Eric Schneiderman, State Attorney General, left, and Robert Wiesner, former Monroe County Water Authority security director ()
A politically connected defendant in a municipal fraud case upstate is alleging that Attorney General Eric Schneiderman’s office broke the law by tipping off the media about a sealed indictment and orchestrating a prejudicial “perp walk.”
Robert Wiesner, the husband of Monroe County Executive Maggie Brooks, is asking a judge to bar Schneiderman’s office from re-indicting him, largely on the grounds that a press aide to the attorney general sent journalists a written invitation to gather outside the AG’s Rochester office “for the purpose of capturing the walk from our office to the police department.”
Schneiderman’s office has already conceded that the indictment must be dismissed because Wiesner was denied an opportunity, requested by his attorney, to testify before the grand jury. But it is seeking to re-submit the case to another grand jury, over the objections of Wiesner, who claims the prosecution is politically motivated, as evidenced by the “perp walk.”
“This was more than a publicity stunt,” Wiesner’s attorney, solo practitioner James Nobles of Rochester, said in papers submitted Monday to Acting Monroe County Judge Robert Noonan. “It was a crime.”
A spokesman for Schneiderman said Wednesday that Wiesner’s “claims are without merit, and we look forward to addressing them in court.”
The controversy stems from the arrest of Wiesner and three other individuals in November on charges related to an alleged bid-ridding scandal.
Records show that the afternoon before the indictment was unsealed, Robert Middaugh, a deputy press secretary in Schneiderman’s Rochester office, sent out an off-the-record advisory alerting the media that “four well-recognized individuals” would be arrested the following day in connection with an “elaborate scheme to defraud Monroe County citizens.”
The Nov. 5, 2013 alert did not identify the suspects, but said they would leave the attorney general’s office at 12:30 p.m. the following afternoon and walk across the street to the Rochester Police Department for processing. Middaugh invited the media to capture the event, adding that a press release, the unsealed indictment and a “sound bite” from Schneiderman would be provided after the arraignment.
Virtually every news outlet in Rochester was on hand for the perp walk, when Wiesner was paraded past the media in handcuffs, only to be released on his own recognizance on a motion by the attorney general’s office.
Wiesner, who retired as a captain from the Rochester Police Department after a 33-year career in law enforcement, had no prior record and was named in only two counts in a 24-count indictment, both alleging Class E felony violations of the General Business Law, which the attorney general could address civilly, according to court records.
Shortly after the incident, Middaugh was suspended and later left the office. Schneiderman told the press that the matter was “mishandled” by a “junior staffer” and that the pre-arraignment alert was distributed without approval.
In a document submitted to the court on Monday, Nobles disputed that Middaugh was a “junior staffer.” Rather, Nobles said Middaugh “was a political operative who committed a crime while trying to maximize the political value of a prosecution.” Brooks, the defendant’s husband, is a Republican; Schneiderman is a Democrat.
The defense attorney said that even though Middaugh had only been on Schneiderman’s staff for five months, he was a prior spokesman for the Obama Administration and had significant ties to the Democratic Party. Nobles suggested it was unbelievable that someone with Middaugh’s experience would take it upon himself to alert the media to a sealed indictment.
Additionally, Nobles said that an email to the lead prosecutor, Ann Marie Preissler, by another defense attorney, demonstrated that higher-ups in the attorney general’s office were apprised of the perp walk at least an hour before it took place, contradicting Schneiderman’s assertion that Middauch acted alone and “without the approval of anyone.”
The email, attached to Nobles’ papers as an exhibit, was sent to Preissler by David Rothenberg, of Geiger and Rothenberg in Rochester, who represents another defendant in the case. In the email, time stamped at 11:28 a.m. on Nov. 6, or an hour before the perp walk, Rothenberg complained to Preissler about the pre-arraignment invitation to the press.
“To say that this invitation, and the public disclosure of a sealed indictment, is inappropriate is an understatement,” Rothenberg said in his email. “We request permission to appear voluntarily at 2:30 … and not to appear at the scheduled ‘perp walk.’”
Preissler testified in a deposition on Dec. 17 that neither she nor co-counsel William Schaeffer had anything to do with the advisory and learned about it only about an hour before the perp walk.
Rothenberg was not immediately available for comment.
In any case, Nobles maintained that Middaugh did not act alone, since his media alert contained “very specific information” on where the defendants would surrender and how they would travel to the police station for processing, information that only the prosecutor would have.
“Every local media outlet had a story (many with video of the ‘perp walk’) on its website prior to the arraignment,” Nobles said in his submission. “None of this would have been possible without the calculated, and undoubtedly reviewed and approved, press release from the prior evening.”
Nobles said anyone involved in releasing information from a sealed indictment—even though the defendants were not identified—violated both felony and misdemeanor provisions of the Penal Law. He also said that the perp walk would make it impossible to seat an unbiased grand jury in Monroe County. Nobles said there does not appear to be any clear authority for a change of venue at the grand jury stage.
Earlier this year, and in response to Nobles’ complaint about the press advisory and perp walk, Noonan issued a subpoena duces tecum and reviewed in camera internal communications from Schneiderman’s office.
In a May 20 decision, Noonan said the documents, which remain under seal, do not establish a political motive for the prosecution or per walk, notwithstanding the fact that Middaugh distributed the alert on Election Day.
“While the [attorney general's office] intended to publicize the indictment, nothing would establish that the indictment was driven by partisanship,” Noonan wrote. “Although [Middaugh's email to the media] was not entirely the product of a rogue press officer, its form and substance would appear, as the [attorney general] contended, beyond that which was authorized.”
Middaugh could not be reached for comment.