BY FRANK PARLATO
A number of revelations emerged this week as Artvoice continues its series on the New York State Attorney General’s case against political operative and lawyer G. Steven Pigeon.
Pigeon was indicted in June 2016 on charges of bribery, rewarding official misconduct of former State Supreme Court Justice John A. Michalek and larceny by extortion of Buffalo attorney Edward Betz.
Pigeon’s defense team, led by nationally known criminal and First Amendment lawyer Paul Cambria, made a motion to compel discovery from the Attorney General before State Supreme Court Justice Donald F. Cerio.
Among documents sought by the defense, which the state has declined to surrender, is the ‘supporting affidavit’ used as the basis of probable cause for a search of Pigeon’s home.
That search warrant, signed by Erie County Judge Michael Pietruszka, resulted in the seizing of Pigeon’s cell phone which contained a record of his emails. Some of those emails are said to be evidence which was used to charge Pigeon with bribing former Judge Michalek.
Contacted by the Reporter, former State Supreme Court Justice Robert E. Whelan said the state’s not surrendering the underlying affidavit is not something he would tolerate.
“It is a necessary part of discovery – which is designed around transparency,” he said. “I would order it as part of discovery.”
Several defense lawyers said they could recall no white collar case where the prosecution denied the defense access to a probable cause affidavit.
The New York State Attorney General’s office told Artvoice that the office does not comment on ongoing cases.
The US Supreme court holds that judges, not law enforcement, must authorize search warrants and these must be through an affidavit that there is probable cause to believe that a crime has been committed.
If a search is overly broad, if the warrant fails to specify what is to be seized, or if law enforcement submits false information in the affidavit, the search is unconstitutional and the evidence useless to the prosecution, being the “fruit of the poisonous tree.”
The search warrant protects citizens from investigatory overreach by requiring an impartial judge to authorize the search of people’s homes and papers.
The reticence of the state to surrender the supporting affidavit for the May 28, 2015 raid on Pigeon’s home, authorized by County Judge Michael Pietruszka, prompts notice of the relationship between Pigeon and Judge Pietruszka.
It is a matter of record that in 1996, then Erie County Democratic Party Chairman James Sorrentino had made a commitment to endorse Pietruszka for the NY State Supreme Court. Sorrentino however was ousted as party boss before he could fulfill his endorsement pledge to Pietruszka.
Sorrentino’s successor was Pigeon.
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) “City Judge Michael Pietruszka withdrew from the race for State Supreme Court … paving the way for the expected endorsement of fellow City Judge Eugene M. Fahey and further cementing the grip of incoming Chairman G. Steven Pigeon on Erie County Democrats…. 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 Sorrentino’s commitments and began moving toward support of Fahey.”
** (Sept. 22) “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.”
**(Sept. 26) 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’ for State Supreme Court and denied pressure was applied to Pietruszka to withdraw from the race.”
The record shows Fahey was elected to the State Supreme Court.
Two years later, Pietruszka, securing the Republican and Democratic party endorsements, ran for County Court Judge.
“Mike Pietruszka has it locked up,” Pigeon told the Buffalo News in May, 1998.
But some believed Pietruszka, by securing the Republican line, locked it up himself. Running uncontested, he became a 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.
A 2002 Buffalo News story about Pigeon’s power to select judges quotes Judge Pietruszka, who criticizes Pigeon for a disputed invoice a consultant tried to charge him for his County Court campaign.
“I was unopposed,” Pietruszka told the Buffalo News, “so why did I need a consultant?”
Pietruszka said he refused to pay, despite Pigeon urging him to pay it.
What is rare about this is not the 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.
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.
The state’s refusal to turn over the supporting affidavit used to persuade Pietruszka that there was probable cause to raid Pigeon’s home does not add confidence to the process..
Enter David Pfaff.
About three months before the search of Pigeon’s home, Pfaff, a political operative with decades of service with various government agencies, was waiting to catch a bus to go to work.
In February 2015, as Pfaff tells Artvoice, he was in his second month of a job with State Senator Marc Panepinto, when two men hopped out of a car and one of them waved and called his name. The men identified themselves as FBI Special Agent Brian Burns and New York State investigator Kenneth Dubrinski of the State Police Bureau of Criminal Investigation.
The men told Pfaff they wanted to talk. Pfaff said he was on his way to work. But “if you want to give me a lift downtown I can save two bucks on bus fare,” he said.
The agents agreed and Pfaff hopped into the back seat. While Dubrinski drove, Burns did the talking.
According to Pfaff, “The general tone of the questions were, ‘we feel like you have been caught up in something illegal (with Pigeon) that you didn’t know about. We think you’ve done things.”
Burns said there was illegal coordination between the WNY Progressive Caucus, an “Independent Expenditure Committee” that agents claimed Pigeon controlled, and various candidates’ campaigns.
“I would never knowingly or willfully break the election law,” Pfaff said.
Burns held up a folder. “We have evidence,” he said. “but we think you got used.”
“They were implying that I should tell them things about Steve Pigeon,” Pfaff told Artvoice. “They were encouraging me to tell them that Steve had done something wrong. I told them, ‘I don’t think Steve did anything wrong.’”
Burns told Pfaff he knew he was going through tough financial times, and his house was in foreclosure.
This was true. Pfaff was losing his home through a foreclosure occasioned by a four year period of unemployment, recently cured by his job with Senator Panepinto.
According to Pfaff, Burns made a dark allusion: “We know you got your job (with Sen. Panepinto) after our investigation started.”
Pfaff understood Burns to mean that Pfaff was hired to incentivize him from being a witness.
Pfaff told Artvoice, “I told Burns, ‘If that is true, I wish you had started your investigation years earlier.”
At the end of the drive, Burns told Pfaff, “Please don’t tell anybody we talked to you. We have an investigation ongoing.”
After they left, Pfaff did not hear anything more until May 28, 2015, when the entire community learned that FBI and State agents raided Pigeon’s home.
Then three months later, in late August 2015, Pfaff heard from agents.
“I came out of my house and they pulled right in front of the house and hopped out of the car,” Pfaff said.
“They said they wanted to meet with me. I said, ‘I can’t meet with anybody unless I have an attorney present.”
“Who’s your attorney?,” Burns asked.
According to Pfaff, “Burns seemed agitated and told me ‘You don’t want him. We have tried to keep you out of the news. We’re trying to help you. We heard that Senator Panepinto has told people that if your name winds up in the news you will lose your job.”
“Pete Reese was the wrong attorney to keep me out of trouble,” Pfaff said agents told him.
“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.’ Then they told me, ‘we will get you an attorney.’ Then they left.”
A few days later Pfaff received a letter from Judge Pietruszka assigning counsel to Pfaff at county taxpayer expense.
“I have assigned Mark Worrell, Esq. to represent you,” Judge Pietruszka wrote and provided Worrell’s contact information.
“Why am I getting an appointed attorney when I am not even charged,” Pfaff wondered at the time. “My impression was they wanted to get me an attorney so I will become a cooperating witness and help them.”
Pfaff wrote to the judge (Sept. 18, 2015) declining the judge’s assigned counsel, informing the judge that he “asked attorney Peter A. Reese to counsel me on this matter,” Pfaff wrote. “Please advise me if Mr. Reese can be compensated in the same manner as Mr. Worrell.”
Within days of Pfaff informing the judge he was going to use Reese, State BCI Investigator Dubrinski and FBI agent Kathy Garver showed up at Reese’s home telling him they wanted to talk to him.
Reese was headed for a court appearance, but said agents could interview him later at his house but any conversation would be videotaped and posted on his website.
According to Reese, “Dubrinski said, ‘You’re being defensive and hostile.'”
Reese said, “If you want to talk to me, these are my conditions.”
After Reese’s court appearance, he got a call from a friend who said the FBI contacted him and wanted to interview him about Pigeon at his residence.
Reese went to the friend’s home and found FBI agent Burns and Chris Bzduch, an investigator with the New York State Attorney General’s office present.
Artvoice interviewed the friend, who spoke on condition of anonymity, who confirmed the meeting Reese described to Artvoice took place.
According to Reese, Burns showed Reese an email Reese had previously sent to Pfaff concerning a contribution Reese made to the allegedly Pigeon-controlled committee.
Burns said they had email evidence of illegal coordination between Pfaff and various candidate’s campaigns.
Reese asked to see it. Burns said he would show it to Reese if he was Pfaff’s lawyer but, Burns said, “You’re going to be conflicted out since you are going to be called as a witness.”
Reese got testy. “Here at the law firm of Peter A. Reese, if you want to conflict me out, you will have make a motion before the judge. I will oppose it and I will bring TV cameras to the hearing. If I don’t like the decision of the judge, I will appeal the decision. I don’t leave that easy.”
“You’ll be getting yourself in some trouble,” Burns told Reese. “You better talk to Judge Pietruszka.”
Reese questioned Burns, “Let me get this straight, if I lie to the FBI that’s a crime but you can lie to me?”
Burns said the FBI can lie to aid their investigation.
Reese asked, “Then how do I know you are not lying now?”
The next day (Sept. 30) Judge Pietruszka wrote again to Pfaff informing him he had scheduled a meeting (Oct. 13) “to address your assignment of counsel issue” to be held in his court.
Reese wrote to the judge objecting, since Pfaff already told the judge he was represented by Reese.
“(W)hat prior communications, if any, have been made to the Court by prosecutors or law enforcement agents about this issue?” Reese asked. “If there are any records of such communications, I hereby request copies of the same immediately.”
Read correspondence between Reese, Pietruszka, and Pfaff:
Reese then described his meeting with agents to the judge: “I had been the recipient of a disturbing communication, which I took to be a threat. On September 29, 2015, I 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 (Pfaff) 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. … Special Agent Burns showed me a copy of an email which I had forwarded to my client several years ago. Mr. Burns gleefully indicated that he had seized all of my client’s emails, even though my client has never been served with a warrant allowing the authorities to seize his personal communications. He also told me that he had other emails which documented Mr. Pfaff’s ‘coordination’ with candidates of purported unauthorized, independent campaign mailings, although he did not show me any such documents….
“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.”
Judge Pietruszka responded the same day informing Reese that there had been “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…. advising me that he would rather be represented by you… “
The judge explained that since Reese was not on the eligible attorneys list for assigned counsel, he set up a meeting to find out whether Pfaff wanted to be represented by Worrell as assigned counsel, or Reese, which he would have to pay himself.
It is worthy of notice that Judge Pietruszka refers to Article 18-B of the County Law § 722 as his authority for assigning counsel to Pfaff.
This law requires the county to provide “counsel to persons charged with a crime… who are financially unable to obtain counsel.”
But it does not mention assigning counsel to a witness.
Former State Supreme Court Justice Whelan, who was the former President 8th District, New York State Supreme Court Justice’s Association, told Artvoice, “I can tell you I was unable to appoint counsel for anyone who is an indigent who has not been charged. There isn’t any authority in state or county law. In my opinion if a judge assigned counsel to a (potential prosecution) witness, he went beyond the level of his authority.”
Prominent civil rights and criminal lawyer Steven Cohen, while saying it would be good to change the law to provide assigned counsel for indigent witnesses, agreed that the law does not provide for such assistance.
“If the FBI and the judge got involved in the assignment of counsel, that is irregular,” Cohen said. “If there was collusion between the prosecutor and the judge that would be completely unethical. You should not have prosecutors saying, ‘We have this particular lawyer. We will get you a better lawyer.’ If this is true, there is something highly irregular about this.”
While Cohen praised FBI Special Agent Burns, saying he “goes in the direction the evidence takes him,” he had less than kind words for several prosecutors who he said habitually engage in prosecutorial misconduct.
The Assigned Counsel office told Artvoice that before a defendant can get assigned counsel, he has to prove inability to pay by showing financial records. Pfaff said he was never asked for any proof of finances before he was assigned Mark Worrell as counsel.
Reese again wrote to the judge (Oct 13), “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 …. You state that counsel was appointed pursuant to County Law 18-8, 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…”
Reese continued, “(L)aw enforcement agents who are not lawyers attempt(ed) to coerce 6th Amendment counsel to withdraw from a case by invoking your name, including your implied imprimatur on their tactic,” then he asked for an investigation by the Erie County Grand Jury, and asked the judge to forward his letter to the Grand Jury foreperson.
He copied Administrative Judge, Hon. Paula Feroleto and the District Attorney.”
The Oct. 13th communication between Reese and the Judge was the last time the two men communicated.
In June, Pigeon, on charges that did not have anything to do with the original reported cause of the search warrant, was indicted, based in part on email evidence found at his home between him and former Judge Michalek.
Now, in what may be another explosive revelation this week, Pigeon’s lawyers, through their motion papers, claim prosecutors told them that Michalek, who is expected to testify against Pigeon, lied to the FBI prior to his being charged.
The Pigeon defense team wrote, “(D)efense counsel met with members of the Attorney General’s prosecution team and federal prosecutors during which defense counsel was informed that former justice John A. Michalek was secretly recorded by members of the Federal Bureau of Investigation and that during those recorded conversations, former justice John A. Michalek was questioned about matters relating to the instant charges. Moreover, defense counsel learned that, on several occasions, former justice John A. Michalek made false statements in violation of 18 U.S.C. §”
Pigeon’s attorneys seek “any information regarding plea bargain deals or agreements that were made with John A. Michalek, including agreements or understandings not to charge him or members of his family with federal or state charges, including agreements not to charge John A. Michalek with the several federal felonies under 18 U.S.C. § 1001 which the prosecution team represented to defense counsel had been committed by John A. Michalek.”
While it may be all in the course of due process, and the honest pursuit of justice, a County Court judge who was prevented by Pigeon from being a State Supreme Court Justice signs a search warrant to raid his old adversary’s home, then he aids a potential prosecution witness to get an attorney… then there is a State Supreme Court Justice who is alleged to have lied to the FBI then cops a plea to testify against Pigeon.
There may be more things here than meet the eye, and all of it the public is, most assuredly, entitled to know.
Artvoice attempted to reach Judge Pietruszka by email and by phone, and FBI agent Brian Burns by email. Neither responded to our requests for comment.
Read Cambria’s Omnibus Motion with Exhibits: