Motion To Disqualify
Motion To Disqualify
Edward G. McDonough, under the penalties of perjury, being duly sworn deposes
and states, as follows:
1. I am a named defendant and fully familiar with this action and matter.
2. I submit this affidavit in support of motions for Orders of the Court: Disqualifying
the Special District Attorney (“SDA”); Dismissing the Indictment; Directing
the Release of the GJ Minutes; Appointing a Special District Attorney with
authority to investigate this and past incidents of voter fraud and/or forgery;
and, granting such other relief as the Court deems just and proper, upon the
grounds stated in the affirmation of my attorney Brian D. Premo, Esq.
submitted in support of the motions. I also respectfully request that the Court
conduct any hearing as required or appropriate in determination of any
motion.
3. This affidavit is made upon personal knowledge of the facts and upon information
and belief, the sources and grounds of which are the papers and documents
disclosed by the SDA, including witness statements; documents obtained from
the Rensselaer County Board of Elections (“BOE”), including those attached;
papers contained within the file maintained by my attorney regarding this
matter; personal conversations with McInerney, the SDA, Rensselaer County
District Attorney Richard McNally, Kevin O’Malley and/or others; and all
prior proceedings.
1
5. On November 19 and December 7, 2009, I met with Sr. Inv. Ogden concerning
the investigation being conducted by Special Prosecutor Trey Smith (“SDA”)
regarding the matter of Christian Lambertsen v. Lawrence Bugbee, Edward
McDonough, Rensselaer County Board of Elections, et al. (Index No.
230629/RJI 41-1029-2009) and related October 2, 2009, Supreme Court
Decision and Order/Judgment prohibiting the opening and/or counting of
certain challenged absentee ballots (“AB”) purportedly cast in the September
15, 2009 primary election of the Working Families Party (“WFP”). I also
executed the written statements prepared by the investigator on those two
dates.
6. At the time of those interviews, it was my belief that the criminal investigation
concerned the forgery of the approximately thirty-five (35) invalidated AB
and/or applications for absentee ballot (“AAB”) that were the subject of that
matter. I was never told that I was a suspect or target of any investigation,
although Sr. Inv. Ogden said as a formality he had to advise me of my
Miranda rights, which he did.
7. Also, I was never asked any specific questions about the AAB or AB filed with
the BOE by Kevin McGrath or any person other than John Brown during the
interviews.
8. In retrospect, it is clear to me that the investigator did not want any other relevant
information from me concerning the alleged voter fraud and forgery of AAB
and AB because I was already targeted for prosecution, despite the fact that I
had absolutely no involvement in the commission of any of the alleged
criminal acts.
2
11. Thereafter, on or about January 2009, Sr. Inv. Ogden told me that the SDA
wanted me to meet him at the State Police Brunswick station.
13. Bugbee and I also told SP Smith that it was a long established bipartisan practice,
procedure and de facto policy of the BOE to avoid potential
disenfranchisement by entering information provided by prospective AB
voters or their representative onto signed but incomplete AAB, for example,
where the designated space for “Where will you be on Election Day” is not
filled-in and the voter, the person designated on the AAB to receive the AB or
another representative provides that information to a BOE employee.
14. I had also assisted in producing the contested absentee ballots and their
applications at the hearing held before Supreme Court Justice Hon. Michael
C. Lynch on or about October 1, 2009.
15. The SDA never told me that I was a suspect or target of any investigation or that I
should not meet with him without an attorney before requesting that I do so. I
would not have met with him at any time without an attorney had I known that
I was a target of his investigation or that he had any personal animus against
me or any other conflicting personal or political interest in prosecuting me for
the alleged voter fraud and forgery in lieu of any person responsible for the
commission of those alleged crimes.
16. However, in view of all the facts, the credible evidence and the SDA’s actions, it
is my firm belief that the SDA made me the target of his investigation and
prosecution because of some personal animus he has against me. It is also my
firm belief that the SDA has brought this baseless political prosecution against
me and LoPorto in lieu of those Democrat incumbents and party workers who
are implicated by substantial credible evidence as having been involved in the
alleged voter fraud and forgery, primarily to advance his own personal
interests and apparent political ambition.
3
looking at me, asked if I wanted a drink although I had placed a near-full
bottle of water only inches from his file folder.
18. The SDA began talking by asking me if I knew the definition of irony. He then
said that years ago he moved to Rensselaer County from Texas and made a
“solid reputation” for himself by working very hard as an Assistant District
Attorney under District Attorney James B. Canfield. He added that fellow
staff members teased him because he had a cot in his office where he often
spent nights preparing cases.
19. Initially, I thought that the SDA’s self-aggrandizing statements were merely made
to impress me but I soon realized that they were intended, and taken, as threats
of criminal prosecution for personal and political reasons.
20. Specifically, the SDA said that when DA Canfield stepped-down from office for
Supreme Court, he wanted to be the Democratic candidate for DA, but was
told that he needed the support of my deceased father, Edward F.
McDonough, who was the Rensselaer County Democratic Party Chairman.
He was also told that he should purchase a ticket to a Democratic Party
fundraiser to talk to him about the matter. It was apparent that he was aware
that the Democratic candidate for DA likely would be, and was, appointed to
office by Governor Mario Cuomo to run for election as an incumbent.
21. The SDA then said that as suggested he had purchased a ticket to a fundraiser and
was introduced to my father as wanting to be the Democratic candidate for
DA, but that my father “turned his back on me” and “wouldn’t even talk to
me” about that possibility.
22. The SDA also told me he was not happy about that experience or my father’s
rejection of him as a possible Democratic candidate for DA. He added: “Lou
Catone became the candidate for DA and we all know how that turned out”
and it was probably best that “things turned out the way they did”. It was
then, and is now, obvious to me that he was alluding to the fact that Lou
Catone lost that election after the publicity of the federal criminal
investigation of my father as Party Chairman became everyday news.
23. As if on queue, Sr. Inv. Ogden walked into the room and the SDA said “in
finishing what I was talking about, I think you can now see how it is ironic
that now we are here, I am Special Prosecutor and I have the ability to make
you King for the Day”. He then said that he was giving me the opportunity to
tell him “everything”, but that he was “a very busy person” who did not have
“any time to waste.”
24. I then began to discuss what I had previously talked about with Sr. Inv. Ogden but
the SDA interrupted me and stated: “I am a very busy man and I want you to
4
tell me all about what went on with you and your friends in your Forgery
Factory”.
25. When I told the SDA that I did not know anything about the forgery of AAB/AB
or any other crimes, he warned me that “if you don’t tell me anything more,
the next time we speak will be at a Grand Jury” and so I decided to leave the
meeting at that time.
27. Ironically, my attorney initially defended the SDA on the basis of a presumption
of professional integrity and ethics. It was his opinion that no motion should
be made to disqualify him from the matter at that time even though I believed
then that it was obvious from his statements and threat to prosecute me for
forgery even though there was no allegation that I had any involvement in the
alleged crimes (because I did not) that he intended to do so for personal or
political reasons.
28. However, it soon became apparent even to my attorney that the SDA targeted me
for investigation and prosecution because of conflicting personal and political
interests and that his related conduct has resulted in the substantial violation of
my rights to due process and a fair trial that require his disqualification and
dismissal of the Indictment on the ground set forth in my attorney’s
affirmation.
29. It is respectfully submitted that the same is established by the relevant facts,
credible evidence and actions of the SDA.
31. I never “turned a blind eye” or with willful ignorance about the forgery of any
AAB, AB or AB envelope filed at the BOE or possessed by anyone
concerning the case.
5
entered false information in the Dickinson and/or Taylor AAB that he filed at
the BOE are not true. I never “made-up” or entered any false information on
any AAB filed by McGrath.
34. In fact, as McGrath knows, I informed Brown that some of the AAB that he
presented for filing were incomplete in that they did not have any designation
of how the respective AB was to be delivered to those voters (i.e. in person at
the BOE, delivered to an authorized person or mailed) while others did not
have the information of where the voter would be on election day. In
response, Brown said that he “was there” when the AAB was partially
completed and signed by the respective voters. He then requested that I “just
put” him in those AAB as the person authorized to receive their AB, but I
refused to do so and advised him to obtain the accurate information if he
wanted to have the AAB processed for release of an AB to the voters. We had
not yet talked about the other incomplete AAB at that time. Brown then said
that he would call Jim Welch and shortly after appeared to be talking on his
cell phone. I believe that I heard him say the name “Jim” as he talked but I
was not listening to his conversation or paying attention to his actions in those
moments because McGrath had entered the room by then and I began to assist
him in obtaining an updated absentee list from my computer. After Brown
ended his cell phone conversation he said that Welch could be entered on
those AAB. At that time, I asked O’Malley to come into my office and assist
Brown in completing those AAB that were missing where the voter would be
on election day and, to my knowledge he entered information on the AAB that
was provided by Brown but I was again assisting McGrath and not paying
close attention to Brown and O’Malley at that time. This all occurred at about
10:30 a.m. and 11:30 a.m. (contrary to McGrath’s assertion of 5 p.m.)
35. All of the BOE employees, and, specifically, Democrats Patricia Germain, Mary
Ellen LaPlante, Mary Sweeney and Kevin O’Malley as well as Republicans
Kerry Weatherwax, Bonnie Becker, Terri Jacangelo and Joe Mele were
subpoenaed to testify before the GJ; and all of them except two (Sweeney and
Becker) did so on the same day.
36. As discussed, through my attorney, I had given the SDA notice of my intent to
testify in the GJ long before the BOE employees were subpoenaed to testify.
6
37. However, after his first appearance before the GJ, O’Malley told me that “he had
never experienced anything like that in my life” and that the SDA was “very
aggressive and badgering” in his questioning. At the time, Kevin appeared to
be physically upset and completely unnerved over his GJ examination.
38. I am also aware that O’Malley told other BOE employees that the SDA was very
aggressive with him in the GJ and that he “felt almost like a criminal” because
of the manner in which he was treated.
39. BOE Democrat employees Mary Ellen LaPlante and Patricia Germain, who
testified on the same date as O’Malley and most others, told me that the SDA
also treated them in a very aggressive manner in the GJ and that they were
essentially required to give “yes or no” answers to questions even when they
called for some elaboration.
40. In fact, Mary Ellen LaPante told me that she felt that the SDA was “very rude” to
her and often did not allow her to answer questions completely. She said that
the SDA “cut her off” numerous times in her answers to questions and that he
apologized for his treatment of her as she left the GJ.
41. There is little doubt in my mind that the treatment of the BOE Democrat
employees was another intimidation tactic of the SDA designed to scare me
and prevent me from testifying before the GJ.
42. The SDA’s tactics ultimately worked because in view of all his actions I believed
that he would not treat me with impartial fairness before the GJ and the
cumulative effect of his conduct later dissuaded me from exercising my right
to testify in the GJ.
44. O’Malley subsequently testified again before the GJ and the SDA’s actions
concerning the same are stated in my attorney’s affirmation.
7
46. As stated, after his initial GJ appearance, O’Malley complained that the SDA’s
examination was confrontational and that he was not permitted to give any
explanation in response to many questions. If that is accurate, it is likely that
the SDA intentionally established the basis for a perjury prosecution to be
later used as a threat in effort to obtain testimony favorable for a prosecution
against me. In fact, it appears that he was successful in his effort to obtain
O’Malley’s false testimony against me.
47. It should also be mentioned that up until that time the SDA had repeatedly
professed in conversation with my attorney that, among other things, he would
treat me fairly before the GJ, he did not have any personal interest in the
prosecution of the matter and he did not have any political ambition.
48. However, up until the time of the GJ presentation the only allegation made against
me was the false incrimination of McGrath given to the SDA in return for the
benefits of a Cooperation Agreement only after the SDA had already
threatened to prosecute me for forgery. And, the simple reason for the
absence of any credible evidence incriminating me in the alleged crimes is
that I had absolutely nothing to do with their commission.
49. Therefore, the SDA was obviously desperate to obtain some purported evidence
against me no matter how suspect, weak or patently incredible and acted
accordingly in his conduct of the GJ presentation and specifically the
accusations of O’Malley.
51. It is interesting that the SDA was able to elicit from O’Malley the very testimony
that was needed to ostensibly corroborate the false incriminations of the only
prior witness against me, McGrath.
52. In any event, any testimony that O’Malley may have given by narrative or in
response to leading questions that in any way incriminates me in the
commission of the alleged crimes, as a principal or accessory, is absolutely
false.
53. In sum, regardless of any testimony that O’Malley may have given in order to
extricate himself from the threat of a perjury prosecution, I never directed him
to enter any false information in any AAB and he did not knowingly do so in
my presence as far as I know. To my knowledge, he assisted Brown in
8
completing several ostensible valid AAB only by entering onto them the
purportedly valid information Brown gave to him.
55. In any case, the cumulative effect of his conduct in the investigation of the case
and its presentation before the GJ made me believe that he would not treat me
fairly before the GJ. I therefore declined to testify.
McGrath
56. During the subject primary election period, McGrath bragged to me and others
that he had told WFP members including Welch and Sara Couch that he was
going to “give them their party back” by effectively taking control of it from
Bob Mirch through primary elections and placement of committee members,
etc. In fact, he did work very hard to win his inaugural election in 2009 and
was in my office daily at the time.
Brown
57. Brown was also working hard to win re-election in 2009 and told McInerney to
work as hard as possible to help him win the 2009 WFP primary. Brown
stated that he wanted to garner as many votes as possible in all elections so
that he could be politically positioned to become the President of the Troy
City Council and later, Mayor.
58. Prior to the voter fraud being made public, Brown was expected to be a future
leader in the Rensselaer County Democrat politics and elected office. He and
his family have substantial ties in local political communities.
Meeting at LoPorto’s
59. In regard to the LoPorto meeting that has been discussed, I was present only
because Brown had requested that I meet with him after the subject allegations
of voter fraud were reported in the media. Brown did not tell me what he
wanted to discuss or that anyone else would be present. Consequently, I was
surprised to find that I had actually walked into a meeting between him and
the party workers implicated as being involved in the alleged conduct, i.e.
Welch, Caird and Couch.
9
politics in about the year 2005. Since that time, he has been known as the
party’s most diligent and effective worker, primarily in regard to the City of
Troy elections. He has also been known to be the de facto chairman of the
City of Troy Democrat Party since about 2006, when Frank LaPosta was
elected the chair.
61. McInerney is also known to be very close with Rensselaer County Democrat party
officials and office holders. He is and has been involved in every aspect of
the City of Troy elections from recruitment of candidates to their election,
including fund-raising, campaigning and the obtaining and filing of AAB and
AB.
63. Prior to the 2007 elections, McInerney told me that because he had lost his job in
the State Assembly he intended to work very hard in the City of Troy Council
and District Attorney election campaigns in hopes to be rewarded with a
political appointment if successful.
64. Thereafter, McInerney worked so hard in the 2007 District Attorney campaign
that he and the Democrat candidate, Richard McNally, became good friends
after his election. They have remained good friends since then.
65. In fact, I believe that DA McNally disqualified himself from this case primarily
because of his friendship and political relationship with McInerney, who was
implicated by substantial testimonial and documentary evidence as the
primary suspect in the case.
67. It is therefore not surprising that McInerney has not been prosecuted and neither
has any other Democrat Party incumbent or party worker implicated by the
credible evidence as being involved, other than LoPorto.
LoPorto
68. LoPorto, although personable and a well-known local restaurateur, has been a
controversial and marginalized figure within the Rensselaer County Democrat
Party community for years. It is therefore no surprise that he is also being
prosecuted.
10
VI. McInerney and DA McNally Communications re Substituted Counsel
69. McInerney and I have been friends since grade school and we have had some
conversations about this matter contrary to the advice of counsel.
70. On or about December 3, 2010, at the time that there was much public and private
conversation about my stated intent to testify before the GJ, McInerney and I
had a brief conversation about the effect that the false allegations,
investigation and potential criminal prosecution was having on me and my
family, especially my children who had already been subjected to unpleasant
school-yard comments. At the time, however, there was no discussion about
legal representation, although in passing we both commented on the likely
substantial costs to defend the matter.
71. In particular, there was no discussion about the case itself or our attorneys.
73. Then, on the evening of December 7, 2010, fellow BOE employee Mary Sweeney
approached me at a board of education meeting and said that she had received
a call from McInerney who told her that he had spoken to DA McNally and
obtained from him the names of two attorneys for me to contact because they
would “do a good job at a lesser fee”. She did not elaborate on the matter any
further.
74. I was surprised, confused and concerned about the message, especially because I
had no prior discussion with McInerney about attorneys or DA McNally about
the case.
11
77. Furthermore, the prospect of my appearance before the GJ should have concerned
several people implicated in the commission of the alleged voter fraud, and,
specifically, McInerney, Brown and McGrath, because my testimony would
corroborate the known evidence in some material respects.
78. In any event, together with the later actions of the SDA concerning O’Malley and
the other BOE employees as discussed, the incident added to my decision not
to testify before the GJ as I had intended.
VII. Evidence of Past Similar AAB/AB Forgery: BOE Records re 2008 Election
79. On the 2010 Election Day, the BOE received a call from an irate man who said
that his wife had not voted but that her name had been forged at her polling
location.
81. In his investigation, Bugbee then discovered what appeared to be numerous other
incidents of forgery in relation to both the 2008 primary and general elections
on AAB that were obtained, released to and/or filed by McInerney.
82. Bugbee then compared the writing on McInerney’s voter registration card against
those forged AAB and concluded that the handwriting was the same.
83. Bugbee then provided the forged AAB and McInerney’s voter registration card to
the SDA and requested that the matter be properly investigated. Copies of
those BOE records are attached as Exhibit 17 to my attorney’s affirmation
84. Incredibly, the SDA later told Bugbee that he had forwarded the AAB to the State
Police but that they “were not impressed” and the matter would not be
investigated.
85. Since then, I have also reviewed the 2008 AAB that Bugbee provided to the SDA
and I recognize the handwriting on them to be McInerney’s. I have seen
McInerney’s handwriting countless times since grade school and I affirm with
absolute certainty that those documents contain his handwriting.
86. At this time, I am not surprised by what Bugbee discovered because after the
allegations of voter fraud in this case were made known I reviewed many of
the forged AAB and recognized McInerney’s handwriting on many them.
12
87. It must be noted that neither Republican BOE Commissioner Bugbee nor I knew
or had any reason to know about the past incidents of forgery now discovered.
Clearly, Bugbee did not have any reason or motivation to ignore any such acts
committed by or for the benefit of Democrats. That is self-evident from the
fact that it was Bugbee who disclosed the voter fraud that occurred in this case
as well as in 2008. The BOE does not have the ability to conduct the type of
inspection and investigation that would be required to check every document
filed to determine if there is any forgery. And, even if it did, that could not be
done because it would cause countless challenges to AAB and AB.
VIII. Evidence of Past Similar AAB Forgery: BOE Records re 2007 Election
88. Furthermore, I recently reviewed BOE records for the 2007 elections and have
discovered what appear to be numerous incidents of forgery in both the
general election regarding AAB obtained, released to and/or filed by
McInerney and/or that contain his handwriting. A copy of the same are
attached as Exhibit 1.
89. These documents further clearly show the SDA’s alleged misconduct in the
investigation of the matter and commencement of this baseless prosecution
against me instead of those responsible for his own personal and/or political
reasons.
90. Therefore, based upon all the reasons stated herein, I respectfully request that the
Court disqualify the SDA, dismiss the Indictment and appoint a qualified
Special District Attorney with authority to conduct a proper investigation and
prosecution concerning the incidents of voter fraud evidenced by the
substantial credible evidence existing.
____________________
NOTARY PUBLIC _______________________
Edward G. McDonough
13
To: Special District Attorney
Trey Smith, Esq.
Smith Hernandez, LLC
Rensselaer Technology Park
105 Jordan Road
Troy, New York 12180-8376
14