Mark Sacha on District Attorney’s Failure to Prosecute Steve Pigeon

Below is Assistant Erie County District Attorney Mark Sacha’s complete statement accusing his boss, Frank Sedita, of refusing to prosecute Steve Pigeon for election law violations, as detailed by Mike Beebe and Bob McCarthy in this Buffalo News article:

My name is Mark Sacha and I am an Assistant Erie County District Attorney.  I have served in that capacity for over 22 years.  I was hired by the Honorable Richard Arcara in 1987.  I was promoted to supervisory positions by the Honorable Kevin Dillon and District Attorney Frank Clark.  Until January 2, 2009, I held the position of Deputy District Attorney with signing authority on behalf of District Attorney Clark.  I have been in charge of most of the specialized units of the District Attorney’s Office and in that time supervised over 100 Assistant District Attorneys.  I have been the chief public corruption prosecutor in Erie County over the past ten years.

As such I am thoroughly familiar with the New York State Election Law and the importance of Election Law prosecution.  I was the lead prosecutor in the investigation of the Paul Clark campaign for Erie County Executive.  It is in that capacity that I feel legally, morally and ethically obligated to speak out about matters that effect the public’s right to free and fair elections.  These matters involve conflicts of interest, abuse of discretion, and abuse of power.  These matters involve the District Attorney’s sworn responsibility to enforce the law and do justice in the public interest.  These matters include instances where the power of the District Attorney has been used improperly to protect political interests and to retaliate against me for pursuing an ongoing investigation.

In the summer of 2008, I along with other members of the Erie County District Attorney’s office and the FBI discovered evidence that certain monetary transactions and assumed name accounts had been used by agents of the Paul Clark campaign to conceal the identity of certain donors to the campaign.  On August 25, 2008 the Buffalo News ran a story quoting then District Attorney Frank Clark to the effect that the investigation had expanded to focus on “efforts to disguise the identity of donors”.  The article also attributed to DA Clark the information that Timothy Clark (brother of candidate Paul Clark) and Roger Peck, Jr.  were “under scrutiny”.  Roger Peck later took a misdemeanor plea in the matter on December 2, 2008.  At that time, the Buffalo News cited an unnamed source for the inaccurate proposition that Timothy Clark had not been charged because “evidence was insufficient to result in charges”.  No mention was made of other persons who may have been involved in the efforts to conceal the source of donations.

Election Law §14-120 (1) reads as follows:

§14-120.  Campaign contribution to be under true name of contributor

1. No person shall in any name except his own, directly or indirectly, make a payment or a promise of payment to a candidate or political committee or to any officer or member thereof, or to any person acting under its authority or in its behalf or on behalf of any candidate, nor shall any such committee or any such person or candidate knowingly receive a payment or promise of payment, or enter or cause the same to be entered in the accounts or records of such committee, in any name other than that of the person or persons by whom it is made.

During this time an election campaign was taking place for Erie County District Attorney.  The eventual winner of that three way contest was the present District Attorney Frank Sedita III.  On December 30, 2008 I personally handed to District Attorney Sedita a memorandum explaining the status of the Paul Clark investigation and identifying areas of the investigation that had not been completed.  To this day District Attorney Sedita has never made any effort to discuss the memo or the investigation with me at any time.  Several days later on January 2, 2009 on the first day of his administration I was called into District Attorney Sedita’s office, demoted and reassigned to arson prosecution.  DA Sedita refused to explain the reason I was being demoted and angrily informed me that I could resign if I so wished.

Let me make clear that I supported Frank Sedita III in the election campaign.  In fact he came to my office within one half hour of prior District Attorney Frank Clark’s announcement that he was not going to run for reelection.  I pledged my support and DA Sedita physically embraced me.  We worked together for twenty years and never once had a serious disagreement.  I admired his work ethic and jokingly referred to him as the best “political hack” we ever hired.  I did not know at that time how he had obtained his political endorsements nor did I know for sure who was involved in that process.  I did know that he had a close relationship with one of the people who was involved in the Paul Clark campaign and was a subject of the Clark memo.  I never advised Frank Sedita at that time about the status of our investigation but I am sure that others did.  I am sure this inadvertently caused a good degree of anxiety regarding the election.  However I and others investigating this campaign did our job the right way.  We followed the evidence without bias and I have no regrets.

What I do regret is that a person who I considered a friend and colleague chose to ignore an obvious conflict of interest and abused his discretion.  What I do regret is that DA Sedita took an oath one day and on the very next day abused the power of his office to cause harm to my family and myself to help a political friend.  I do regret that the only explanation given for his actions appeared in a Buffalo News article published on January 15, 2009 where Mr. Sedita stated “I’ve wiped out the entire middle level of administration”.  DA Sedita explained “I’m getting rid of bean counters and paper pushers”.  I was never a bean counter.  I was never a paper pusher, although I did push my memo into his hands on December 30, 2008.

That is why I must speak out.  Events leading up to my demotion as well as information I have obtained since that time make clear that I was demoted for reasons related to my work on the Paul Clark investigation and the District Attorney’s campaign for office.  It is now clear that no further action has been taken regarding the unfinished matters in my memo.  It is now clear that the District Attorney has “given a pass” to a political supporter and friend.  It is clear that person who received the pass has been involved in similar conduct as to what was discussed in my memo.  It is also clear that the reasons being given by the DA for failing to act are an effort to disguise a blatant conflict of interest and abuse of discretion.

Let me explain.  In an article published by the Buffalo News on September 11, 2009, District Attorney Sedita makes the claim that election law investigations are difficult, time consuming and somehow of less importance.  District Attorney Sedita also makes clear that he will not look into Board of Elections complaints against G. Steven Pigeon because “he lacks staff and resources”.  The District Attorney admits that he “read the memoranda” on the Clark investigation and that the FBI “conducted most of that probe”.

The public has the right to know the truth.  The memorandum that I wrote on the Paul Clark investigation is 13 pages long with over 50 pages of attached documentation.  The FBI was very helpful and cooperative but it was always understood that it was the responsibility of the Erie County District Attorney’s Office to prosecute any Election Law crimes.

Here is more of the truth.  The investigation was very successful.  It was too successful for the powers that be.  Compelling evidence was discovered of various Election Law violations.  Paul Clark took some responsibility.  Roger Peck and Michael Mullins took some responsibility.  However, when Frank Sedita III took the oath of office to uphold the laws of New York State on January 1, 2009, there were matters that had not been resolved.  Those matters were addressed in my memorandum and that is why the present District Attorney used the power of his office to demote me, remove me and effectively end the investigation.

Our investigation revealed evidence of unregistered corporations, clandestine meetings, suspicious money transfers and phony explanations.  The investigation revealed that Timothy Clark was involved in many of these events as an agent of the campaign.  The prior District Attorney basically told the Buffalo News that last year.  What has not been said but is well known to District Attorney Sedita is that his friend, supporter and adviser G. Steven Pigeon working with Timothy Clark was also an agent of the Paul Clark campaign and was involved in a number of the transactions described in my memorandum of December 30, 2008.

It is now my understanding that Mr. Pigeon was instrumental in the endorsement and election of District Attorney Sedita.  This was all happening at the same time that our investigation was uncovering evidence of possible Election Law violations.

Prosecuting the powerless is easy.  The real test is when you are asked to investigate the powerful.  District Attorney Sedita so far has failed the test.  However all is not lost.  I call upon District Attorney Sedita to publically acknowledge and rectify his mistakes.  I call upon him to publically acknowledge his abuse of discretion and conflict of interest regarding the Clark investigation.  I ask District Attorney Sedita to follow the example of Cattaraugus County District Attorney Edward Sharkey and recuse himself from a case where he has a clear conflict of interest.  I call upon him to refer the case for review by an unbiased prosecutor.  I call upon him to share information with the New York State Board of Elections so that they can take appropriate action.  I call upon the District Attorney to reconsider his public comments, attitude and policy toward Election Law investigations.  As his present policy is disingenuous, erodes public confidence and encourages serial violators of the Election Law to continue their conduct to their own selfish, political and financial benefit.

Finally, I call upon District Attorney Sedita to apologize both publically and privately to myself and my family for his disgraceful conduct by retaliating against me.  Such conduct not only prevents justice from being done in this case, it discourages other prosecutors from acting responsibly and ethically in future cases for fear of retaliation.

The public has a right to expect all of the above from its chief law enforcement official.