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Acting DA Flaherty cites personal story to show commitment amid criticism

Michael J. Flaherty Jr. says the challenge of running for district attorney while also serving as Erie County’s top prosecutor isn’t as hard as the challenge he faced in November 2008.

Flaherty had been working with his father in private practice for three years and was still coming to grips with the fact that his father was struggling with a rare and fatal form of cancer. His path seemed clear then. He would stay with his father until he died, and eventually assume the practice.

But then he got a call from Frank A. Sedita III, who had just won the district attorney’s race and asked Flaherty to return to a leadership role in the DA’s Office after leaving three years earlier.

“It was the most difficult thing I had to do,” said Flaherty, who at the time believed that his father only had months to live.

But his father gave his blessing and said Flaherty belonged in the DA’s Office. And that’s where he has stayed. He moved up the ranks over nearly 20 years, finally propelled to the position of acting DA in January. That makes him the man to beat in a tough, three-way Democratic primary race.

The target on Flaherty’s back is a big one, with John J. Flynn Jr. and Mark A. Sacha hurling political knives at him at every opportunity and linking him to many of Sedita’s most unpopular decisions. Although Flaherty, 51, enjoys the newsmaking and fundraising advantages of incumbency, he also enters Tuesday’s primary with no party endorsements.

“I’m not a political person, obviously,” he said.

If Flaherty doesn’t win the Democratic primary, he will be off the general election ballot and out of a job.

Despite all this, Flaherty projects a surprisingly mild demeanor in the face of critics. He is betting his record of accomplishment will return him to office in January.

“Good government is good politics,” he said while sitting at a lunch table where he used to eat with his dad every Thursday.

Touts record as prosecutor

In campaign ads, Flaherty touts his aggressiveness in prosecuting cases. For the first seven months of the year, he said, he prosecuted 39 percent more cases across the board and more than doubled the number of convictions in homicide cases, compared with the same period last year.

He has established a Public Integrity Unit to recommend ethics reforms and address corruption, pursued greater community outreach, and worked harder to recruit and diversify the white-dominated DA’s Office, he said, although he acknowledges that he has further to go. Donna A. Milling, his second in command, is the first woman of color to hold the high-ranking position of first assistant district attorney, he said.

Flaherty also took credit for re-establishing the DA’s Narcotics Unit, which had been dismantled under Sedita, who now is a State Supreme Court justice. If he is elected district attorney, he said, dealing with the dramatic rise in opioid drug deaths will remain a priority, as well as matters of public corruption.

Flaherty has been criticized for rarely serving as the lead prosecutor in major cases and continuing the practice of accepting campaign contributions from his staff.

In response, Flaherty says he has done well enough as a prosecutor to be promoted to higher administrative positions early and often in his career. He doesn’t keep track of which staff members contribute to his campaign, he said, and if they do so, it’s because they like him and trust his evenhanded leadership.

Regarding Sacha, his top political critic, Flaherty said his former colleague in the DA’s Office would not win in-house support against him. In fact, he said, Sacha and other deputies under Sedita’s predecessor as DA, Frank J. Clark, fostered such a negative working environment that many talented lawyers quit and took jobs elsewhere during that time.

Flaherty was one of them, leaving his position as grand jury bureau chief in 2005.

On the defensive

Opposing candidates Flynn and Sacha have repeatedly and aggressively painted Flaherty as a lackluster buddy and yes man under Sedita. They are convinced that Sedita’s reputation for not taking tough cases to keep his conviction percentage high undermines Flaherty’s ability to project himself as an aggressive career prosecutor.

During a recent debate and in follow-up interviews, Flaherty has repeated a similar refrain: That he should be judged by his own actions, not those of his former boss. But his critics have worked hard to put him in Sedita’s shadow. Among the issues that Flaherty has needed to address:

The Barry T. Moss case – Moss was killed in a hit-and-run incident one night in December 2013 as he walked or rode his bicycle along Route 5 in the Town of Evans. Town police have repeatedly pointed the finger at former Evans bar owner Gabriele P. Ballowe. Police said broken pieces of her sport utility vehicle were found near Moss’ body.

In 2014, The Buffalo News reported that a grand jury had voted to indict Ballowe on felony charges but took a second vote against indictment after Sedita sent a top aide to tell the grand jury there was insufficient evidence to convict. Flynn and Sacha say Flaherty was that aide.

Flaherty neither acknowledges nor denies this. Instead, he says Sedita made his decision based on the evidence at the time. Flaherty reopened the Moss case shortly after becoming district attorney in January. He said he encouraged Evans police to bring forward new evidence, which made the new indictment possible. A grand jury indicted Ballowe in June.

Ties to G. Steven Pigeon – Opponents have attempted to tie Flaherty to Pigeon, a local political operative indicted in June on bribery, extortion and other charges after an investigation by the state Attorney General’s Office. They contend that Sedita and Flaherty gave Pigeon a pass because of their political ties.

Flaherty said he has no ties to Pigeon and never received campaign contributions or political help from him. He also said he met Pigeon only once, in 2008, when Pigeon asked Sedita to consider using a New York City media firm to which Pigeon was connected, but Sedita declined.

Finally, the Democratic canvassers used by Flaherty to circulate his nominating petitions also gathered signatures for Assembly candidate Kristy L. Mazurek, of Depew, treasurer for one of Pigeon’s most controversial political campaign committees. But Flaherty said the fact that he and Mazurek paid the same canvassers to pass petitions for them was happenstance, not part of a coordinated effort. Flaherty’s campaign manager, James J. Eagan, pointed out the same people also carried petitions for State Sen. Timothy M. Kennedy, an endorsed Democrat.

Homicides – Critics point to the Buffalo Police Department’s poor record of solving homicides this year – three of 29 through late August. Sacha has harshly criticized investigations by the DA’s Office under Flaherty.

In response, Flaherty said his investigation team typically assists smaller police departments and that Sacha should take up his criticisms with the Buffalo Police Homicide Squad. He also pointed out that his office has earned more homicide convictions this year than either of the past two years.

Pushing back

During the last district attorney candidate debate, Flaherty passed on almost every opportunity to discuss his opponents’ shortcomings. “I wanted to be the adult in the room,” he said.

He and his campaign manager have also emphatically denied involvement with some recent, negative robocalls regarding Flynn.

In an interview, he described Flynn as an ambitious and beholden political player who is either seeking to use the District Attorney’s Office as a steppingstone for higher office, or is prepared to fill the DA’s Office with Democratic patronage jobs. Flaherty said he is committed to doing his job as well and nonpolitically as possible.

“I’m not putting my finger in the air and seeing how the wind blows,” Flaherty said. “I’m not an opportunist.”

Of Sacha, Flaherty’s fiercest critic, Flaherty said, “He lacks the temperament and judgment to be district attorney.”

Flaherty also emphatically denied that Sacha ever called for the prosecution of Pigeon or laid out the laws under which Pigeon should be prosecuted.

“He knows the truth,” Flaherty said.

Positive outlook

Flaherty maintains an optimistic outlook heading to primary day. His race is well funded, although his prospects are hampered by the lack of party leaders’ support. He enjoys the backing of the Civil Service Employees Association, but that’s pretty much it.

He has raised about $400,000 toward the DA’s race, according to campaign manager Eagan. That includes $140,000 in loans, primarily from family members.

A July poll, paid for by his campaign, showed Flaherty with a significant lead over his challengers. His opponents dismissed the poll as an invalid piece of campaign propaganda, but Flaherty said the work done by David Binder Research was publicly released because it’s statistically valid.

He also said that no sitting district attorney has faced a competitive race for the post since 1988. Having limited time to campaign is to his disadvantage, he said, but as someone willing to leave a dying parent to pursue a career in the DA’s Office, he’s all in.

“It’s not a fun life,” he said, “but it’s the most rewarding thing I’ve ever done.”


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