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Sunday, February 20, 2005


Alberto Gonzales, Bill O'Reilly, Ward Churchill, Gawker, Poynter, Someone Please Help -- Culture Western Pennsylvania Politics

Pittsburgh Mayor Under Federal Probe

The following is a story written on January 10, 2005, by Pittsburgh Post-Gazette staff writer Torsten Ove. http://www.post-gazette.com/pg/05010/439729.stm

Behind a nondescript metal door next to the cafeteria in the federal courthouse, Downtown, the fate of Mayor Tom Murphy will play out in the coming months.

A grand jury has started gathering evidence to determine whether Murphy violated the law when he traded a generous contract with the city firefighters union in return for its endorsement in 2001.

That prosecutors were scrutinizing this deal has long been public knowledge, but the status of the probe and any details remain a secret.

That's always the case with federal investigations, in which prosecutors, agents and grand jurors are under strict rules not to reveal information -- or even acknowledge that an investigation is under way.

Those on the outside, then, are only left to speculate about what might be going on.

To date, this much is known:

On April 12, fire union chief Joseph King issued a letter saying Murphy traded $10 million to $12 million in fire union contract demands, including no-layoff protections, in exchange for the union's votes in the 2001 primary.

After the district attorney and the U.S. attorney promised to investigate, the FBI started interviewing witnesses in May, including King, Murphy and his top aide, Tom Cox.

Then, last month, city Solicitor Jacqueline Morrow delivered documents related to the contract that had been subpoenaed by a grand jury under the direction of First Assistant U.S. Attorney Robert Cessar.

Cessar will likely summarize those records for the grand jury, one of five that hear cases in U.S. District Court, at a future session. Federal grand juries usually meet once a month, and unlike state or county panels convened for a special purpose, they hear all manner of cases for 18 months.

The grand jury has the power to subpoena all records and witnesses, but in this case apparently no one has yet been called to testify.

All of these developments are standard operating procedure for a public corruption probe, former federal prosecutors said.

"The fact that a grand jury subpoena has been issued does not necessarily mean that the prosecutor has determined to seek an indictment," said William Snyder, a former prosecutor in Pittsburgh and Washington, D.C., who recently took a job in academia at Albany Law School.

The grand jury is the usual means of securing documents in cases, especially sensitive ones. While federal agencies such as the FBI or IRS can issue "administrative" subpoenas or summons in drug or gun investigations, corruption probes require a grand jury subpoena.

The fact that Murphy has hired a lawyer, Robert Del Greco Jr., does not mean he's going to be charged. It's normal practice for everyone involved in grand jury proceedings to hire lawyers, who aren't allowed in the grand jury room but can advise their clients outside.

"He would be foolish not to hire an attorney, given just the information I've read in the paper," said attorney William Conley, a former federal prosecutor in Pittsburgh.

Del Greco won't comment on the case, nor will King or his lawyer, Patrick Nightingale.

The nuts and bolts of grand jury proceedings are second nature to prosecutors and defense attorneys, but what intrigues some in the Murphy case is the nature of a potential charge.

Cessar, who is not allowed to comment, is presumably interested in whether the fire contract deal violated the federal Hobbs Act, which prohibits public officials from using their official power to obtain property or services.

The law was used to convict former state Rep. Frank Gigliotti and former Allegheny County Common Pleas Judge Joseph Jaffe, among others.

But several ex-prosecutors said they don't see how the Hobbs Act would apply to such political "horse-trading" as the deal King says he cut with Murphy. Doesn't this kind of thing happen all the time in politics?

"Based on what I've read, it's not a crime," said attorney Tom Farrell, the prosecutor who put Gigliotti in prison and now represents a witness in the Murphy investigation (he won't say who).

"I've never seen a Hobbs Act violation that didn't involve an exchange of money," he said. "When does the political horse-trading cross the line into corruption?"

The FBI has asked questions about money changing hands, but there is no indication that such an exchange took place.

Several ex-prosecutors said the Justice Department, which has to sign off on investigations of elected officials, would never take a chance on indicting a big-city mayor based merely on the allegations raised publicly so far.

For an indictment, there likely would have to be more -- either secret payments or services of some type or perhaps an attempt at obstruction.

One former prosecutor said the U.S. attorney's office is often in an untenable position in these kinds of cases, because prosecutors are obligated to investigate a complaint in the public interest but don't want to ruin someone's reputation with the "onus of investigation."

That's one of the main reasons why grand jury proceedings are secret in the first place.

"The secrecy requirement protects an innocent person who has been investigated and cleared by the grand jury," says the "Benchbook for U.S. District Court Judges," a guide published by the Federal Judicial Center. "In the eyes of some, investigation alone suggests guilt. Thus, a great injury can be done to the good name and standing of anyone, even though they are not indicted, if it becomes known that there was an investigation about them."

Although federal grand juries in routine cases will sometimes take their lead from the prosecutor and "rubber stamp" an indictment, ex-prosecutors say that doesn't happen in more sensitive investigations like this one. Grand juries are often independent-minded and will decline to indict if they feel there's no case.

Former prosecutors also reject another common contention, often raised in probes of elected officials, that such investigations are motivated by local or national politics.

Murphy is a Democrat, after all, while Cessar and his boss, U.S. Attorney Mary Beth Buchanan, are staunch Republicans obviously working for a Republican administration.

But ex-prosecutors said that fact would have no bearing on the investigation. For one thing, the lead agency is the FBI, which rotates its agents around the country so they have no personal ties to a case. The lead agent in the Murphy case, for example, is from Newark, N.J.

And Farrell, a diehard Democrat, pointed out that his most well-known case was the prosecution of Gigliotti -- another diehard Democrat.

"In my experience," he said, "politics don't play a role in federal investigations."

County Sheriff Under Federal Probe

This next story was written on January 27, 2005, by Pittsburgh Tribune-Review staff writer Chris Osher. http://www.pittsburghlive.com/x/tribune-review/trib/pittsburgh/s_297355.html

At least six high-ranking employees and a former captain in Allegheny County Sheriff Pete DeFazio's office testified Wednesday before a federal grand jury that has subpoenaed DeFazio's campaign records. Most of the witnesses appeared before the grand jury for about an hour. All declined to comment as they left the federal courthouse yesterday.

One witness cooperating with the investigation has said the FBI is investigating how Chief Deputy Dennis Skosnik collected money from the sheriff's command staff -- about 12 people in all -- as Christmas gifts to the sheriff in 2003 and 2004. Two people familiar with the probe have said the FBI wants the sheriff's command staff to detail the Christmas presents.

Cmdr. Carmen DeLuca, Lt. Thomas Carter, Capt. Joseph Rizzo and Capt. Frank Schiralli appeared before the grand jury yesterday. "They have done nothing wrong," said attorney Robert Leight, a former FBI agent and former assistant U.S. attorney who is representing all four men. "They are merely fact witnesses."

Capt. Donna Best also appeared before the grand jury with her lawyer, Tom Ceraso.

Former Capt. John Tozzi, who retired in June 2004, also appeared. His lawyer, Robert G. Del Greco Jr., said his client is a witness and isn't a subject or target of the federal investigation.

DeFazio's executive assistant, William Mullen Jr., said yesterday that he has complied with a grand-jury subpoena by delivering nearly 17,000 pages of documents Tuesday to the U.S. Attorney's Office. Most of the documents are campaign records, including canceled checks and expenditures.

Mullen, who came to the courthouse yesterday with his lawyer, Charles Porter, said he appeared briefly before the grand jury to verify that he is the keeper of the documents and had compiled them.

"Those records are accurate to a fault," Mullen said.

"There are probably 30 binders worth of canceled checks," he said. "It's probably two and a half feet high."

Mullen said he also has provided a list of 297 special deputies -- an honorary position bestowed by the sheriff's office -- as well as backup documentation of their appointments. The position of special deputy comes with a special badge but confers no law-enforcement powers.

Mullen also has provided a roster of reserve deputies -- a volunteer position used primarily to provide security during parades, funerals and other functions.

"I'm sure there will be questions and additional documents will have to be provided," Mullen said.

The use of the badges raised concerns in 2003 when eyewitnesses said entrepreneur Timothy Heffner of Pine, whose home was raided last year by the Internal Revenue Service, twice tried to make arrests by displaying a badge. The sheriff's office also gave an honorary badge to Christopher Fekos, a Dormont businessman who has been named in court documents as a suspect in the theft of $1.8 million from Citizens Bank.

Employees of DeFazio's office began receiving subpoenas this month either to provide documents or appear to testify. Mullen said it wouldn't be appropriate for him to comment on whether other employees in the sheriff's office had received subpoenas for additional records.

DeFazio, one of the county's top Democrats, was first elected sheriff in 1997 and re-elected in 2001. He is running this year for a third four-year term. As sheriff, DeFazio wields considerable political clout. He succeeded last year in efforts to keep the sheriff's office an elected post rather than an appointed one under a proposed reduction of county row offices.

The sheriff's office has a $10 million annual budget and more than 200 employees. Sheriff's deputies provide county courthouse security, transport prisoners and serve legal papers.

DeFazio's personal lawyer, Anthony Mariani, has said federal law-enforcement officers have told the sheriff he is not the subject of the investigation. Mariani has said DeFazio will cooperate with the investigation and will help in any way possible.

"The sheriff continues to fully cooperate and would expect everyone involved to do the same," Mariani said yesterday.

DeFazio and Skosnik have declined to comment on advice of their lawyers. They were unavailable yesterday.

First Assistant U.S. Attorney Robert Cessar, who is coordinating the probe, declined to comment.

Allegheny County Coroner Under Criminal Probe -- Hobbs Act

This story appeared in the February 15, 2005, edition of the Pittsburgh Post-Gazette. It was written by Jonathan D. Silver. http://postgazette.com/pg/05046/457665.stm

A clinical, three-page treatise on positional asphyxiation written by Dr. Cyril H. Wecht is the driving force behind the criminal investigation of Allegheny County's coroner.

The problem, according to District Attorney Stephen A. Zappala Jr., is that Wecht and the coroner are one and the same.

Zappala contends that Wecht may have violated state and federal ethics laws by using his public office for private gain. Specifically, Wecht recommended homicide charges in the death of an Altoona man who died from positional asphyxiation during a fight with Mount Oliver police in 2002, and then earned $5,000 as a private consultant to write the report for a federal lawsuit by the man's family.

Wecht said yesterday he conferred with his personal attorney, the coroner's solicitor and other lawyers he knows, and he still could not find anyone to tell him he broke the law.

"I can only tell you that nobody can come up with any logical explanation or rationale for that assertion," Wecht said. "Forget whether they think it is likely to be meritorious, nobody that I've spoken to can understand what the reasoning is."

In March 2003, the family of 43-year-old Charles Dixon filed a federal wrongful death lawsuit against Mount Oliver police. That July, after reviewing testimony at an open inquest and a recommendation by hearing examiner William Manifesto, Wecht recommended that Zappala pursue criminal charges in the case, though he did not identify a culprit.

About two months after that, Wecht was asked by the law firm Lewis, Lewis & Reilly to write a report about positional asphyxiation, which the coroner's office ruled as the cause of Dixon's death. That condition can happen when pressure is applied to the back of someone in a prone position.

In the report, dated Oct. 2, 2003, Wecht wrote a seven-point memo to attorney Frank E. Reilly based on his review of "the death certificate, autopsy protocol, microscopic autopsy tissue slides, various investigative reports and documents, and the 'Findings and Opinion of the Coroner's Office' regarding the death of Charles Dixon Sr."

Over the three pages, Wecht laid out in dry, scientific detail the cause of Dixon's death and then concluded that "information about the dangers of positional asphyxiation has been widely disseminated to law enforcement agencies" throughout the country.

The lawsuit was settled for $850,000.

Wecht said once the coroner's office issues its findings in a particular case, that has "terminated our office's involvement in the case."

Wecht estimates he has been asked to serve as a private consultant on an average of two cases per year handled by his office for the 23 years he has been coroner, including the period from 1966 to 1980.

"They've come to me for my opinions and I've rendered them," Wecht said. "In all of these cases, I've submitted a written report which goes to opposing counsel.

"I'm there as a private pathologist, not as the coroner," Wecht continued. "I've done nothing different, and there's nothing new or different in this case."

In fact, there is a difference. The Dixon case might be the only one in which Wecht has served as an expert after an open inquest was conducted to determine the cause and manner of death and whether someone was criminally liable.

Wecht did serve as an expert witness on a lawsuit brought by the family of motorist Jonny Gammage, who died of positional asphyxia during a confrontation with police after a traffic stop in Overbrook, but Wecht was not the coroner when the incident happened in 1995.

Wecht said for the past two to three years, he has charged a standard $5,000 fee for consulting on cases, whether "malpractice or murder."

"That's a standard rate for a guy of his national prominence. That's clearly reasonable," said attorney J. Kerrington Lewis, one of the attorneys who represented the Dixon family. In addition to probing Wecht's activities in the Dixon case, Zappala said Assistant District Attorney Lawrence Claus, who is in charge of the investigation, had requested copies of Wecht's ethics filings.

Under the county's Ethics Act, adopted in 2001, row officers and others are required to submit annual statements of financial interest that document gifts, corporate interests, owned properties and the names of immediate family members and whether they belong to county boards or directorships, among other things. Wecht did not file any statements for 2002 or 2003.

"I have received no gifts from anybody. I don't have a political fund. I own one home and none of my children or in-laws or family work for the county," Wecht said last week. He would not directly address why he had not filed statements with the county.

Both Zappala and Claus were out of town.

Manager in City Controller Office Sentence -- Sold Cocaine from his desk.

This story appeared in the Pittsburgh Tribune-Review on December 11, 2003. It was written by Tribune staff writer Glen May. http://www.pittsburghlive.com/x/tribune-review/news/s_169433.html

Gilbert Martinez, a former manager in the city controller's office, pleaded guilty Wednesday to numerous charges he sold cocaine from his office at the City-County Building during 2001 and then fled to avoid a trial.
The 30 counts combined merit a prison term of 100 years, although Allegheny County Common Pleas Judge Donna Jo McDaniel could order some sentences to run concurrently, sharply reducing Martinez' term. He is scheduled to be sentenced Feb. 10.

Martinez, who oversaw purchasing and contracts in Controller Tom Flaherty's office, vowed after his June 24 arrest that he had insider information that would "blow the top off Pittsburgh."

Martinez had no tales to tell. "That was just something he said," his lawyer, Patrick J. Thomassey, said yesterday.

Flaherty had little to say last night.

"I don't have any comment. That's between he and his lawyer," Flaherty said.

Martinez, 60, who remains in the Allegheny County jail pending sentencing, made no comment. Thomassey said his client had little choice but to plead guilty given the evidence.

That evidence, Assistant District Attorney Steven Stadtmiller said, included a videotape filmed in the City-County Building lobby of Martinez selling 27 grams of cocaine to a police informant for $1,350.

Undercover officers and the informant bought cocaine from Martinez six times, Stadtmiller said, with a second transaction recorded on audiotape. The sales ranged from 4 to 27 grams, Stadtmiller said.

Martinez, of Brookline, pleaded guilty yesterday to six charges each of drug delivery, drug possession and possession with intent to deliver. He also pleaded guilty to six counts of flight to avoid prosecution and six of missing a court appearance.

Prosecutors said yesterday that Martinez tried to find a way to flee to Cuba or to Mexico after he skipped a Jan. 6 hearing on his drug charges. Martinez was arrested June 24 at a hotel in Meadville, Crawford County.

Allegheny County Sheriff's Sgt. Jack Kearney, who headed the manhunt, said after yesterday's hearing that Martinez tried to use his dead father's biographical information to get a bogus Social Security card, and that he also tried to get a phony passport.

Martinez contacted Cuban diplomats in Washington, D.C., to try to arrange flight there, Kearney said, and also considered opening a business in Mexico in the lobster industry.

But Thomassey said stories about Martinez's planned escape were exaggerated.

"I think if he was going to go to Mexico, I don't know why he was in Meadville (Crawford County) for four months," Thomassey said.

According to prosecutors, Martinez faces a mandatory minimum sentence of 26 years for the drug charges alone and up to seven years on each of the 12 charges stemming from his being a fugitive.

But Thomassey said Martinez should face only three-year mandatory terms on each drug sale.

Thomassey said he hopes Martinez is not given harsher treatment because of where the drug transactions took place.

"It just happened to be where the transactions occurred," Thomassey said, adding Martinez has no prior criminal record.

Thomassey said no decision has been made about the fate of Martinez's $1,885-a-month city pension, which continued to be deposited in Martinez's bank account while he was on the run.

Craig Frischman, the lawyer for Pittsburgh's municipal employees pension fund, said there are several factors that could determine whether Martinez's conviction will result in the loss of his pension. But Frischman said he first needs to review the law and the details of the charges against Martinez.

Allegheny County Jail Guards -- Sex With Prisoners

This story appeared in the February 18, 2005, Pittsburgh Tribune-Review. The story was written by Tribune staf writer Dave Conti. http://www.pittsburghlive.com/x/tribune-review/pittsburgh/s_305041.html

An Allegheny County jury on Thursday acquitted an out-of-work guard in the first case from the county jail's sex-for-favors scandal to reach trial.
Donald Stupka, 46, was cleared of a charge of institutional sexual assault by a jury of eight women and four men after two hours of deliberations.

"It's clear the jury didn't believe her story," defense attorney Michael Foglia said of the testimony of Stupka's accuser. "It's the right verdict."

Stupka declined to comment as he left court with several friends and relatives, all of whom broke down in tears when he was acquitted.

Mike Manko, spokesman for the district attorney's office, also declined to comment because more cases are awaiting trial.

Stupka is one of 13 male guards and one female guard arrested last year following a grand jury investigation into sex and drugs in the Uptown lockup. Three male guards have already pleaded guilty to institutional sexual assault charges.

Stupka's accuser testified that the guard began giving her cigarettes in 1999, and that one night that year, she performed a sexual act on him in her cell. Assistant District Attorney Randy Ricciuti did not present any physical evidence to the jury.

Stupka denied the allegations and testified he had never seen the woman until a preliminary hearing following his arrest.

"She was an admitted drug user and abuser," Foglia said.

The woman also has accused two other guards who are awaiting trial. The Pittsburgh Tribune-Review does not identify those who say they have been sexually assaulted.

Stupka was placed on "inactive" status at the jail following his arrest last February and has not been collecting pay or benefits, according to the county controller's office.

Jail Warden Ramon Rustin was out of town yesterday and could not be reached for comment.

West Homestead Police Chief Arrested

This story appeared in the February 19, 2005, Pittsburgh Post-Gazette. It was written by Post-Gazette staff writer Torsten Ove. http://pittsburghlive.com/x/tribune-review/trib/pittsburgh/s_304559.html

The FBI and U.S. postal inspectors have arrested former West Homestead Police Chief David Ausburn. His detention hearing in U.S. District Court will be tomorrow.

The criminal complaint against him remains sealed, but agents took him before U.S. Magistrate Judge Lisa Pupo Lenihan yesterday for an initial appearance hearing, at which a defendant typically is notified of the charges against him and has a lawyer appointed to represent him.

Ausburn will appear again before Lenihan at 2 p.m. tomorrow, when the case likely will be unsealed and the judge will decide if he should be released on bond, or detained as a danger to the community or a risk to flee.

No one has revealed the exact nature of the charges, but U.S. Postal Inspector Tom Clinton and FBI agent Denise Valentine, veteran child sex-crimes agents with the Crimes Against Children Task Force, investigated the case. The federal, state and local unit handles investigations of child pornography, child exploitation and Internet coercion throughout Western Pennsylvania.

The U.S. attorney's office won't comment on the case, and yesterday neither would Ausburn's lawyer, James Ecker.

"I really can't talk about it, much as I'd like to," Ecker said.

Ausburn, 35, was supposed to make his first appearance in court on Feb. 7, but checked himself into a psychiatric hospital instead.

Mayor John Dindak said he talked to Ausburn last week, although he didn't ask him for any details of the investigation.

"He sounded depressed on the phone," said the mayor. "He said, 'I won't be seeing you guys for a while.' "

Ausburn called Dindak on Feb. 4 and said federal agents had a warrant to search his office. The agents spent eight hours at the police station and confiscated the chief's car and laptop computer.

Agents are required to leave a copy of the warrant at the scene of a search, along with an inventory of any items seized. But Dindak said he hadn't seen the paperwork and the chief may have it.

Borough council accepted Ausburn's resignation at its Feb. 7 meeting. A search for a replacement is under way.

Rankin Police Chief Gets Jail Term

This story was written by Pittsburgh Post-Gazette staff writer Torsten Ove and appeared in the January 27, 2005 edition of the newspaper. http://www.post-gazette.com/pg/05027/448613.stm

A federal judge yesterday sentenced former Rankin Police Chief Darryl Briston to three years and a month in prison for the theft of $5,855 seized from a borough resident during an arrest of a drug suspect in 2002.

Briston had asked Senior U.S. District Judge Alan Bloch not to send him to jail, saying he was concerned about his wife and two children.

Instead, he got the maximum under sentencing guidelines that are no longer mandatory because of a recent Supreme Court decision.

"We're going downstairs to appeal right now," Briston said as he left court. "This is wrong, man."

Bloch said he didn't have to follow the guidelines but indicated he would anyway, as First Assistant U.S. Attorney Robert Cessar had requested.

In arguing for leniency, Briston's lawyer, Caroline Roberto, suggested that sending him to prison would have a greater impact on the ex-chief than other defendants. A jail term for Briston would mean additional punishment for a man whose conviction already means he can never again be a police officer, she said.

Roberto presented several character witnesses on Briston's behalf, including Allegheny County police detectives Robert Young and Donald Strittmatter.

"In all the years that I've worked with Darryl, I've always thought he was an honest, trustworthy police officer," said Young.

Roberto also presented a former Allegheny County Jail inmate who said he'd heard other inmates say they would kill Briston if he ended up there.

Briston, 41, of Penn Hills, was found guilty at trial last year on all counts related to the theft of $5,855 seized by Rankin police during the arrest of a federal drug suspect April 15, 2002.

The jury convicted him of deprivation of civil rights under color of law, theft from an organization receiving federal funds and two counts of obstruction of justice.

Prosecutors said the former chief stole the money from Tamera Brice after Rankin police took it from her safe after the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives arrested her boyfriend, Richard Powell, on gun and drug charges.

Powell went to federal prison. But Brice was never charged with any crimes, although she did admit that some of the money had come from Powell.

In addition to the theft counts, prosecutors said he falsified receipts to make it look like most of the money had been spent fixing Brice's Chevrolet Blazer after a tour bus smashed into it in July 2003.

Omar R. Deer, owner of the Allmor Corp. auto body shop where the work was done, said the repairs cost $1,910, not the $5,787 Briston had claimed.

Cessar said Briston also gave the forged documents to the grand jury and directed two Rankin officers to place false evidence in the department's evidence locker. Those actions were the basis for the obstruction charges.

In addition to the prison term, Bloch ordered Briston to pay an outstanding balance of $4,255 to Brice as restitution.

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