Civil rights

Judge dismisses $8 million civil rights suit in Troy voter fraud lawsuit

ALBANY — A federal judge on Thursday ordered summary judgment in an $8 million civil rights lawsuit, dismissing the fabricated evidence case filed by the county’s Democratic Election Commissioner against the county’s former special prosecutor. of Rensselaer regarding an investigation into election fraud in 2009.

U.S. District Court Judge Mae A. D’Agostino found no evidence that then-Special Prosecutor Youel C. “Trey” Smith III fabricated evidence in the investigation on Commissioner Edward G. McDonough, who was acquitted of the charges against him.

“While the evidence in the record suggests that Investigator (John) Ogden and others from the New York State Police were not thrilled with the work that Defendant (Smith) was doing, the length of of the investigation and the lack of progress at times, nothing in the record suggests that the defendant fabricated evidence or improperly coerced individuals into perjuring themselves,” D’Agostino said in his ruling.

McDonough’s lawsuit alleged that Smith framed a case using fabricated evidence against him during the investigation into the 2009 Working Families Party mail-in primary ballot fraud by Troy Democratic officials and political operatives. McDonough would be tried twice, with the first trial ending in a mistrial and he being found not guilty at the second trial.

While former City Councilman Michael LoPorto would also stand trial twice with a mistrial and acquittal, five other Democrats would plead guilty to their role in ballot tampering.

“There is no doubt that errors were made and that certain aspects of the underlying investigation were handled in a way that would not be considered typical. Despite the perception of the plaintiff (McDonough) and the actual shortcomings of this investigation, what is missing is any evidence that would allow a reasonable investigator to conclude that the defendant fabricated evidence or coerced witnesses to give false testimony,” D’Agostino wrote.

During an August 5 hearing at the federal courthouse, D’Agostino questioned Thomas J. O’Connor, Smith’s attorney, and Brian Premo, McDonough’s attorney, about the lack of evidence in the affair.

It was D’Agostino’s second time addressing the nearly seven-year-old lawsuit. The judge dismissed the case, which eventually went to the US Supreme Court in 2019, which overturned the original ruling and sent it back to the court of appeals and then to the district court. McDonough’s malicious prosecution allegations have not survived due to the standard that prosecutors cannot be sued for doing their job. The fabricating of evidence allegations was ordered reconsidered.

“The court found there was no evidence that Mr. Smith fabricated evidence,” O’Connor said. “There was no fabricated evidence.

Premo said the decision will be appealed to the Second Circuit of the United States Court of Appeals in New York, the second time the case will go to the appellate level.

“There are credibility issues with every witness. Questions of fact must be considered by a jury,” Premo said.

D’Agostino acknowledged that McDonough “believes he was treated less favorably than others whom he claims to be more clearly culpable in the alleged voter fraud. While this may be true, the decision not to offer the plaintiff a favorable deal or immunity must be put in context: he was and is the Democratic Board of Elections commissioner, responsible for ensuring the integrity of elections in his jurisdiction.”