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Sedita ordered to answer questions; Secret memo is at the center of ousted prosecutor's lawsuit against district attorney

A federal judge has ordered Erie County District Attorney Frank A. Sedita III to answer questions about a secret memo at the center of a lawsuit alleging political favoritism by the prosecutor.

U.S. Magistrate Judge Hugh B. Scott stopped short of declaring the memo a public document, but said it can be used in the federal court case brought by Mark A. Sacha, the former prosecutor suing Sedita over his firing in 2009.

The memo details the alleged crimes of G. Steven Pigeon, former Erie County Democratic chairman, and is at the center of Sacha's claims that Pigeon avoided prosecution because of his political and personal relationship with two successive district attorneys.

Scott also ordered former district attorney Frank Clark to answer questions about the memo.

"We think the memo clearly shows Steve Pigeon was violating election law," said Matthew J. Fusco, one of Sacha's lawyers, "and we want to know why he got a pass."

The memo is at the heart of Sacha's suit claiming Sedita illegally fired him after he went public with his accusations about political favoritism in the office.

Sacha, who wrote the memo when he was still a prosecutor, wants to make it public. Sedita has been fighting to keep it secret.

From Day One, Sedita has argued the 13-page memo and 50 pages of documentation are confidential grand jury documents he's legally obligated to keep secret. In court papers, he claimed some of the documents were obtained through grand jury subpoenas.

"We're happy with the decision," said Adam W. Perry, one of Sedita's lawyers. "It vindicates our position."

When asked how, Perry said it was never Sedita's intention to keep the memo secret but rather to limit its use so it won't be made public.

In his ruling, Scott said the memo "may be used for the purposes of this lawsuit only. The documents shall not be disclosed to non-parties."

The one exception the judge made was witnesses in the suit, including Clark, Sedita and Sacha.

Sacha's suit, filed in late 2009, details Pigeon's alleged involvement in laundering of money during the 2007 election for county executive and raises questions about his political dealings with Sedita and Clark.

"I followed the election law to the letter," Pigeon said Friday. "I was shown no favoritism because I broke no laws."

Sacha doesn't buy that and thinks Sedita's real motivation in trying to keep the memo secret is a desire to avoid bad publicity until after next year's election.

Right now, Sacha v. Sedita is scheduled to go to trial in mid-September, shortly after the primary but well before the November general election.

Perry said the blame for any delays belongs with Sacha, not Sedita. He pointed to a series of motions by Sacha that, in his eyes, have bogged down the case.

"My client wants this case over as soon as possible," he said.

For the better part of a year, Sacha has argued in favor of releasing his memo to the public. Sedita has fought that effort every step of the way and, in April, asked a state judge to order Sacha to return his copy of the memo.

The judge ruled against Sedita but stopped short of ordering that the memo be made public. He did, however, declare that "the records are not grand jury secrets."

Sedita appealed the judge's ruling and has continued to take the position that the memo is a confidential grand jury document. And one of the consequences of his stance was Clark's refusal to answer questions about the memo during his deposition.

Fusco said Scott's decision will now force Clark, who will be deposed again, and Sedita to testify.

"We're very pleased," he said, "and it's consistent with the state court decision."

Perry views Scott's decision in a much different light, suggesting it stopped well short of dismissing Sedita's stance on the memo.

"These are absolutely positively grand jury documents," he said, and "the judge heavily limited the disclosure of these documents."

Sacha doesn't buy Perry's argument and is quick to note that a grand jury was never empaneled to hear the allegations against Pigeon, a fact Scott also referred to in his recent court order.

"It appears undisputed that the documents at issue were not presented to a grand jury," the judge said. "To the extent that the defendants are asserting a "public interest privilege" with respect to these documents, the defendants have not met their burden."

Sacha's memo reportedly details his investigation into Pigeon and shows that he laundered a $10,000 contribution from the campaign of former County Executive Joel A. Giambra to the unsuccessful campaign of former West Seneca Supervisor Paul T. Clark, a Pigeon ally.

Paul Clark, who failed to get the Democratic endorsement for county executive, took a misdemeanor plea deal in a separate case in which he was charged with accepting illegal campaign donations.

Pigeon, meanwhile, was never prosecuted. In addition, then-Gov. David A. Paterson denied Sacha's request to appoint a special prosecutor to probe the allegations.

Nevertheless, Peter J. Kiernan, Paterson's counsel, referred the matter to the U.S. Attorney's Office in Manhattan.

In his suit, Sacha contends that by the summer of 2008, he had concluded that both Pigeon and Timothy M. Clark, brother of Paul Clark, were guilty of felony and misdemeanor violations of state criminal and election laws.

Timothy and Paul Clark are not related to Frank Clark.

Fusco said Scott's decision is more than just a legal victory for his client. It also suggests that Sacha did not break the law when he went to the media and the public with his concerns about favoritism in the DA's office.

"He was not doing anything wrong," Fusco said. "He was simply informing the public of a problem."

In his court papers, Sacha suggests that Pigeon escaped prosecution because he helped orchestrate the political endorsements that allowed Sedita to win election as district attorney once Frank Clark retired.

Pigeon has acknowledged his friendship with Frank Clark but insists he and the then-district attorney never discussed Sacha's investigation.

Sedita, who had been a deputy to Frank Clark, also denied the allegations and has argued that Pigeon was nothing more than a witness in the investigation. He says he fired Sacha for misconduct after he took his story to The Buffalo News.

Two months later, Sacha filed suit in federal court, contending that his dismissal violated his First Amendment right to free speech and his rights as a whistle-blower.

He's seeking $300,000 in damages and reinstatement to his job.

email: pfairbanks@buffnews.com