Fayette Searchlight

Yesterday, 08/27/2018, via telephone, this space received confirmation from Fayette County Election Bureau Director Larry Blosser that the original documents in the August 9, 2011, submission of fatally-flawed referendum petitions and altered, falsely sworn, and perjured affidavits of circulator filed by then-State Rep. Timothy S. Mahoney have been destroyed by the Fayette County Election Bureau.

Blosser said the destruction was related to the election bureau's five-year retention policy and received assent from the Fayette County Office of District Attorney.

Blosser also said the original documents related to alleged voter fraud/election fraud in two other referrals made to then-Fayette County District Attorney Jack R. Heneks, Jr. by the Fayette County Election Board on May 24, 2012, also have been destroyed.

There is no problem with records destruction of original documents pertaining to the David E. Butler allegations which led to presentments against three Bullskin Township supervisors.  The supervisors went through ARD, paid fines, performed community service, and had their records expunged.  The cases there are closed. 

The destruction of the original records pertaining to the Mahoney allegations against Uniontown businessman Michael J. Cavanagh may seem to be in order, for time limitations pertaining to the allegations have lapsed.  Yet, due to the sealed Fifth Presentment from Fayette County Grand Jury No. 2, the unanswered question as to who is the subject of that presentment, and whether Fayette County Grand Jury No. 2 Presiding Judge Steve P. Leskinen's order to seal the Fifth Presentment will be lifted after more than 44 months, the original documents regarding the Mahoney allegations against Cavanagh likely should have been retained.

Blosser was confronted with the facts as to why the original documents regarding the Mahoney submission should not have been destroyed.  They should not have been destroyed because the matter was referred to then-DA Heneks for a determination (Third Referral), because the matter was included in his Application for the empanelment of a grand jury, because there exists a sealed Fifth Presentment (Page 7 of the next hyperlink) from the grand jury which has never been unsealed, because the grand jury docket remains active (not closed), and because, due to an extension on the time limitation which applies, Mahoney is yet subject to investigation and prosecution.

Current District Attorney Richard E. Bower was made aware of this extension of the time limitation in a submission letter detailing the allegations against Mahoney dated 06/15/2016.  Approached with prima facie evidence of election law violations where an indictment could have issued within a matter of days to stop the time limitations from running, Bower, for weeks, shirked his duty to perform the mandatory investigation in the case and knowingly permitted the general statute of limitations regarding the allegations on perjury against Mahoney to expire (August 9, 2016; August 22, 2016). 

Subsequently, in 2016, following his failure to perform his mandatory, statutory duty to investigate the allegations against Mahoney under 25 P.S. § 2642(i), Bower made a contribution to then-State Rep. Timothy S. Mahoney's campaign committee -- The Friends of Tim Mahoney (see the top of Page 4 in the link to the report).  Bower also became a listed co-sponsor of "The Democratic Radio Hour" heard Fridays on WMBS 590AM and funded, in part, by The Committee to Re-Elect Tim Mahoney (see bottom of Page 11 here).

While Fayette County District Attorney Richard E. Bower should have been investigating and prosecuting the case against Mahoney (or, more appropriately, recusing himself and referring the matter to the Pennsylvania Office of Attorney General because his campaign manager Lance Winterhalter's Office of Prothonotary notarized 48 of 50 of Mahoney's altered, falsely sworn, and perjured affidavits of circulator outside the presence of the already-filed referendum petitions to which the affidavits are meant to attest), instead, after allowing the general (i.e., not the extended) statutes of limitations to expire, Bower contributed to Mahoney's election in 2016 and, in part, as a co-sponsor, currently funds the radio program stumping for Mahoney's re-election in 2018.

[Now we learn that DA Bower's office had a hand -- in the face of his personal knowledge of the extended statute of limitations which applies to Mahoney -- in assenting to the Fayette County Election Bureau destruction of the original documents filed by Mahoney on August 9, 2011.]  RETRACTED SEE UPDATE/RETRACTION

Yesterday, a Right-to-Know Law request was filed with Fayette County Open Records Officer Amy Revak and with Fayette County Election Bureau Director Larry Blosser seeking communications between the election bureau and the district attorney's office regarding the destruction of the original documents in the Mahoney submission.

UPDATE/RETRACTION:

Fayette Searchlight issues a retraction for this part of the story above:  

"Now we learn that DA Bower's office had a hand -- in the face of his personal knowledge of the extended statute of limitations which applies to Mahoney -- in assenting to the Fayette County Election Bureau destruction of the original documents filed by Mahoney on August 9, 2011."  

This section of the article was based on incomplete knowledge.  The article section was written with the thought the original materials in matters referred to former District Attorney Jack R. Heneks, Jr. and included in his Application for the empanelment of a grand jury would be kept for at least as long as the general statute of limitations -- i.e., a five-year time period from August 9, 2011.  This would have placed the destruction squarely within the administration of current Fayette County DA Richard E. Bower.  Instead, according to an answer to a Right-To-Know law request, the Fayette County Office of District Attorney never provided direction to the Fayette County Election Bureau to preserve documents beyond their scheduled two-year destruction schedule.  Thus, according to Cheryl Karol at the FCEB, the Tim Mahoney and Michael Cavanagh papers and petitions were destroyed at the two-year interval.  Even hypothetically going off the May 24, 2012 election board meeting date (to be conservative), the documents would have been destroyed by May 24, 2014 -- squarely within the DA Heneks administration. 

Today, September 12, 2016, marks the 21-month anniversary of the sealing of the 5th Presentment of Fayette County Grand Jury No. 2. -- an Order issued by Presiding Judge Steve P. Leskinen on December 12, 2014.

To view the docket sheet entry of the Order Presenting SEALED Grand Jury Fifth Presentment, see the top of Page 7 of 8 of the Fayette County Grand Jury No. 2 Docket Sheet.

For approximately thirteen months of the former administration of then-District Attorney Jack R. Heneks, Jr., and now for more than eight months of the current administration of Fayette County District Attorney Richard E. Bower, the 5th Presentment of Fayette County Grand Jury No. 2 has remained sealed.

In a previous post in this space we pondered the possible reasons for the dormancy of the 5th Presentment.

Other presentments from Fayette County Grand Jury No. 2 have been prosecuted and penalties have been meted out.  Juxtaposing the prosecutions of other presentments and the 21-month sealing of the 5th Presentment raises serious questions.  While a previous post in this space covered some of those questions, it bears reiteration that the most serious question is the one which regards equal justice under law.

When the Fayette County Grand Jury No.2 issued a presentment, by law, it had to also be approved by Presiding Judge Steve Leskinen.  Thus, presentments are not issued haphazardly.  For a presentment to issue against an individual, evidence must exist that points to a crime.  Moreover, as the district attorney leads the grand jury in its investigation and in the issuance of presentments, the district attorney usually follows the recommendations of a grand jury.  In fact, the case where a district attorney refuses to follow the recommendations of a grand jury is virtually unheard of.  Why would a district attorney urge a presentment to be issued only never to bring an indictment?

This leads us to the heart of the matter:  It is inherently unequal justice under law to prosecute individuals under other presentments while the individual named in the sealed (for 21 months!) 5th Presentment remains unnamed, unindicted, and unprosecuted.

Grand jury secrecy laws are in place to elicit testimony and to shield witnesses from threats; grand jury secrecy laws are not in place to shield district attorneys and judges from public scrutiny and accountability.

It's high time the public received some answers on why the 5th Presentment has remained sealed for 21 months and when it will be unsealed.

After 21 months, it's time for Fayette County Grand Jury Presiding Judge Steve P. Leskinen and Fayette County District Attorney Richard E. Bower to be held accountable to the public which paid for the grand jury and which has every right to know what is being done/what will be done with the sealed 5th Presentment of Fayette County Grand Jury No. 2.

Today, August 12, 2016, marks the 20-month anniversary of the sealing of the 5th Presentment of Fayette County Grand Jury No. 2. -- an Order issued by Presiding Judge Steve P. Leskinen on December 12, 2014.

To view the docket sheet entry of the Order Presenting SEALED Grand Jury Fifth Presentment, see the top of Page 7 of 8 of the Fayette County Grand Jury No. 2 Docket Sheet.

For approximately thirteen months of the former administration of then-District Attorney Jack R. Heneks, Jr., and now for more than seven months of the current administration of Fayette County District Attorney Richard E. Bower, the 5th Presentment of Fayette County Grand Jury No. 2 has remained sealed.

In a previous post in this space we pondered the possible reasons for the dormancy of the 5th Presentment.

Other presentments from Fayette County Grand Jury No. 2 have been prosecuted and penalties have been meted out.  Juxtaposing the prosecutions of other presentments and the 20-month sealing of the 5th Presentment raises serious questions.  While a previous post in this space covered some of those questions, it bears reiteration that the most serious question is the one which regards equal justice under law.

When the Fayette County Grand Jury No.2 issued a presentment, by law, it had to also be approved by Presiding Judge Steve Leskinen.  Thus, presentments are not issued haphazardly.  For a presentment to issue against an individual, evidence must exist that points to a crime.  Moreover, as the district attorney leads the grand jury in its investigation and in the issuance of presentments, the district attorney usually follows the recommendations of a grand jury.  In fact, the case where a district attorney refuses to follow the recommendations of a grand jury is virtually unheard of.  Why would a district attorney urge a presentment to be issued only never to bring an indictment?

This leads us to the heart of the matter:  It is inherently unequal justice under law to prosecute individuals under other presentments while the individual named in the sealed (for 20 months!) 5th Presentment remains unnamed, unindicted, and unprosecuted.

Grand jury secrecy laws are in place to elicit testimony and to shield witnesses from threats; grand jury secrecy laws are not in place to shield district attorneys and judges from public scrutiny and accountability.

It's high time the public received some answers on why the 5th Presentment has remained sealed for 20 months and when it will be unsealed.

After 20 months, it's time for Fayette County Grand Jury Presiding Judge Steve P. Leskinen and Fayette County District Attorney Richard E. Bower to be held accountable to the public which paid for the grand jury and which has every right to know what is being done/what will be done with the sealed 5th Presentment of Fayette County Grand Jury No. 2.

Today, July 12, 2016, marks the 19-month anniversary of the sealing of the 5th Presentment of Fayette County Grand Jury No. 2. -- an Order issued by Presiding Judge Steve P. Leskinen on December 12, 2014.

To view the docket sheet entry of the Order Presenting SEALED Grand Jury Fifth Presentment, see the top of Page 7 of 8 of the Fayette County Grand Jury No. 2 Docket Sheet.

For approximately thirteen months of the former administration of then-District Attorney Jack R. Heneks, Jr., and now for more than six months of the current administration of Fayette County District Attorney Richard E. Bower, the 5th Presentment of Fayette County Grand Jury No. 2 has remained sealed.

In the previous post in this space we pondered the possible reasons for the dormancy of the 5th Presentment and we showed that the prosecutions of at least two of the presentments issued by Fayette County Grand Jury No. 2 are yet proceeding through the Fayette County Court of Common Pleas with the Pennsylvania Office of Attorney General taking over the prosecutions at the request of District Attorney Richard Bower.

While there is much more to say on those prosecutions, gentle readers, let us pause to reflect upon the meaning of the sealed 5th Presentment.  Other presentments from Fayette County Grand Jury No. 2 have been prosecuted and penalties have been meted out.  Juxtaposing the prosecutions of other presentments and the 19-month sealing of the 5th Presentment raises serious questions.  While the previous post in this space covered some of those questions, it bears reiteration that the most serious question is the one which regards equal justice under law.

When the Fayette County Grand Jury No.2 issued a presentment, by law, it had to also be approved by Presiding Judge Steve Leskinen.  Thus, presentments are not issued haphazardly.  For a presentment to issue against an individual, evidence must exist that points to a crime.  Moreover, as the district attorney leads the grand jury in its investigation and in the issuance of presentments, the district attorney usually follows the recommendations of a grand jury.  In fact, the case where a district attorney refuses to follow the recommendations of a grand jury is virtually unheard of.  Why would a district attorney urge a presentment to be issued only never to bring an indictment?

This leads us to the heart of the matter:  It is inherently unequal justice under law to prosecute individuals under other presentments while the individual named in the sealed (for 19 months!) 5th Presentment remains unnamed, unindicted, and unprosecuted.

Grand jury secrecy laws are in place to elicit testimony and to shield witnesses from threats; grand jury secrecy laws are not in place to shield district attorneys and judges from public scrutiny and accountability.

It's high time the public received some answers on why the 5th Presentment has remained sealed for 19 months and when it will be unsealed.

After 19 months, it's time for Fayette County Grand Jury Presiding Judge Steve P. Leskinen and Fayette County District Attorney Richard E. Bower to be accountable to the public which paid for the grand jury and which has every right to know what is being done/what will be done with the sealed 5th Presentment of Fayette County Grand Jury No. 2.

• After the passage of so much time, why has the Fifth Presentment remained sealed?
• Is the subject of the Fifth Presentment on the loose and a danger to the community?
• What are the charges contained in the Fifth Presentment?
• Who is named in the Fifth Presentment?
• Do not Fayette County taxpayers (who paid for the grand jury) have a right to know the contents of the Fifth Presentment?
• Are some presentments being prosecuted, while another/others that should be prosecuted is/are being ignored?
• If the whereabouts of the individual named in the Fifth Presentment is known, and if the individual has not died, where is the unsealing of the Fifth Presentment, the indictment, the arrest, and the prosecution of this individual?
• Of the three, unanimous, May 24, 2012, Fayette County Election Board referrals sent to the Fayette County Office of District Attorney for investigation (each of which was included in the Heneks Application for the impanelment of a grand jury), only the First Referral (Item 12, Paragraph 1) resulted in three presentments/prosecutions.  Were the Second Referral (Item 12, Paragraph 2, which pertained to allegations of election fraud and forgery) and the Third Referral (Item 12, Paragraph 3, which pertained to allegations of election fraud, conspiracy, and perjury) investigated by the grand jury?  
• Does the sealed Fifth Presentment pertain to either the Second Referral or the Third Referral of the Fayette County Election Board?  If so, why didn't another presentment issue from the grand jury which dealt with the remaining, non-investigated Referral, and why hasn't the Fifth Presentment been unsealed?

Today, November 12, 2015, the time span of the sealing of the 5th Presentment of Fayette County Grand Jury No. 2 reaches 11 months.

On Page 7 of the grand jury docket sheet, we see the last two entries made on 06/25/2015, nearly six months ago!

The entries pertained to two Orders by Presiding Judge Steve P. Leskinen -- which Orders granted Motions made by the attorneys for George P. Bozek and Cheryl Lynn Bozek for the "Transcript of any Testimony before Grand Jury that is Exculpatory."

As noted in the previous column, the Bozeks each have a preliminary hearing before MDJ Defino on 11/23/2015.  For the Bozeks, the judicial process continues.

This brings us to the 5th Presentment, and its continuing sealed status.

Here are some pertinent questions:

Why does the 5th Presentment remain sealed after all this time?  After a two-year tenure of the grand jury, one would think that the subject of the 5th Presentment would have been able to have been indicted, arrested, and arraigned in an additional 11 months time.

Speaking of time, if it will take nearly six months time (for the Presentments against the Bozeks to reach the Preliminary Hearing stage, is it realistic to think that in the time remaining in DA Heneks' tenure that he will unseal the 5th Presentment and see the matter through to its final outcome before he leaves office in January 2016, especially with the office's routine duties, and with the intervening holidays?

All indications, thus far, are that Heneks will continue down the road of prosecuting unsealed Presentments, while he ignores and refuses to comment upon the sealed 5th Presentment.

Fayette County citizens who paid for Fayette County Grand Jury No. 2. deserve answers.

Perhaps they will get them from DA-Elect Richard Bower when he takes office in 2016.  

Perhaps it will be DA-Elect Richard Bower who will take his duties seriously and who will unseal the 5th Presentment of Fayette County Grand Jury No. 2.

Perhaps the new year will bring the impanelment of Fayette County Grand Jury No. 3 with additional Presentments.

Today, Saturday, September 12, 2015, marks the nine-month anniversary of the sealing of the 5th Presentment of Fayette County Grand Jury No. 2.

Incontrovertibly, Fayette County Grand Jury No. 2, after sifting through evidence and hearing testimony, issued a 5th Presentment against an individual.  After the two-year tenure of the investigating grand jury and after an additional nine months time, the citizens of Fayette County still do not know against whom the presentment was made and what the charges are.  

At a nine-month remove from the December 12, 2014, sealing of the 5th Presentment, with two election fraud referrals from the May 24, 2012, Fayette County Election Board meeting, one must wonder whether outgoing Fayette County District Attorney Jack R. Heneks, Jr. will indict the subject of the 5th Presentment or whether he will leave office without issuing an indictment.  Will Heneks allow the job to fall to the next district attorney?

Being that no indictments have issued from the Office of the Fayette County District Attorney in the two other unanimous election board referrals on election fraud in Fayette County, and being that only one presentment remains sealed, the foul stench one smells emanating from the direction of the Office of the Fayette County District Attorney is that no serious investigation into at least one of the election fraud referrals ever took place.

Being that the citizens of Fayette County paid for the investigating grand jury, it is incumbent upon District Attorney Jack R. Heneks, Jr. to issue an indictment against the individual named in the 5th Presentment.  Heneks must move to unseal the presentment before he leaves office.  Moreover, if the presentment involves another one of the three election-related referrals made to his office by unanimous vote of the election board, Mr. Heneks will have much explaining to do. 

Yesterday, July 12, 2015, marked the seven-month anniversary of the sealing of the 5th Presentment issued by Fayette County Grand Jury No. 2.

The Fayette County Investigating Grand Jury was seated December 11, 2012, and it was impaneled to deal primarily with overhead copper cable thefts and three election-related (alleged voter fraud and alleged election fraud) referrals from the Fayette County Election Board.  The referrals were sent by unanimous vote of the election board to the Office of the Fayette County District Attorney for investigation on May 24, 2012.

In fact, Fayette County District Attorney Jack R. Heneks, Jr., attended the May 24, 2012, election board meeting in which the three election-related referrals were by unanimous vote sent to his office.

Questions to ponder:

1.  After two years of investigation (i.e., an 18-month tenure of the grand jury with a six-month extension), why has there been a seven-month delay in bringing the subject of the 5th Presentment into custody (i.e., the investigating grand jury statute permits sealed presentments until the individual is taken into custody)?

2.  Three election-related referrals were sent to the Office of the Fayette County District Attorney by the unanimous vote of the Fayette County Election Board (then-Chairman Al Ambrosini, Commissioner Vincent Zapotosky, and Commissioner Angela Zimmerlink).  One of the referrals dealt with absentee ballots in Bullskin Township, which led to three presentments (and indictments) against two current township supervisors and one former township supervisor from Bullskin Township.  From the perspective of the Fayette County Election Board, that means two other election-related referrals were to be addressed by the Fayette County Grand Jury No. 2 -- State Rep. Timothy S. Mahoney's allegations against Michael Cavanagh, and Michael Cavanagh's allegations against State Rep. Timothy S. Mahoney (D-51).  

However, presentments issue only against an individual; therefore, even if the 5th Presentment pertains to another one of the election board referrals, it cannot pertain to both.  Does the 5th Presentment pertain to another one of the election-related referrals of the Fayette County Election Board made by unanimous vote on May 24, 2012?

3.  What are the members of the current board of commissioners (Ambrosini, Zapotosky, and Zimmerlink) -- who comprised the election board on May 24, 2012, and who decided not to hold any hearings, as is their duty under statute -- doing to follow up on the election-related referrals?  What are they doing to ensure Fayette Countians that the allegations were actually investigated?

4.  If the 5th Presentment pertains to another one of the election-related referrals of May 24, two of the three election-related referrals will have resulted in presentments (and one would expect -- charges).  Will the members of the current board of commissioners (Ambrosini, Zapotosky, and Zimmerlink) then adopt a Meatloaf posture (i.e., "Two Outta Three Ain't Bad") or as a matter of justice, will they ask the current election board to institute a hearing and to send its findings to the newly seated district attorney in 2016?

5.  If the 5th Presentment pertains to neither one of the outstanding election-related referrals of May 24, 2012, it will mean that only one of the three election-related referrals will have resulted in presentments. Will the members of the current board of commissioners (Ambrosini, Zapotosky, and Zimmerlink) then adopt a semi-Meatloaf posture (i.e., "One Outta Three Ain't Bad") or as a matter of justice, will they ask the current election board to institute hearings and to send the findings to the newly seated district attorney in 2016?

At this seven-month remove from its sealing, Fayette Countians yet await the unsealing of the 5th Presentment issued by Fayette County Grand Jury No. 2.