversations with DA McNally concerning the
matter (see, ¶ 262).

277. It is expected that the SDA will contend that the conversations
concerned non-substantive matters but the appearance of

48
 impropriety and likely prejudice to the defendants remains,
especially in view of all the relevant facts, including the fact that
the last recorded conversation occurred in October 2009 during the
investigation.

Taking Custody of the AB/AAB

278. Secondly, soon after the SDA was appointed, one of DA
McNally’s investigators took possession of certain AB/AAB and
that person is now in the chain of evidence. A copy of the NYSP
chain of custody report is attached as Exhibit 20.

279. No doubt it will be asserted that the fact is immaterial to the case
but again it raises a question of conflicting interests and
impropriety under the circumstances.

Obtaining Copies of DNA Analysis Reports from NYSP

280. Thirdly, the NYSP forensic laboratory gave DA McNally a copy of
certain reports concerning its analysis of DNA samples taken from
the purported targets of the investigation, including McInerney, the
Democrat incumbents and/or others. Copies of the same showing
that they were provided to both the SDA and DA McNally are
attached as Exhibit 21. The SDA obviously knew about that
disclosure to DA McNally.

281. Ignorance and mistake will most likely be claimed but to no avail
because there can be no doubt that the NYSP forensic lab
specialist, the SDA and the DA all had to know that the reports
were intentionally provided to the disqualified DA. Once again the
facts show the existence of conflicting interests and appearance of
impropriety, i.e. the disqualified DA was given important evidence
that could have been given to others.

Conversations with McDonough and McInerney

282. Lastly, DA McNally contacted McDonough and recommended that
he retain one of two named attorneys as substituted counsel
because they would purportedly charge less legal fees. His
recommendation related directly to certain statements McDonough
had recently made to McInerney about being prosecuted and made
to pay legal fees because of the illegal acts of others who were not
accepting their responsibility.

283. McInerney acted as a messenger for DA McNally in providing the

names of the attorneys he recommended to McDonough.

49
 Therefore, the DA obviously also had conversations with
McInerney about that matter. See, McDonough affidavit.

284. It must also be mentioned that DA McNally’s recommendation to

McDonough that he change attorneys took place soon after
McDonough gave the SDA notice of his intent to testify before the
GJ. At that time, the SDA knew that McDonough would
incriminate McInerney and Brown in the voter fraud (as well as
contradict McGrath’s patently incredible statement/false
accusations). Of course, McInerney, Brown and McGrath would
also have that knowledge. In fact, McDonough in the same
referenced conversation personally told McInerney that he was
going to testify before the GJ.

285. Consequently, McDonough’s expected appearance before the GJ

must have been the topic of discussion and concern among some
Democrats and/or others. In fact, at the same time I also received
telephone inquiries from members of the news media about his
intended GJ appearance and testimony.

286. In view of the relationships between the interested parties and the
political nature of this matter, any communication between DA
McNally and McInerney and/or the SDA presents the same
improper conduct, conflicting interests, appearance of impropriety
and speculation of politics.

287. It is obvious that the DA must concern himself about any potential
adverse effect that the prosecution of McInerney, McGrath, Brown
or any other Democrat incumbent or worker might possibly have
on the Democrat Party and his election campaign this fall.

288. In summary, any involvement that DA McNally had with this

matter after his disqualification presents serious ethical and legal
issues of improper conduct, conflicting interests, appearance of
impropriety and the speculation of politics that prejudiced
McDonough and requires the disqualification of the SDA and
dismissal of the indictment.

XI. SDA Dealings with Defense Counsel, Conduct re O’Malley GJ Appearance

and Obtaining his False Incrimination of McDonough by Threat of Perjury
Prosecution, Declaration that McDonough was “Fucked” and Conduct
Prevents McDonough from Testifying before GJ.

A. Dealings with Defense Counsel

289. In conversation, the SDA often spontaneously asserted that he had
“no political agenda” without any context related to the statement.

50
 However, similar to his other claims of propriety that he would
treat McDonough fairly before the GJ and that he went only where
the evidence took him, his word is betrayed by his conduct and the
evidence.

290. It seems obvious that his assertions were simply made in effort to
mask his true motivation for prosecuting McDonough in lieu of
those party members responsible for the alleged crimes, i.e.
personal interests and political reasons.

291. Simply put, at every turn the SDA’s conduct in dealing with
counsel was in conflict with his word and the known evidence.
For example, contrary to his word that he intended to treat
McDonough fairly before the GJ, he refused to offer Bugbee
immunity to testify about the BOE policies and procedures
relevant to McDonough’s actions; stated that he would not
question McGrath and O’Malley about their motivations to testify
against McDonough and threatened O’Malley with a perjury
prosecution to obtain his inherently suspect and obviously false
testimony against McDonough.

292. Also, after stating that he would discuss the possibility of having
McDonough testify as a witness on behalf of the People he
immediately rejected the prospect on the pretentious basis that
McDonough’s credibility was impaired and did not want to discuss
his prospective testimony. In reality, he had already accepted
McGrath’s cooperation and was determined to prosecute
McDonough regardless of the evidence or his testimony.

293. The SDA’s other inconsistent improper conduct reflecting his

conflicting interests in prosecuting McDonough are discussed
herein.

B. Conduct re O’Malley’s GJ Appearance and Testimony

294. As soon as the SDA admitted that McDonough was a target of his
investigation, he was given notice of McDonough’s intent to testify
before the GJ. In response, he acknowledged his duty of impartial
fairness in presenting the matter before the GJ.

295. Thereafter, however, the SDA consistently conducted himself in a

manner indicative of the intent to improperly prosecute
McDonough based upon conflicting personal/political interests and
the speculation of politics. Ultimately, his conduct had the likely
intentional effect of preventing McDonough from exercising his
right to testify before the GJ because he did not trust that the SDA
would treat him fairly.

51
 296. The SDA’s actions regarding the re-appearance of O’Malley
before the GJ and the elicitation of his inherently suspect and
obviously incredible testimony, as discussed, is a more salient
example of his manifested intent to prosecute McDonough that had
the prejudicial effect of preventing him from testifying before the
GJ.

Cancellation of GJ
297. On or about December 14, 2009, the SDA called the BOE and left
a message for all its employees subpoenaed to appear before the
GJ that it was canceled for the following day. Later that day, the
SDA called and speculated that McDonough had already told me
but wanted to make sure that I was also aware of the GJ
cancellation.

C. Spontaneous Declaration: “Yeah, Your Client’s Fucked”

298. The following day, the SDA walked by me in the Rensselaer
County Courthouse and in response to an inquiry of whether
O’Malley was appearing before the GJ that day, contrary to his
statement that its meeting had been cancelled, he simply turned,
grinned and said with a mimic of quotations: “Yeah, your client’s
fucked” as he walked away.

299. It appears that the SDA had attempted to keep O’Malley’s re-
appearance before the GJ unknown to McDonough and was upset
when his silly game was discovered. In any event, the SDA’s
inexplicable conduct and comment was yet another manifestation
of his conflicting personal/political interests in prosecuting
McDonough.

D. Obtains O’Malley’s False Incrimination of McDonough by Threat of Perjury

300. Later it was learned that after his initial appearance before the GJ
the NYSP contacted O’Malley and, in substance, told that he
should retain an attorney because there was a serious question of
whether he committed perjury by his testimony. O’Malley
subsequently retained counsel and on December 15, 2009
reappeared before the GJ.

301. In view of the allegations of the Indictment it is expected that he

falsely incriminated McDonough in the forgery of AAB in
response to an examination tailored for the same and in return for
immunity from prosecution for perjury or substantive crimes. In
that regard, it is likely that O’Malley was concerned he would be
prosecuted for perjury if he did not give the “right” testimony that
the SDA sought to elicit.

52
 302. In any event, although the content of O’Malley’s GJ testimony is
unknown it is inherently tainted by the prospect that a “perjury-
trap” was set by the SDA.

303. Simply put, if O’Malley testified truthfully he could not have

incriminated McDonough or contradicted the facts set forth herein.
However, in view of the SDA’s related comment and the
allegations in the Indictment that McDonough committed certain
counts of the forgery with O’Malley, it is expected that he gave
false testimony in response to the SDA’s examination in effort to
avoid his own threatened prosecution.

304. A review of the GJ minutes will assist in a review and

determination of that issue.

E. E-Mail Message Shows True Nature of Investigation/Prosecution

305. An e-mail message obtained from the SDA on the day that
O’Malley returned to the GJ in response to the threat of a perjury
prosecution also shows that the prosecution of McDonough is
based upon the improper conduct and conflicting interests of the
SDA. A copy of the e-mail message is attached as Exhibit 22.

306. In that message, the SDA implies that O’Malley’s “new” testimony
somehow made the prosecution’s case against McDonough, as
follows: “Must be getting awfully exhausting, trying to plug all the
holes in the dyke, trying to get everybody to keep their mouth shut
so your guy can walk away from this thing. You want to go dirty
on me – go ahead. It’s a lot easier to smear an opponent than beat
him fairly. I’m not surprised. Funny you brought up my
conversation with Ed once the table turned, so to speak. Anyway,
the evidence doesn’t look good for your guy. Which is another
way of saying what I said to you earlier.”

307. Ironically, that message speaks volumes about the nature of the
SDA’s conduct and conflicting interests in the investigation and
prosecution of this matter, as well as his dealings with defense
counsel. Suffice it to say, many of his comments have no factual
basis in our related conversations. His words do, however, show
the disconnection between his word and conduct that became
characteristic in his dealings with counsel.

308. The significance of that message cannot be understated because it

clearly shows that the SDA sought to prosecute McDonough
before he obtained O’Malley’s testimony in response to the threat
of a perjury prosecution even though he knew that there was not
sufficient credible evidence to do so before that time.

53
F. SDA Conduct Prevents McDonough from Testifying
309. The SDA’s actions and especially his otherwise inexplicable e-
mail and statement that because of O’Malley’s testimony the
“tables were turned” and McDonough was consequently “fucked”
again confirmed McDonough’s belief that the SDA would not treat
him fairly before the GJ.

310. It is therefore understandable that McDonough declined to exercise

his right to testify before the GJ as he had intended only after the
SDA’s comments were made in relation to the O’Malley incident
and his “new” testimony.

311. Consequently, McDonough did not testify before the GJ solely

because he did trust that the SDA would treat him fairly based
upon his comments and pattern of behavior regarding the
investigation and prosecution of the matter.
____________________

MOTIONS

I. Disqualification of the SDA: Conflict of Personal and Political Interests

A. Actual Conflict of Interests, the Speculation of Politics

and the Appearance of Impropriety have Substantially Prejudiced
McDonough’s Rights to Due Process and a Fair Trial
[Cardinale v. Golinello, 43 N.Y. 2d 288, Matter of Schumer v. Holtzman, 60 N.Y.
2d 46, et. seq.; DR 5-101(B)]
312. For all of the reasons stated, it is submitted that the SDA should
and must be disqualified from the case based upon the existence of
an actual conflict of personal and/or political interests, the
speculation of politics and the appearance of impropriety that has
substantially prejudiced McDonough’s rights to due process and a
fair trial.

313. The prejudice to McDonough’s constitutional rights to due process

and a fair trial cannot be disputed under the circumstances, and,
specifically, in view of the SDA’s conduct in the investigation and
prosecution of the matter as discussed (see, also, ¶ 322).

314. At the very least, the indisputable facts show that the SDA’s
conflicting personal and/or political interests have caused
McDonough to suffer an indictment, prevented him from testifying
before the GJ, caused him to be subjected to substantial
prosecution-biased prejudicial media fanfare before, during and
after indictment, and subjected him to having apparently false

54
 testimonial evidence elicited against him in return for the benefits
of cooperation agreements, immunity from prosecution and/or
other benefits without any legitimate consideration being given to
the state.

B. Conduct of SDA in Investigation and Prosecution of the Matter

Will be a Material Issue at Trial (SDA Will Likely be called as a Witness)
[People v. Paperno, 54 N.Y. 2d 294, et. seq.; DR 5-102]
315. For all the reasons discussed, the conduct of the SDA in the
investigation and prosecution of the matter will also be a material
issue at trial.

316. At the least, the SDA has made himself a witness to the scope and
conduct of his investigation concerning the matter as discussed,
and particularly, (1) his meeting with McDonough, without
counsel, after targeting him for prosecution in the absence of any
incriminating accusation or evidence; (2) his threats to prosecute
McDonough based on his stated actual personal interest to do so;
(3) the nature and purpose of McGrath’s Cooperation Agreement
and related statement as well as his motivation, intent and reason
for accepting the same to prosecute McDonough; (4) the nature
and purpose of any agreement with O’Malley and related
testimony, as well as his motivation, intent and reason for
accepting the same to prosecute McDonough; (5) his threats to
prosecute O’Malley and its effect on O’Malley’s GJ testimony; (6)
his treatment of certain Democrat BOE employees in the GJ and its
effect on their testimony; and (7) many other relevant facts
concerning the investigation and prosecution (failure) that are
exculpatory in nature for McDonough, as discussed.

317. Therefore, McDonough will call the SDA as an adverse witness to

challenge the prosecution’s proof, impeach the credibility of
prosecution witnesses and evidence and to introduce any
exculpatory or otherwise favorable evidence related to the
investigation of the matter and, specifically, the impeachment of
McGrath and O’Malley.

318. McDonough will essentially produce the SDA to testify about any
fact relevant to the investigation and prosecution of the case in the
same manner that he would any law enforcement officer who was
a witness to any material factual or legal issue.

319. McDonough will certainly raise at trial the violation of his due
process rights as a result of the SDA’s conduct in the investigation
and prosecution of the matter.

55
 320. Therefore, it is submitted that the SDA should and must be
disqualified from the case based upon the fact that there has been a
significant showing that his conduct will be a material issue at trial
and his credibility will be at least improperly injected into the trial
through the cross-examination of many witnesses as an unsworn
witness, including the two cooperating witnesses upon which the
indictment is based.

II. Dismissal of Indictment:

Misconduct in the Investigation and Prosecution, and
Actual or Implied GJ Juror or Panel Bias and Prejudice

A. Misconduct in the Investigation and Prosecution of the Matter:

[CPL 210.20(1) (h); People v. Isaacson, 44 N.Y. 2d 511 (1978)]
321. It is further submitted that because the grounds for disqualification
of the SDA and dismissal of the Indictment are based upon the
conduct of the prosecutor in the investigation and prosecution
motions for such separate relief are made at this time, without
regard to completion of discovery or other motions to be brought.

322. Therefore, for all of the same factual, legal and ethical reasons for
disqualification of the SDA, McDonough also moves for dismissal
of the Indictment on the basis that he has been deprived due
process of the law as a result of the outrageous conduct of the
prosecution in the investigation and prosecution of the matter,
including: (1) focusing the investigation on McDonough without
any incriminating accusation, allegation or evidence; (2) failing to
conduct a timely and proper investigation and thereby obtain
further evidence from witnesses; (3) targeting McDonough for
prosecution because of conflicting personal interests and political
reasons; (4) meeting with McDonough and threatening to
prosecute him without counsel; (5) failing to properly investigate
or prosecute the Democrat incumbents and party workers
implicated by the substantial credible evidence as being involved
in the alleged “massive” voter fraud and AAB/AB forgery; (6)
communicating with the disqualified DA and allowing him to
obtain evidence from the NYSP forensics laboratory during the
investigation; (7) eliciting and accepting the veracity of a primary
suspect’s written statement that contradicts the credible evidence,
completely exculpates himself from any responsibility, falsely
incriminates McDonough and fails to provide any evidentiary facts
against any others in return for the benefits of a Cooperation
Agreement that was given without any benefit to the State (i.e.
based upon a partially incredible statement without requiring him
to provide complete truthful information); (8) failing to request an
extension of authority to investigate and prosecute past similar

56
 incidents of forgery involving the parties based on documents
provided by BOE Commissioner Bugbee; (9) failing to accept the
proffered testimony of McDonough in corroboration of the
credible evidence implicating others in the alleged crimes; (10)
threatening the pretentious prosecution of others and refusing to
engage in good faith plea negotiations with them, thereby
preventing them from necessarily exculpating McDonough; (11)
failing to exercise impartial fairness or to seek justice in the
investigation, GJ presentation and prosecution of the matter; (12)
seeking and obtaining the inherently suspect GJ testimony of
O’Malley in which he likely falsely incriminated McDonough in
return for immunity from the threatened prosecution for perjury;
(13) presenting the case before a GJ that was impaneled by the
Supreme Court Justice whose brother was the primary witness
against McDonough in the GJ, (likely) instructed by the
disqualified DA and (likely) had cases presented before it by the
disqualified DA and/or his assistants, more than one year after his
appointment (rather than a County Court GJ before which there
would have been no such possible conflict or concern); (14)
causing substantial prejudicial media coverage of the investigation
and related GJ proceedings that will likely prejudice and deprive
the defendants of a right to a fair trial or advance his own personal
or political interests by, among other things: (a) publicly
identifying McDonough as a GJ target by issuing subpoena with
his name in a criminal caption prior to indictment, despite his
denial of guilt and intent to testify before the GJ, (b) filing a
motion for seizure of DNA related to the impending secretive GJ
proceedings without a sealing order, (c) causing or allowing the
disclosure of the names of witnesses and other information about
the matter being presented to the GJ, (d) orchestrating the
“booking” of the defendants before arrangement on a sealed
Indictment so that they would be escorted by the NYSP into Court
in handcuffs and have their “mug shots” available for display at a
press conference jointly held with the NYSP; (15) making highly
improper statements at the press conference likely to deprive the
defendants of a fair trial and designed to advance his own personal
interests; and (16) otherwise acting in a manner that caused
McDonough to believe that he would not be treated fairly before
the GJ and therefore not testify as he had intended.

323. Pursuant to the authority of People v. Isaacson, 44 N.Y. 2d (1978),

and related decisions, the violation of a defendant’s substantive
due process rights as a result of outrageous government conduct in
the investigation and/or prosecution of a criminal matter requires
dismissal of charges under the State Constitution.

57
 324. It is respectfully submitted that the irrefutable facts clearly show
that the SDA engaged in a pattern of outrageous prosecutorial
misconduct in the investigation and prosecution of the matter
based on conflicting personal and political interests that has
resulted in a substantial, prejudicial violation of McDonough’s due
process rights. There can be few due process violations worse
than a prosecution brought for conflicting personal and political
interests based upon patently incredible evidence.

325. In short, the prosecutor’s conduct is a substantial violation of

McDonough’s due process rights that speaks more loudly than any
of his protestations of propriety.

B. Implied Bias and Prejudice of Grand Jury Jurors and/or Panel

[Pursuant to CPL 190.20(2)(b); 210.20(1)(c); and 210.35(1) and/or (5)]
326. The GJ before which this matter was presented was impaneled,
sworn and given general instructions by Hon. P.J. McGrath, J.S.C.

327. In fact, the SDA waited almost one year before presenting the
matter before one of only two GJs impaneled by Hon. P.J.
McGrath, J.S.C. in the 2010 year, despite the fact that there were
numerous County Court GJ terms throughout the year. A copy of
the Rensselaer County “Terms of Supreme Court for the
Empaneling of Grand Juries” and “Terms of County Courts for the
Empaneling of Grand Juries” is attached as Exhibit 23.

328. It is difficult to understand how the SDA could possibly not have
been aware that the GJ before whom he presented this case was
impaneled by Justice McGrath, especially since he would have had
to obtain information from the clerk of the Court about the 2010
GJ terms as published pursuant to the CPL and local rules. In any
case, it was his responsibility to ensure that propriety of the panel.

329. As stated, Justice McGrath is a Democrat, a well-respected and

known jurist as well as the older brother of Democrat incumbent
Troy City Council member McGrath, who testified before the GJ
as the prosecution’s primary witness against McDonough.

330. Furthermore, as the SDA has repeatedly admitted, this matter has
garnered the media’s attention since it was publicly disclosed on or
about September 2009. In fact, as discussed, the matter has been
the subject of a substantial amount of highly prejudicial,
prosecution-biased media fanfare before its presentation before the
GJ, during its presentation to the GJ and after the GJ returned an
Indictment.

58
331. The prosecution-biased publicity included the disclosure,
publication and dissemination of the identity of McGrath as the
prosecution’s primary witness and the contents of his written
statement incriminating McDonough. There can be little doubt
that anyone who gained knowledge about the matter through that
publicity also knew the relationship between McGrath and Justice
McGrath.

332. Nonetheless, the SDA failed to conduct any voir dire concerning
the relationship between the prosecution’s primary witness against
McDonough and Justice McGrath.

333. Therefore, it is not possible to determine whether any juror had any
actual bias or prejudice against McDonough based on the McGrath
familial relationship that made him incapable of performing his
duties and required his discharge pursuant to CPL 190.20(2).

334. In any event, it is respectfully submitted that the McGrath familial

relationship requires a dismissal of the Indictment because of an
incurable implied bias and prejudice of the entire GJ panel that
presents a legal impediment to McDonough’s conviction,
particularly in view of the extensive prejudicial publicity
concerning the matter.

335. Justice McGrath has been on the bench in Supreme Court, County
Court and Troy Police Court for the past twenty-five years. He
and his extended family, including his brother Troy City council
member McGrath, have substantial political, social and other ties
in the county. Justice McGrath’s well-known reputation as a
highly-respected jurist cannot be understated. Many county
residents consider him a friend, acquaintance and “our judge”
because they grew up with him or a family member, voted for him
many times, played sports with him or a family member, had their
marriage services performed by him, had their pistol permit issued
by him, had a criminal who victimized them sentenced by him, had
a fair sentence imposed upon them or a family member or had any
one of many other civil or criminal matters fairly handled by him
in one of his courts.

336. Therefore, the fact that Justice McGrath impaneled, preliminarily

instructed and initially acted as the supervisory legal advisor of the
GJ before which this matter was presented by the SDA and his
brother testified as the primary witness against McDonough alone
presents the possibility of an implied jury bias and prejudice that
cannot be cured and requires dismissal of the Indictment,

59
 especially because the SDA failed to conduct any voir dire with
respect to the McGrath family relationship.

C. Defects in Grand Jury Proceedings: No Motion Presently Made.

[CPL 210.20(1)(c); CPL 210.35(5)]
337. In view of his innocence and considering the nature of the case,
McDonough expects that there are substantial defects in the GJ
proceeding.

338. Specifically, it is presently believed based upon certain

representations the SDA concerning the presentation of the matter
before the GJ that inadmissible hearsay was entered into evidence
before the GJ; instructions that McGrath and O’Malley were
accessories as a matter of law may have been improperly given as
a result of which the SDA may have become an unsworn witness
and bolstered the testimony of those witnesses; McGrath and
O’Malley may not have been cross-examined with respect to any
prior bad act and/or agreement for immunity from prosecution or
other benefit given for their testimony (which in this case should
have been done in fairness); the SDA may have not permitted
certain witnesses to elaborate on relevant testimony; and the SDA
may have elicited the testimony of O’Malley by means of improper
examination.

339. McDonough cannot and does not presently move for dismissal of
the indictment based upon these possible grounds but raises the
matter in relation to his present motion simply in relation to the
request for release of all GJ minutes at this time to assist the
defense in bringing all proper motions, including that mentioned
and motions to dismiss based on improper joinder of defendants,
defective GJ proceedings, etc.

III. Inspection of GJ Minutes [CPL 210.30]

340. McDonough specifically requests that upon his motion to

disqualify the SDA as well as his motions to dismiss to the
Indictment that the Court inspect the minutes of the GJ
proceedings and release the same to the defendant so that they may
be utilized to assist the defense and Court in a determination of all
appropriate motions.

341. As stated, this matter has been the subject of extensive media
coverage for over one year that has included the public disclosure
of the names of all purported “persons of interest” as well as the
presentation of the matter before the GJ.

60
 342. In fact, much of the highly prejudicial media coverage about the
matter has included facts specifically related to the investigation
and GJ presentation that have necessarily been disclosed by the
prosecution, including the identities of McDonough and LoPorto
as the only targets of the GJ proceeding and the witnesses called to
testify. In short, no material aspect of the investigation or GJ
presentation has been left out of the extensive prosecution-biased
media coverage.

343. As discussed, the SDA personally caused the most prejudicial

media coverage by his actions in relation to the arraignment on the
sealed Indictment and the statements he made about the matter at a
post-arraignment press conference.

344. Lastly, if the case is not dismissed, there will be trial and the GJ
minutes of any witness will be required to be disclosed before their
testimony.

345. Under the unique circumstances it is respectfully requested that the

minutes of the GJ proceeding, including all instructions,
discussions and charges be released to the defendants at this stage
in the proceeding as a matter of fundamental fairness and to assist
in the determination of all appropriate motions as well as further
the interests of justice.

WHEREFORE, defendant McDonough respectfully moves for Orders of this

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

Dated: February 23, 2011 PREMO LAW FIRM, PLLC

_________________________

Brian D. Premo, Esq.

Attorney for Defendant McDonough
20 Corporate Woods Boulevard
Albany, N. Y. 12211
Phone: (518) 436-8000

To: Special District Attorney

Trey Smith, Esq.

61
 Smith Hernandez, LLC
Rensselaer Technology Park
105 Jordan Road
Troy, New York 12180-8376

Schedule A
(Reference paragraph 35)
In relevant part, they testified as follows:

62
a. Brian Suozzo:
Did not sign ABA or give/enter false statement on it that he would be “at home
recovering from a medical procedure”; did not sign AB or AB envelope.
b. BartonWard:
Signed, but did not complete AAB or give/enter the false statement on it that was
“recovering from surgery”; AAB was filled-out by the unknown man who
obtained it; did not sign, mail or cast AB.
c. Jesenia Acevedo:
DeFiglio brought her an AAB and she signed it but did not give/enter the false
statement on it that she would be “visiting relatives in Yonkers”; not asked if
available to vote; did not sign AB.
d. Anna Berrios:
Unknown man asked her to “sign a form to vote”; signed, but did not complete
AAB or give/enter the false statement on it that would be in Cape Cod; signed and
voted AB. [Note: Court ordered her AB counted.]
e. Elizabeth Montalvo:
Signature on AAB was hers and could be hers on AB; not recall anything. [Note:
Court compared with voter registration card and Ordered AB voided]
f. Lloyd Newell:
McGrath obtained his signed AAB; did not complete AAB; told McGrath that
attended HVCC in the morning, then at work from 3 pm to midnight as stated in
AAB; McGrath brought him an AB; filled out and signed AB and envelope; gave
AB to McGrath who put it in envelope. [High school classmate of McGrath’s
daughter].
g. Jessica Boomhower:
Approached by DeFiglio, Gary Galuski and unknown man; told “they” were
trying to make it easier to vote; signed, but did complete or give/enter the false
statement on AAB that would be “in a work conference in Boston”; did not get or
sign AB; appears to be her signature on AB envelope.
h. Richard Gushlaw:
LoPorto and Campana came to his residence about September 13, 2009;
LoPorto asked him to sign back of an envelope and said he would cast the ballot
so Gushlaw wouldn’t have to show up “and that’s all that was said”; signed back
of envelope; never saw and not his signature on AAB; did not give/enter the false
information on AAB that would be in Lake George; did not request DeFiglio to
return AB to him; did not sign AB; his signature is on AB envelope but he did not
date it; LoPorto told him that because was married “he would allow” him “to sign
for hers” so signed a similar envelope for wife; not wife’s handwriting on AAB;
wife’s AB envelope is not the one he signed.
i. Karen Gushlaw:
Signed AAB but did not give/enter the false statement on it that would be in Lake
George; DeFiglio told her not to worry about what signing, they would “fill it in
later”; did not sign, obtain or vote AB or sign AB envelope.
Schedule B
(Reference paragraph 171)

63
In discussing certain purported voter AAB and AB that he obtained, completed and/or
filed, McGrath alleged in his statement, as follows:

a. Thomas Dickinson:
Voter signed his name on AAB; he entered voter’s name, address and Mason as
person to obtain AB on AAB; on August 24, 2009, McDonough wrote on AAB
that voter would be at “Screen printer’s conference in Syracuse” and dates out of
county. Later, got voter’s permission to sign his name on AB envelope and vote
his AB, so did. [Voter Contradicts]
b. Jennifer Taylor:
Voter signed her name and entered name and address on AAB; he entered Mason
as person to obtain AB on AAB; told McDonough where voter would be on
election day, but not recall where; McDonough wrote on AAB that voter would
be “visiting family in Massachusetts” and dates out of county. Later, got voter’s
permission to sign her name on AB envelope and vote her AB, so did. [Voter
Contradicts]
c. John Gilbert:
Voter embarrassed about his literacy and had wife sign his name on AAB; he
entered voter’s name, address and Leonard as person to obtain AB on AAB; not
recall who wrote on AAB voter’s date of birth or would be in “South Yarmouth
Cape Cod” but not his handwriting. Later, got voter’s permission to sign his name
on AB envelope and vote his AB, so did. Known voter for 10 years and played
flag football with him. [Voter Contradicts]
d. Stephan Carpenter:
Voter signed AAB; completed AAB with information from voter; voter signed
AB envelope; completed AB with voter’s consent and “licked the envelope and
mailed it to the BOE as I did with all the ballots.” Known voter for 12-15 years
and used to work together
e. Lloyd Newell:
Voter signed his name, entered incorrect (former) address and all information on
AAB except he entered Aldrich as person to obtain AB; asked McDonough if
voter’s correct address voter later gave him could be added on but can’t say for
sure if McDonough made the correction. [went to school with daughter]
f. Marc Welch:
Known voter all life and grew up with his brother; not fill-out AAB but
introduced voter to Brown and Aldrich the Saturday before primary and they
filled-out the AAB with voter; later saw voter with his AB and he signed the AB
envelope; completed AB with voter because has trouble writing; licked the AB
envelope and sent to BOE for voter. [Voter Contradicts]

Schedule C
(Reference paragraph 173)

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a. Thomas Dickinson:
September 23, 2009 Statement:
Signed AAB for McGrath but never gave information on it; did not get AB, vote,
chose candidate or sign AB envelop.
October 30, 2009 Statement:
McGrath gave voter registration card and he signed it; McGrath asked for vote
and said would bring a form to sign; was drinking; AAB correct except where
says out of town; not his signature on AB envelop and did not vote.
b. Jennifer Taylor: (DOS: 9/24/09)
September 24, 2009 Statement:
In August, McGrath and another man asked to sign AAB and did as directed; did
not get an AB or pick a candidate; did not sign AB envelope; not “visiting family
in Massachusetts” as stated on AAB.
October 4, 2009 Statement:
In August, McGrath and Mason asked to sign voter registration card to vote for
McGrath; later McGrath asked her to fill-out a card and checked WFP; last time
saw anyone; one AAB dated August 13, 2009 has her signature and signed a
second AAB same date; not recall getting AB or AB envelope; looks like
signature on AB envelope, must have signed; not give anyone permission to sign
name or vote for her.
c. John Gilbert:
October 28, 2009 Statement:
Cannot read/write too well; not registered to vote; never saw AAB and signature
not his; recalls McGrath (knows personally) had a brown envelope and opened it
and had him sign something; not believe it is his signature on AB envelope, but
not certain; knows never saw AB and never voted; just signed an envelop;
McGrath is the only person he dealt with.
d. Stephan Carpenter:
November 3, 2009 Statement:
McGrath asked to vote for him and signed voter registration form, looks like his
signature; recalls signing AAB; name spelled wrong and incorrect address on both
forms; not recall seeing AB envelope, signature looks like his; not recall checking
boxes on a paper ballot; “I am familiar with the McGraths because of McGrath
who is a judge. If my ballot is located and I voted for [him] I have no objection to
the ballot.”
e. Lloyd Newell:
October 28, 2009 Statement
McGrath brought a voter registration and AAB at same time and he signed;
McGrath came with AB and he voted, signed and gave back to him when at work;
attends HVCC in am and works 3pm to 10pm; signed AAB and AB.
f. Marc Welch:
September 24, 2009 Statement
McGrath and other man asked him to sign an AAB and he did; did not sign an
AB; voted in person.

65