The grand jury deciding whether or not to indict Elections Commissioner Ed McDonough and Councilman Michael LoPorto - the only two names of the nine implicated in the 2009 Working Families Party primary voter fraud scandal on the subpoenas handed out to witnesses called to testify - has not heard testimony in the case at all this week and likely won't.

We'd be surprised if Trey Smith, the special prosecutor, presents any evidence before the New Year.

Could be for any number of reasons, including but not limited too, the soft hearts people get around the holidays and maybe less willing to indict someone - given the fact an indictment will pretty much screw up a person's life.

But that's just a guess.

Well, today was interesting.


Kevin O'Malley, the records keeper for the Democratic side of the Board of Elections, testified for the second time but this time with an attorney, Andrew SaFranko, by his side.

O'Malley testified last week for close to two hours, much longer than any other of the line Board of Elections employees who walked through door into the grand jury room.

SaFranko is no lightweight and works with the law firm of O'Connell and Aronowitz, a heavyweight firm.

The fact he came back with any attorney can mean a bunch of things, the fact he came back with someone like SaFranko can mean a bunch of others. Here are some possibilities:

- Something he told the grand jury the first time around didn't jive with what others at the board told the panel, which could mean perjury.

- He said something to incriminate himself.

- The grand jury had more questions of him before they vote on whether or not to indict Councilman Michael LoPorto and/or Elections Commissioner Ed McDonough, the only two of the nine implicated the panel is hearing about during this round of witnesses called by special prosecutor Trey Smith.

- He said something stupid the first time around and now wants to make it right.

- Or, it could be as simple as he's just being careful and covering his own butt.

Tune in tomorrow as we expect the grand jury will again hear testimony.

Everyone expects the grand jury to meet again today (Tuesday) to address the voter fraud scandal and how it relates to Councilman Michael LoPorto and Board of Elections Commissioner Ed McDonough.


At least two more witnesses from the Board of Elections are expected to testify as well as an expert in deciphering handwriting, who will presumably talk about forged signatures. Again, filling out details on the absentee ballot application is no big deal - provided the excuses for being unable to vote are legit - but filling in signatures is a no-no.

After today, we're not sure who else special prosecutor Trey Smith is going to call in this round of his investigation if anyone. We're also not sure how the vote will go or when it will happen.

But, once Smith asks the 23 people sitting on the grand jury to vote it will go something like this:

He gives them a sheet of paper with the charges they are to consider - which could include filing a false instrument, forgery, conspiracy, who knows how many violations of Election Law and just being plain stupid about the whole thing. OK that last one isn't really a crime but it plays into everything else.

Then Smith will likely leave the room and the grand jury will indict LoPorto and McDonough on any or all of the above and who knows what other charges.

Then it's round two where the other five of the nine initially implicated will be under scrutiny. Two of the those nine, Councilman Kevin McGrath and Tony Difiglio, testified during this round so their fate, through likely plea bargains in exchange for their testimony, is already sealed. And we're guessing part of that deal is they make another appearance or two or three.

A slow day on the grand jury front today with a bunch of employees from the Board of Elections and the Troy City Clerks office testifying.


Probably pretty boring stuff though we're sure the grand jurors got an ear full of how the whole election process works, and in particular how it applies to absentee ballots.

Safe to say, the way the Democrats did it in the 2009 Working Families Party primary is not how it was meant to work.

Here's a run down about what is legal and what isn't:

An application for an absentee ballot can be released to anyone on any voter's behalf at the request of the voter. The voter has to sign the application in his or her own hand - imagine that - but anyone can fill in the other stuff, like the reason the voter couldn't make it to the polls. Of course signing the voters name to get the application is a no-no but filling out the extraneous information is not a problem, provided it is done in good faith. If it isn't, it's a problem.

The ballot is a different story. It can only be filled out by the voter, signed by the voter and the envelope can only presumably be licked by the voter. That's where the DNA sample given by the nine Democrats implicated in the scandal comes in.

The problem the Dems have, according to the statements given to the State Police by the alleged defrauded voters, is the Dems just took a pen to everything - including the signatures.

Given the 300 hours Trey Smith, the special prosecutor with a reputation for being thorough, put in and the fact State Police investigators are also involved, odds are the Democrats took a pen to things they should not have.

There are likely two indictments coming in a hurry, that of Councilman Michael LoPorto and Democratic Elections Commissioner Ed McDonough, who the grand jury is hearing evidence against now. We just don't think Smith would be doing what he's doing if he weren't confident he could indict. As the saying goes, anyone can indict a ham sandwich.

Friday is an off day, as far as we know, but the grand jury will pick up again next week, as far as we know. We'll continue to fill you in, as far as we know.

Sara Couch and Tony DiFiglio also made appearances in front of the grand jury. While neither talked for very long we're sure they did some damage to Councilman Michael LoPorto and Elections Commissioner Ed McDonough - the only two targeted in this round of testimony. More on that later.


Tomorrow, Thursday, expect employees from the Board of Elections to make an appearance and employees from the Troy City Clerks office. We have some ideas of who will be front and center but rather than speculate we'll wait until they make an appearance.

One thing we don't get is why City Clerk Bill McInerney isn't included in this round of grand jury testimony - the only two names on the subpoenas are LoPorto and McDonough - but that's special prosecutor Trey Smith's call and there is no reason to question his strategy.

Back to today's action. Couch, the working families operative told State Police LoPorto handed her close to 30 absentee ballots wrapped in a newspaper and told her to drop them off at the Board of Elections.

DiFiglio used to work at the Troy Housing Authority and was charged with telling the other guys which tenants moved away so they could vote them absentee. Well, we suppose they were out of the area but we're willing to guess they also had no interest in the WFP primary let alone taking the time and effort to vote absentee.

Couch was also present at the infamous meeting at LoPortos where McDonough asked if anyone was taping the conversation. Somehow we think someone was taping it because she had a pretty vivid memory of what was said.

DiFiglio is probably the most honest one of the bunch. He told State Police he got interested in politics in high school and was a loyal foot soldier for the Democratic Party. He said the absentee ballot game was played with regularity by both parties and the only reason the Dems got caught was the volume of the ballots they turned in at the 11th hour.

Now, he lost his job then lost his house because he lost his job and told State Police nobody will talk to him anymore.

"Clem (Campana) is the only person in the party who will speak to me about the whole mess. The rest of them they don't speak to me. They all have my number and I haven't spoken to them. That's what they do when they have a sucker I guess," he said. "To political insiders in the county, what appears to be a huge conspiracy to non political persons, is really a normal political tactic that went out of control ..."

We've been saying if for years and will say it again, that "normal political tactic" would go away if the state banned the ability of minor parties to endorse major party candidates.

Councilman Kevin McGrath testified in front of the grand jury this morning for more than two hours, according to reporter Dave Canfield, who has been staking out the Rensselaer County Courthouse.


That can only mean one thing – McGrath cut a deal with special prosecutor Trey Smith.

We have no idea what that deal is but its a good guess he'll plead to a lesser crime and step down from the council in return for not getting whacked with a felony.

In his statement to State Police, McGrath said he saw Ed McDonough, the elections commissioner, fill in fake excuses for why voters were not in town to vote in the 2009 Working Families Party primary and told investigators he believed “Mac, Dan and John were behind the fraudulent votes.” And he said he believed “Ed regretted that it happened and that he didn’t stop it. Ed could have stopped the whole thing when he asked John Brown and I to leave his office that Monday prior to the primary.”

Mac is City Clerk William McInerney. John is Councilman John Brown. And Dan is his brother.

Those three names are not relevant to this portion of the proceeding because the grand jury is only hearing evidence against McDounough and Councilman Michael LoPorto.

But, the fact McGrath is throwing them around, and now that it’s evident he will throw them around in front of the grand jury makes it rather difficult, if not impossible to sit on the council with the same guys he’s throwing under the bus.

If part of the deal doesn’t include stepping down, our guess he does so voluntarily.

More on this later as it reverberates through town.

Jim Franco

Day one is done and nothing too exciting came out of it. Sixteen alleged voters testified, presumably about having their vote stolen in the Working Families Party primary in 2009.


Pretty routine stuff and all expected.

What everyone is holding their breath over is which one of the nine implicated Democrats will flip and testify against some or all of the others. The odds on favorite is Kevin McGrath - he, from what we understand, has the most to lose with a felony conviction.

The first day was slow but this is going to be a drawn out thing. Special Prosecutor Trey Smith is taking his time but that's not unexpected either. He has a reputation of being meticulous and a pretty straight shooter too. He is a Democrat, after all, and yet shows no indication he will go easy on members of his own party.

In his request for getting paid $125 an hour - which was reduced to $100 an hour by Columbia County Judge Paul Czajka - he implied he'd rather squeeze guilty pleas out of some or all rather than go to trial or trials. Squeeze is meant with all due affection, by the way, and not meant to imply anything sinister. A guilty plea by any or all of those implicated would save time, money and probably the inevitable outcome anyway.

There was a bunch of chatter around town about why the subpoenas only targeted Election Commissioner Ed McDonough and Councilman Mike LoPorto and one explanation is that Smith didn't need DNA to get indictments against those two. Lending credibility to that theory is Smith's request for payment, in which he states he won't bring DNA evidence until sometime after Jan. 1.

We'll end this post by saying we fully expect some outrage over Smith getting paid $100 an hour but that's really not bad considering the caliber of attorney he is and the job he's done so far.

What began in November 2009 will start to end today.

OK, that doesn't make much sense, but today the legal end of what will be one of the biggest political scandals in Rensselaer County history kicks off this morning at 10 a.m.

And it should be quite the show.

Trey Smith, the special prosecutor, is focusing this round on Democratic Election Commissioner Ed McDonough and Councilman Michael LoPorto -- the only two of the nine implicated to appear on the subpoenas that went out last week.

We've heard there could be dozens of witnesses over three, possibly four, days. We only know for sure employees at the county Board of Elections will be there on Thursday so we can only guess there will be a long line of allegedly defrauded voters to set the stage. Or maybe not, maybe only their statements to the State Police will be enough. We'll know better as the day goes on.

Also, why only those two? Why not the other seven councilmen, operatives and appointed officials named by voters or others of participating in apparently widespread voter fraud in the 2009 Working Families Party primary.

We've heard a bunch of stuff like that he's still waiting on the DNA to come back from the State Police and the case is so strong against these two that DNA isn't needed. We're not sure if we buy that one or not but who knows. It's plausible.

Or he could just be biting off a little bit a time. One mistake made by Michael Katzer, the special prosecutor who brought charges against former County Executive Henry Zwack, is he went for the whole enchilada and found himself up against some of the best lawyers in the Capital District like Stewart Jones, Terry Kindlon, Bill Dryer and Tom Nidle -- all at the same time.

We honestly have no idea what Smith is up to or what direction he'll take this case but it's going to be a whole lot of fun to watch.

Check back throughout the day and we'll give you the goings on at the court house and our best guess of what's happening behind the top secret closed door of the grand jury room.