State Attorney General Eric Schneiderman’s office has filed an appeal in state Supreme Court, asking that a decision to suppress key evidence in its case against political operative Steve Pigeon be overturned.
The notice of appeal, filed in late July and obtained by City & State this week, asks the Fourth Department of the Appellate Division to review a decision made by state Supreme Court Justice Donald Cerio Jr., a Madison County judge brought in for the highly charged political corruption case. In a June ruling, the judge had sided with the defense in disallowing emails between Pigeon and former state Supreme Court Justice John Michalek to be submitted as evidence. The AG’s office had planned to use the emails to show that favors and gifts from Pigeon – who had cases in front of Michalek at the time – rose to the level of bribery.
Schneiderman’s office, which has also filed a motion to reargue the eligibility of the emails, claims that the email evidence is crucial to its case. In the court papers, his office argues that the suppression of the emails ”has rendered the sum of the proof available as of this date to the People with respect to the criminal charges that have been filed by way of the instant indictment so weak in its entirety that any reasonable possibility of prosecuting those charges to conviction has been effectively destroyed.”
The trial for the state charges was originally set to begin this month, but the suppression of the email evidence, a significant setback in both the state and federal cases, has brought uncertainty. Neither trial would be likely to start before issues surrounding the emails are settled.
Cerio issued a ruling in late June stating that, as Pigeon’s defense team had argued in April, search warrants signed on May 27, 2015, and March 2, 2016, were not properly executed within the 10-day time period spelled out in the documents. While the AG’s office requested the contents of Pigeon’s Google email accounts within the proper time frame, Google did not return contents of the digital messages they were seeking in time.
The AG’s office also indicated that it has since served a new search warrant seeking the same information, and may serve more warrants if necessary, and is “attempting to work with defense counsel” to have that evidence allowed. Should that evidence be allowed, the state would withdraw its appeal, according to the documents.
Amy Spitalnick, a spokesperson for the Attorney General, declined to comment on the appeal in an email to City & State, instead referring to statements she made at the time of Cerio’s decision.
“We respectfully disagree with the court's decision regarding this technical issue and will soon determine how to best move this important prosecution forward,” she said at the time. “We appreciate the court stating that our office has proceeded in good faith at all times on this matter.”
Paul Cambria, the lead attorney on Pigeon’s defense team, did not immediately return calls seeking comment.
Pigeon, a controversial political operative and former Erie County Democratic Committee chairman, faces a long list of state and federal charges, the result of a multi-agency investigation prompted by complaints to ethics offices about campaign finance irregularities.
State and federal law enforcement agencies executed search warrants on his home - as well as the homes of former Buffalo Deputy Mayor Steve Casey and Chris Grant, a political adviser and top aide to Rep. Chris Collins – in May of 2015, seizing documents, computers and phones.
Casey and Grant, who have both done work for Pigeon on political campaigns, were not charged.
Michalek resigned from the bench after Schneiderman’s office brought charges against him, and he agreed to testify in the Pigeon case in exchange for leniency on his own charges.
Pigeon, who says he is innocent and has called the investigation and subsequent legal actions a “political witch hunt,” faces 13 charges brought by the state, including bribery and illegally coordinating with candidates and one federal charge for allegedly arranging for a contribution from a foreign donor to Gov. Andrew Cuomo’s 2014 campaign, a violation of federal election law.
A copy of Schneiderman's filing is below:
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