By Frank Parlato;
A story about Erie County Judge Michael Pietruszka role in the New York State Attorney General’s case against political consultant G. Steven Pigeon, published in Artvoice on Sept. 8, prompted opposing affidavits filed before State Supreme Court Justice Donald Cerio last week.
Oral arguments will be heard today.
Pigeon was indicted in June, charged with bribing former New York State Supreme Court Justice John A. Michalek and extorting attorney Edward Betz.
Pigeon’s attorney, Paul Cambria, cited the Artvoice story as the basis of his Sept 15 affidavit arguing that, if the story is true, it suggests Judge Pietruszka may not have been a detached and neutral judge when he signed warrants authorizing searches of the home of Pigeon and his email accounts through Google in California.
Cambria’s affidavit led to a counter affidavit filed on Sept. 23 by Assistant Attorney General Susan Sadinsky arguing that Erie County Judge Michael Pietruszka was neutral, impartial and detached and that the Artvoice story was biased, conclusory, baseless, and wrong.
Also debated by the competing affidavits was the question of whether Judge Pietruszka acted improperly in attempting to assign counsel to a potential witness during the New York State Attorney General’s investigation of Pigeon, as reported in Artvoice.
Cambria’s affidavit summarized the Artvoice article as having asserted that Judge Pietruszka appeared to have had an adverse relationship with Pigeon based on an election event in 1996 and a billing dispute in 1998 and raised the issue, consequently, as to “whether the search warrants were issued by a neutral and detached magistrate, given the political and/or professional history between the Judge and Mr. Pigeon, as well as the purported financial dispute?”
Sadinksy wrote that the Artvoice article mentions events dating back to 1996 and 1998” and adds that this was Artvoice author “Parlato’s purely speculative conclusions that these long ago events somehow prevented Judge Pietruszka from acting as a neutral and detached magistrate when he signed search warrants in 2015 and 2016 (and) are entirely without merit.”
A reading of the Artvoice article will show that this writer made no conclusions, speculative or otherwise, that Pietruszka did or did not act in a neutral or detached manner based on any events new or old.
Artvoice wrote: “That Pigeon deprived Pietruszka of the endorsement for justice of the State Supreme Court is established through reports in the Buffalo News.
“(Sept. 13, 1996) ‘… Pietruszka appears to be another victim of the internecine warfare that split Erie County Democrats for more than a year…. Pigeon… said he was not bound by (former Democratic Party Chairman Vincent) Sorrentino’s commitment (to endorse Pietruszka) and began moving toward support of (Eugene) Fahey.’
“(Sept. 22, 1996) ‘Pietruszka ended his two-year campaign for Supreme Court when it became clear he stood no chance with the Erie County party’s new leadership (i.e. Pigeon).’
“(Sept. 26, 1996) Some Democrats complained that Pigeon ‘engineered a State Supreme Court nomination for Pigeon’s ally, Eugene M. Fahey, over City Judge Michael Pietruszka …. (Pigeon) called Fahey the ‘better choice’ (than Pietruszka) for State Supreme Court and denied pressure was applied to Pietruszka to withdraw from the race.”
After quoting Buffalo News stories, Artvoice wrote factually, “(in 1996) Fahey was elected to the State Supreme Court. Two years later, Pietruszka… ran for County Court judge.
“Over the intervening years, Fahey rose from State Supreme Court to the Appellate Division and finally the Court of Appeals, the highest post in the state judiciary. Pietruszka remained a county judge, who divides his time between Erie and Genesee counties.
Artvoice also quoted from a 2002 Buffalo News story that quoted Judge Pietruszka criticizing Pigeon over a disputed invoice and did note: “What is rare about this (news story) is not the (mention of a ) billing dispute, or campaign squabbling, but that a sitting judge commented in the media about his own campaign and, ironically, of all people, he criticizes Pigeon.”
While Sadinsky calls this “purely speculative conclusions (by Artvoice) that long ago events somehow prevented Judge Pietruszka from acting as a neutral and detached magistrate when he signed search warrants in 2015 and 2016,” the Artvoice article merely concludes factually and not at all speculatively that “Thirteen years later, as law enforcement sought a judge to sign a warrant to search Pigeon’s home, they sought the judge whose judicial destiny was altered by the man whose home they wanted to search.”
Additionally, the Artvoice article made no assertions, allegations or speculative conclusions about Judge Pietruszka as it related events described by David Pfaff, his lawyer, Peter Reese and letters between them and Judge Pietruszka.
Cambria raised the issue that Judge Pietruszka, the same judge who signed the search warrants, also got involved in attempting to assign a taxpayer funded attorney to Pfaff, “a potential witness against Mr. Pigeon, allegedly at the request of law enforcement officers, when there is no authority to assign counsel under such circumstances… (and) when… Mr. Pfaff indicated that he had retained a private attorney, thereby interfering with the attorney-client relationship, and when there is no evidence that the Judge had any proof of Mr. Pfaff s financial eligibility for (assigned counsel) appointment, particularly when the law enforcement officers who allegedly requested (assigned counsel) were aware that Mr. Pfaff was employed…”
Sadinsky dismissed this argument out of hand, writing, “The defendant’s … allegation that Judge Pietruszka engaged in an act of impropriety when he assigned an attorney to represent an uncharged potential target in … the investigation of (Pigeon) is also unavailing. … an assignment of attorney to a person not yet financially qualified for a free lawyer has been a routine practice in Erie County. Based on a conversation on September 19, 2016, that this office had with Robert N. Convissar, Chief Defender of the Erie County Bar Association Aid to Indigent Prisoners Society, Inc., Assigned Counsel Program, there is a longstanding practice of assigning counsel to a potential defendant prior to charges being filed.”
This is a fascinating statement on the part of Sadinsky since it appears to be a secret withheld from the taxpayers who pay for assigned counsel that anyone can get a free attorney regardless of financial need and even if they are or never will be charged.
Artvoice called and sent an email to Convissar at the assigned counsel office but did not immediately get a return phone call.
An email sent on Sept. 26, is as follows:
“Hello Mr. Convissar;
“You were quoted recently by Asst. Atty. Gen. Susan Sadinsky to the effect that potential defendants (not yet charged and possibly never to be charged) are routinely assigned counsel and without any financial eligibility determination.
“Ms. Sadinsky wrote: ‘an assignment of attorney to a person not yet financially qualified for a free lawyer has been a routine practice in Erie County. Based on a conversation on September 19, 2016, that this office had with Robert N. Convissar, Chief Defender of the Erie County Bar Association Aid to Indigent Prisoners Society, Inc., Assigned Counsel Program, there is a longstanding practice of assigning counsel to a potential defendant prior to charges being filed.’
“Is this true? and if it is true what is the legal authorization for spending taxpayer money for people not yet charged and without a financial determination of need or eligibility?
“Why is this not mentioned in the website for assigned counsel?
“The phone for the assigned counsel (716-856-8804) features a recording which informs, ‘…Under state and county law we cannot assign an attorney nor can anyone unless we obtain proof of their financial status and determine their eligibility…’
“The listener is then asked to have financial documents ready and wait until an operator to come on the phone to ask questions about their financial status.
“However, is there is a separate but unequal practice for some people to get their attorney first? then how does the public find out if they are eligible for, as Ms. Sadinsky states, ‘the routine practice” of “getting an assignment of attorney for a person not yet financially qualified?’
“If you would either call me at 716-990-5740 or email the answers to these questions I would be appreciative.
(end of email)
Is there any protocol – such as a target letter – in order to get a free (at taxpayer expense) attorney for persons not yet charged with a crime?
The law itself provides for free attorneys for indigent people but grants no authority for someone not yet charged.
Article 18-B of the County Law § 722 requires the county to provide “counsel to persons charged with a crime… who are financially unable to obtain counsel.”
It does not mention assigning counsel to a potential defendant or witness and requires the defendant to be indigent.
The website of the Assigned Counsel Programs (http://assigned.org/) also does not mention the assigned counsel program providing free attorneys for people not qualified for financial eligibility and not yet charged with a crime.
The home page reads: “The Assigned Counsel Program is a project of the Bar Association of Erie County. The Program coordinates the assignment of attorneys to represent, at no cost to the client, individuals who are charged with a crime or a violation which could result in incarceration and who cannot afford to retain an attorney….
“All clients must first be referred to the Program by the Court, and are required to document their financial need. Clients seeking counsel should not contact the Program unless they have been referred by the Court.”
While Sadinsky claims the assigned counsel program routinely assigns counsel to individuals not charged with a crime without checking financial need (a millionaire could get one) this seems to be worthy of investigation as to how this practice occurred (if it has occurred) how widespread it is and how often people who are “potential defendants” and are never charged get free attorneys and how much this costs taxpayers.
Does this practice go on elsewhere?
It might also be interesting to ascertain if this extralegal practice is used by prosecutors to get plea deals by telling someone they are a potential defendant, arranging with a judge to assign counsel then arranging with the assigned counsel to hop over and cop their client a plea.
But there is another problem.
While Sadinsky argues that Pfaff was a potential defendant, Pfaff claims he was told he was a potential witness and was never given a Miranda warning nor did he receive a target letter indicating he was a potential defendant.
As reported in Artvoice, in late August 2015, according to Pfaff, FBI agent Brian Burns made a surprise visit and when Pfaff told Burns he couldn’t speak to him without his attorney, Peter Reese, according to Pfaff, Burns told him, ‘You don’t want Reese. We have tried to keep you out of the news. We’re trying to help you. … Pete Reese is the wrong attorney to keep you out of trouble.”
“I still have to get an attorney, even if Pete doesn’t represent me, before I can talk to you,” Pfaff said. “And I can’t afford an attorney.’
Burns said, “we will get you an attorney.”
On September 4, 2015, Pfaff received a letter from Judge Pietruszka assigning him counsel at Erie County taxpayer expense.
“I have assigned Mark Worrell, Esq. to represent you,” Judge Pietruszka wrote and provided Worrell’s contact information.
The letter from Judge Pietruszka does not mention whether Pfaff was a potential defendant or witness.
He certainly was not charged.
On September 18, 2015, Pfaff informed the judge that Reese was his attorney, writing, “I’ve asked attorney Peter A. Reese to counsel me on this matter. Please advise me if Mr. Reese can be compensated in the same manner as Mr. Worrell.”
After telling the judge Reese was to be Pfaff’s attorney, on September 29, 2015, Reese received a surprise visit from the FBI and was told by FBI Special Agent Burns that he could not represent Pfaff due to a conflict and that he “better talk to [the] Judge (Pietruszka)” about this issue.
Reese said Burns told him, “You’re going to be conflicted out since you are going to be called as a witness.”
According to Reese, when Reese said he would fight that in court and in the media, Burns told him, “You’ll be getting yourself in some trouble. You better talk to Judge Pietruszka.”
Reese told Artvoice that he felt as though Burns was suggesting he had the “judge in his pocket.”
The next day, September 30, 2015, the Judge, without copying Reese, but copying Worrell and Sadinsky, informed Pfaff that “a meeting has been scheduled to address your assignment of counsel issue” on October 13, 2016 in the judge’s courtroom.
Pfaff informed Reese and, on October 5, 2015, Reese wrote Judge Pietruszka:
“I represent Mr. David B. Pfaff and write to express my concerns …
“First, while Mr. Pfaff notified the Court … that he was represented by me, the Court recently wrote directly to my client …. to inform him that a meeting has been scheduled for October 13th ‘to address your assignment of counsel issue.’ This letter was not addressed to me in any manner and I would have been unaware of it had Mr. Pfaff not brought it to my attention.
“Neither my client nor I had any prior knowledge that you believed there was such issue and we are concerned about what prior communications, if any, have been made to the Court by prosecutors or law enforcement agents about this issue. If there are any records of such communications, I hereby request copies…
“I did contact the Court’s staff on the morning of September 30th to inform the Court that I had been the recipient of a disturbing communication, which I took to be a threat. On September 29, 2015,1 was told repeatedly by FBI Special Agent Brian A. Burns that I could not represent Mr. Pfaff as I was going to be a witness in the case against him and that I ‘better talk to Judge Pietruszka’ about this. This suggests that there have been prior communications with the Court about this issue, without any notice to me or my client.
“Instead of responding to my communication, however, the Court ignored it and sent the letter dated September 30, discussed above.
“Among my concerns is whether there is an effort to artificially disqualify me as Mr. Pfaff’s counsel to deprive him of his choice of preferred counsel and therefore threaten to violate his federal and state constitutional right to counsel in criminal matters.”
On that same day, Judge Pietruszka wrote Reese:
“There was some confusion with regard to Mr. Pfaff’s representation. At the request of the NYS Attorney General’s Office, I appointed Mark Worrell to represent Mr. Pfaff under NYS County Law Section 18-B. A letter was sent to Mr. Pfaff to advise him of this appointment.
I then received a letter from Mr. Pfaff that was unclear as to the issue of representation, advising me that he would rather be represented by you, with your fees being charged to Erie County’s Assigned Counsel Program. The October 13, 2015 conference was scheduled to explain to Mr. Pfaff that this Court could not authorize your payment by the county as you were not on the Assigned Counsel’s eligible attorneys list. It was my intention, at that point, to have Mr. Pfaff decide whether he would be represented by Mr. Worrell under the Assigned Counsel Program, or be represented by you as his retained attorney.
“As … your letter … confirm(s) that Mr. Pfaff has, in fact, privately retained your services himself, there is no longer any reason for the October 13th conference, and I am cancelling it.
“Thank you for clearing up this matter.”
On October 13, 2015, Reese again wrote to the judge,
“… your (latest) letter fails to address several of the issues … and raises … additional questions that need to be answered.
“You state that you appointed counsel at the request of the Attorney General’s office, yet their authority to make such a request is unclear as their interests are hostile to Mr. Pfaff’s. Their communication appears to be ex parte so the question arises of which exception to the general ban on such communications applies here?
“You state that counsel was appointed pursuant to County Law 18-B, however, that statute only allows counsel to be appointed to represent someone ‘charged with a crime.” I have no information that Mr. Pfaff has been so charged.
“It is difficult to understand how you feel that Mr. Pfaff’s letter ‘…was unclear as to the issue of representation,..’ My client clearly indicated that he declined your assignment of Mr. Worrell to represent him and stated, ‘After careful consideration I’ve asked attorney Peter A. Reese to counsel me on this matter.’ What is unclear about this?
“You have failed to explain why the Court completely ignored my communication to the Court’s staff on the morning of September 30th informing the Court that I had been the recipient of a disturbing communication, which I took to be a threat: ‘On September 29, 2015,1 was told repeatedly by FBI Special Agent Brian A. Burns that I could not represent Mr. Pfaff as I was going to be a witness in the case against him and that I ‘better talk to Judge Pietruszka’ about this.’
“The issues that remain unanswered by your letter include:
“1. My request for copies of all records pertaining to any prior communications between the Court and prosecutors or law enforcement agencies.
“2. The propriety of law enforcement agents who are not lawyers attempting to coerce 6th Amendment counsel to withdraw from a case by invoking your name, including your implied imprimatur on their tactic.
“3. Whether Mr. Pfaffs constitutional rights to counsel, state and federal, have been violated….
Reese said that following this letter he never heard further from the court.
Whether any of this is relevant or not in the question of whether Judge Pietruszka, who signed the search warrants and tried to assign counsel for a witness and/or defendant who was not charged, was the prosecution’s choice of judges or if he just happened to be the impartial, neutral and detached judge well suited to do his duty in the Pigeon case who was on hand to serve justice is a matter to be decided by a fellow Judge, Donald Cerio.