In a locally unprecedented twist Cayuga County District Attorney Jon Budelmann fired back again on Thursday to claims published in the Post Standard, by investigative reporter John O’Brien.
Budelmann claims that personal bias, unsubstantiated claims, unprincipled news reporting, and irresponsible conduct have ‘eroded’ the integrity of his office and the justice system as a whole.
Part of Budelmann’s statement read, “The cowardly accusations and the irresponsible conduct of an unprincipled news reporter have eroded public confidence in the integrity and professionalism of this office and the justice system.”
The allegations surfaced earlier this week in a Post Standard investigative story that a former assistant district attorney claimed that he was wrongfully terminated and that a number of cases were mishandled.
That former assistant district attorney was Jeffrey Domachowski, who was terminated more than four months ago.
Budelmann statement outlines a timeline of events, leading up to Domachowski’s termination:
“In late July 2016 emails surfaced (sent in January from Domachowski’s private email) to defense attorney Simon Moody about their “mutual goal.” In the emails Mr. Domachowski orchestrates what each will say at trial to ensure that defendant would be acquitted. I have already distributed the emails to the press. In August, an informant that Domachowski met with privately (without the police) came forward and stated in a recorded police interview that ADA Domachowski told him to lie under oath at Grand Jury to ensure that the case would be “no billed.” (I have that recorded video)”
His statement continued:
“I have been a prosecutor for nearly 24 years, Mr. Domachowski was one for just 1½ years. However, he was an experienced defense attorney before joining this Office. Mr. Domachowski was terminated in June 2016 due to his own misconduct. (I have his termination letter.) Now he is backpedaling, trying to collect Unemployment benefits, and projecting his own unethical conduct onto me. As District Attorney I cannot prosecute every case, but rather supervise ADA’s who prosecute those cases. I do establish parameters I expect ADA’s to work within, but I allow my Assistant DA’s discretion on how to handle cases assigned to them. They decide whether to bring a case forward and what a just disposition should entail. They are all licensed attorneys and are aware of their own ethical obligations.”
Budelmann also alleges that the author, John O’Brien has a personal bias and interest in this story, which resulted in him questioning why any objective reporter would move on the ‘unsubstantiated claims’ put forward by Domachowski.
On Tuesday, two individuals had their court action delayed after allegations of evidence being withheld surfaced on Monday.
According to the Auburn Citizen, an Auburn man who was scheduled to be sentenced for possessing more than a pound of marijuana made a motion on Tuesday to withdraw his guilty plea. That move came at the prospect of potentially favorable evidence to the defense being withheld from court.
It was clear though that he wasn’t the only one. The same report indicated that defense attorney Rome Canzano asked to have all proceedings delayed until there is more clarity on this subject. For his two clients, it means several more weeks before further court action.
Budelmann did not fight the postponement, according to reports. That said, he told media on Tuesday that he has an ‘open file’ policy. Budelmann says that his office allows anyone to come in and see any material that they have on any particular case, making an exception to confidential informants.
However, an ‘open file policy’ is open to interpretation, according to legal experts. What one person considers an ‘open file’ policy, could be completely different from what another office considers ‘open file’.
Cayuga County District Attorney Jon Budelmann has responded after coming under fire for allegedly withholding evidence. The allegations come from a former assistant district attorney who served under Budelmann until his employment was severed more than four months ago.
According to a report published by the Post Standard more than 14 drug cases in the last eight years involved evidence that was secretly withheld.
That former assistant district attorney was Jeffrey Domachowski, who says that Budelmann ordered him to not turn over relevant evidence in more than a dozen cases.
Domachowski was let go by the office for unethical conduct. In a lengthy written statement Monday afternoon – Budelmann responded to the allegations, arguing that they were ‘baseless’ and inconceivable.
His full-statement can be read below:
It has been reported (principally by John O’Brien of the Post Standard) that I was appointed a Special Prosecutor in the Investigation into the release of sealed information to John O’Brien of the Post Standard. Today, in a voice mail left on my phone, O’Brien explicitly linked the two issues, the Domachowski allegations and the O’Brien Investigation.
For the record, I dispute every one of Domachowski’s baseless allegations. They are untrue. At no time before Mr. Domachowski’s termination, nor in the four and a half months since, have I received any notice that anyone has ever filed any grievance or complaint regarding these matters. As such, Mr. Domachowski’s claim that he was fired in retaliation for his imaginary claims or complaints is simply false. He has however, filed a Notice of Claim seeking to receive a monetary judgment for his bad acts while employed here.
Jeff Domachowski was terminated in June after just 19 months with this Office and the main reason for his termination was his unethical conduct. Domachowski is projecting his own guilty conduct upon this Office. This Office has the support of the Auburn Police Department and the Cayuga County Sheriff’s Department. Domachowski, an eighteen year criminal defense attorney before joining this Office, never stopped being a criminal defense attorney and could not fit into the role of a prosecutor. He is now an island by himself and his fantastical claims have no basis in fact.
As a practical matter, this Office has a long standing open file policy. We reviews all police reports, statements and recordings with defense attorneys well before any required statutory discovery time frame. The fact that a drug dealer is not carrying the drugs they are selling on their person at all times does not mean they are not drug dealers. On December 3, 2015 Mr. Domachowski was advised of People v. Coleman, 4 AD3d 677, 678 (3rd Dept. 2004) in that case the defendant claimed the District Attorney erred in not charging the grand jury as to the agency defense. The Appellate Court found the “defendant’s contention … meritless.”
It is axiomatic that a district attorney is under no obligation to charge a grand jury as to every conceivable defense suggested by the evidence. Rather he or she must charge only those defenses that the evidence will reasonably support. Here, defendant did not testify before the grand jury, and accordingly, there was no evidence before that body indicating that defendant did not stand to profit from the transaction or that he acted merely as an extension of the buyer with no independent desire to promote the transaction. (citations omitted)
On July 28, 2016, the Court brought to our attention that both this former employee Domachowski and the appointed defense attorney Simon Moody were exchanging confidential emails about this case. The emails reveal that Domachowski was collaborating with and actively assisting the defense attorney and revealing confidential information. Tyrone Matthews, a criminal defendant, had sent Judge Leone a letter disclosing the secret emails between the two. They are attached hereto. Both Domachowski and Moody are being investigated for their unethical conduct (disclosing privileged materials). In those emails they orchestrate what each other should say and do. According to Simon Moody, Tyrone Matthews was not the only case where private emails were exchanged between these two. Further, that Moody was not the only defense attorney receiving such private emails from Domachowski.
As for Tyrone Matthews, he is a three time convicted drug dealer [Crim. Sale of a Controlled Substance in the 3rd Degree (11/4/2010 Cayuga Cty. 5 years determinate prison and 3 years PRS), Attempted CSCS 3rd (Chemung Cty. 3/29/1999, 3-6 yrs prison); CSCS 5th (Cayuga Cty. 3/6/1997, 2⅓-7 years) and has three other criminal convictions, two of them drug related]. On July 29, 2016, one day after Judge Leone disclosed the defendant’s letter (containing those secret emails, attached hereto), and the same day his attorney Simon Moody visited him at the jail, Matthews is recorded stating Simon “begged me to plead guilty for twenty minutes,” “he tried so hard,” and “I might have to get rid of him though…cause he about to get investigated too.”
Later, just three weeks before his September 12th trial, Matthews told his girlfriend he was going to plead guilty because none of his friends was “helping him.” He repeatedly sent emails telling people he needed “help with these people,” to “check it out” and checking to see if people were “making inquiries about what he was asking for.” Once he got word that he was “good,” Matthews no longer wanted to plead guilty and went to trial. Interestingly, the informant did not appear at trial. At trial Matthews took the stand and denied being close to the informant. He did admit he delivered the narcotics (twice) and accepted $100 in return (twice). One of the narcotics sales was out on the street in broad daylight, was captured on videotape and you can clearly see an exchange and money in the defendant’s hand.
Another informant came in to the Auburn Police Department and in a recorded interview told the police that Domachowski directed the informant to lie under oath, and testify that he was not searched by the police (when he had already given sworn statements that he had been searched), and to say that the informant had entrapped a person to sell drugs by inflating the price by ten dollars.
The Agency defense is based upon the theory that a particular defendant is not selling drugs, but merely buying them for another and has no personal gain from the transaction. While common sense tells us this is simply not something a person would do, sell narcotics for no reason, it is “ultimately a factual question for a jury to resolve and never arises unless some reasonable view of the evidence supports that the defendant was acting only on behalf of the buyer.” (People v. Herrling, 83 NY2d 780). Evidence that defendant was acting as an intermediary is insufficient to warrant and agency defense charge. (People v. Argibay, 45 NY2d 45). In reality, everyone between the person growing/manufacturing the drugs and the person ingesting them is some type of middle man, getting a piece of the action. No one would expose themselves to possible prison time without some reason, some personal gain, whether in the form of money, sexual relations, room, board, drugs or some other profit.
Under the Public Health Law and Penal Law Article 220 Concentrated Cannabis is defined as a controlled substance. However, it the final analysis it is still cannabis or marihuana. The defendant Kopecki plead guilty and admitted he possessed large amounts of both marihuana and concentrated cannabis. There is no report indicating that the substances recovered during a search of his home, from which he sold drugs, was not concentrated cannabis. And Kopecki bragged to the informant about funding his (Federally forfeited former) coin collection through his drug selling profits.