Bower Decision on 3rd Referral Mimics Heneks' Non-Investigation, Part II

Posted: Friday, August 31, 2018 by Pezzonovante in Labels: , , , ,
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On Wednesday, August 31, 2016, two years ago today, in a meeting which lasted less than 10 minutes, the writer of this blog and the editor of Not Enough Said (NES) were informed by Fayette County District Attorney Richard E. Bower that he would not investigate/prosecute the 3rd Referral of Fayette County Election Board, the Michael Cavanagh allegations of election fraud against state Rep. Timothy S. Mahoney (D-51) -- which were referred to the Fayette County Office of District Attorney on May 24, 2012, by a unanimous vote of the Fayette County Election Board (Ambrosini, Zapotosky, and Zimmerlink), and which the Pennsylvania Election Code mandates be investigated.



See 25 P.S. § 2642(i):  The county boards of elections, within their respective counties, shall exercise, in the manner provided by this act, all powers granted to them by this act, and shall perform all the duties imposed upon them by this act, which shall include the following:
(i) To investigate election frauds, irregularities and violations of this act, and to report all suspicious circumstances to the district attorney. [Emphasis added.]


In the article, “The Heneks-Mahoney Grand Jury Connection,” this space covered the mandatory requirement to investigate thusly:


Because the Fayette County Election Board did not exercise its power and perform its imposed duty to investigate (but instead referred the matter to DA Heneks [now DA Bower]), the law, through the requirement to investigate, takes the 3rd Referral out of the realm of "possible exploration" and firmly places it into the realm of mandatory investigation.  The district attorney's prosecutorial discretion does not supersede the law to which it is subject, and grand jury secrecy laws do not exist so that district attorneys can shield themselves from public scrutiny, lest the citizenry find out that the requirement of mandatory investigation has been turned into non-investigation.

On June 15, 2016, two submissions (which overlap and are extensions of the allegations contained in the 3rd Referral) were filed with District Attorney Richard E. Bower’s office by this writer and by the editor of NES.


This writer’s submission summed up evidence of alleged election fraud and perjury against State Rep. Timothy S. Mahoney (D-51) and requested Fayette County District Attorney Richard E. Bower to investigate and to return an indictment against Mahoney by August 10, 2016.   

The June 15 submissions were follow-ups to the request by made by District Attorney Bower in a brief January 11, 2016, meeting between Bower, this writer, and the editor of NES.  Following the abrupt meeting, DA Bower requested us to provide submissions within a week.  Subsequently, the NES editor had a serious health issue and was hospitalized.  While the hospital stay was brief, the recovery took time.  Wanting to furnish the district attorney with comprehensive documentation, and wanting to file at the same time, the submissions were filed on June 15, 2016.  (District Attorney Bower had related in the January 11 meeting that, given his duties, it would take him one month to review the case.)  Therefore, a June 15 filing date provided the district attorney ample time not only for review but also for indictment.


When we met with District Attorney Bower on July 18, 2016, having fully expected him to have reviewed the materials (including full documentation of the allegations), to have investigated the complaint, and to have determined how he intended to move forward, we were dismayed to learn from him that he had not even begun to investigate the submissions (complaints).


What was his excuse?


In a cover letter to the submissions, we had asked for District Attorney Bower to retrieve his own official court transcript of the court proceeding (1839 of 2011 G.D. – the Mahoney Referendum Petition hearing) in which we allege perjury.  On July 18, DA Bower informed us that he did not retrieve the official court transcript.  His reason was that he would have had to pay the cost of the court transcript out of his budget, and he was not going to do so!


This excuse does not hold water.  If the district attorney’s budget does not include funding for investigation of crimes which state law mandates investigation, why do we have budgets for district attorneys?  DA Bower had more than one month to investigate the matter between the June 15 submissions and our July 18 meeting, but he failed to do so.  DA Bower could have had county detectives investigate all the evidence except the court transcript, but he did not do so.  DA Bower, in the interim between June 15 and July 18, could have contacted us and informed us of his decision not to retrieve the transcript (and asked to use our official copy with the promise to return it), but he failed to do so.  District Attorney Richard E. Bower allowed more than one month to pass by with absolutely no investigation by his office on a case that state law mandates be investigated and with a general statute of limitation he knew to be August 10, 2016, but which we later came to learn was August 9, 2016.  This from a district attorney who, when he was a candidate, said the following:  “We need timely prosecution, we need timely decision-making.  I see very serious flaws in that office.”   

By the way, upon conviction, state law provides for fees and costs of prosecution to be recovered from a defendant.  So, the district attorney’s office would, upon conviction, recoup the cost of the court transcript.


Notwithstanding the above, on July 18 (more than a month after the June 15 submissions upon which he failed to act in the interim) DA Bower proffered “the lateness” of the submissions as a reason why he could not promise that he’d be able do anything by August 9, 2016, the day the general statute of limitations were set to expire.  On July 18, he even asked whether we expected him, given his schedule, to bring an indictment in three weeks time.  The NES editor replied in the affirmative.


On August 9, 2016, five years to the day of the filing of State Rep. Timothy S. Mahoney’s (D-51) fatally defective referendum petitions and altered and falsely sworn affidavits or circulator, and the last day of the general statute of limitation on the perjury allegation regarding the circulator affidavits, we met with DA Bower, again.  In that meeting, DA Richard Bower connected the relationship between State Rep. Timothy S. Mahoney and former Fayette County District Attorney Jack R. Heneks, Jr., to the non-investigation of the 3rd Referral of the Fayette County Election Board.  What a stunning admission from the district attorney whose campaign slogan as a candidate was “Want Tough,” who vowed to clean up the Office of Fayette County District Attorney, and who, during the campaign, criticized ex-DA Jack R. Heneks, Jr., thusly:  “There are cases that are being dismissed due to the failure of the district attorney not prosecuting within the required time limits.  Those cases are thrown out.”  DA Bower admitted the 3rd Referral which state law mandates be investigated was not investigated by his predecessor, former Fayette County District Attorney Jack R. Heneks, Jr.  

Then, DA Bower averred that he gave “this” to an unnamed detective.  However, between August 9 and our final meeting with DA Bower on Wednesday, August 31, 2016, we complainants were never contacted by any unnamed “detective” who supposedly “investigated” “this,” nor did DA Bower ever mention the “detective” or the “detective’s” supposed “findings” on August 31. 
  
On August 31, 2016, DA Bower never provided his determination on the evidence and particulars of the case and whether he found perjury and election fraud.  In fact, in all our meetings subsequent to our January 11, 2016, meeting, DA Bower never allowed for a discussion of the particulars of the case and never delved into the evidence of the case with us.  Instead, the meetings were marked by him abrasively cutting off any discussion by calling it debate (i.e., “I’m not going to debate this with you!” was his constant refrain).


We have only DA Bower’s word that he retrieved a copy of the court transcript (i.e., we never saw his copy; he never reviewed the testimony with us; and he never relayed whether he came to a determination of perjury given the evidence).


We have only DA Bower’s word that he gave “this” to a “detective” (i.e., we never met with the unnamed “detective” nor learned of any supposed “findings").


We have only DA Bower’s word that he “would call” Lawrence Cherba, Executive Deputy Attorney General Criminal Law Division PA Office of Attorney General, to find out about a supposed second review of the case.


We have only DA Bower’s word that he called AG Agent Gary Talent and was told by Talent that the AG’s Office investigated “this” and “found nothing.”


Bower’s final decision on the 3rd Referral and our submissions was that he was not going to “second-guess” an agency (i.e., really a solitary agent who is not a trained attorney and has no authority to make prosecutorial decisions for the Pennsylvania Office of Attorney General) that had “found nothing.”

Not going to second-guess an agency that had “found nothing”?  How could an agency (i.e., really just a single agent with no prosecutorial authority) say it “found nothing” in the face of prima facie (on the face thereof) evidence of perjury fitting the textbook definition of perjury?


What an absolute lie from AG/WRO Agent Gary Talent who, at the behest of his superiors in the disgraced and discredited AG Kathleen Kane administration (in an act which can most aptly be described as official oppression -- 18 Pa.C.S.A. § 5301(2) -- and intimidation), crossed state lines in a marked Pennsylvania State Police cruiser (accompanied by a uniformed Pennsylvania State Police officer) and hand-delivered a letter -- with no force of law (outside his jurisdiction and without the presence of West Virginia authorities) – to the NES editor in Morgantown, West Virginia, asking her to cease and desist from her intermittent calls (once every 5 or 6 weeks) to the PA Office of Attorney General seeking the status of its "second review” of a case -- in which it supposedly "lost" the information packet in the first contact (under then-AG Linda Kelly), averred to have "confirmed through multiple sources" that Heneks was "addressing our concerns" in the second contact/"first review," and now was completely ignoring in its supposed "second review." 

The Cherba Letter, on official Office of Pennsylvania Attorney General (i.e., then-AG Kathleen G. Kane) letterhead, promised a written response which never came.


Contra Agent Talent, and contra DA Bower [whose decision not to investigate/prosecute the mandatory-to-investigate 3rd Referral mimics the admitted (by Bower) non-investigation of the 3rd Referral by his predecessor, ex-DA Jack R. Heneks, Jr.], there exists ironclad, incontrovertible, irrefutable evidence of election fraud and perjury, including prima facie (on the face thereof) evidence of perjury.

There is absolutely no evidence whatsoever that any serious investigation took place -- by ex-DA Heneks, by the Pennsylvania Office of Attorney General, or by DA Bower.


“This is over!” intoned Fayette County District Attorney Richard E. Bower, as he drummed this writer and the NES editor out of his office on August 31, 2016.


Indeed, the meeting with DA Bower was over.


However, DA Bower is sadly mistaken if he believes the book is closed on the case, for the case is not over.
See also:

 Bower Decision on 3rd Referral Mimics Heneks' Non-Investigation

 Update (08-31-2018):  Rich Bower is no longer listed as a sponsor of "The Democratic Radio Hour" heard Fridays at 3:15 p.m. on WMBS 590AM.

 No Bower Sponsor



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