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The lawyer who last week acknowledged that he had given an explosive videotape of Brooklyn Supreme Court Justice Gerald P. Garson accepting $1,000 in cash to Fox 5 News is seeking to turn the tables by demanding sanctions against Brooklyn District Attorney Charles J. Hynes. In a letter faxed late Friday night, attorney Gerald J. McMahon asserted that there was no legal bar to his releasing the tape to Fox 5 and accused Mr. Hynes of maligning him through “ad hominem attacks.” Mr. Hynes was quoted Friday in a Newsday article as calling Mr. McMahon’s release of the tape “shameless” and describing the matter as “something that will be determined by the disciplinary committee.” Mr. Hynes also was quoted as saying he would seek the appointment of a special prosecutor to investigate the release of the tape. The district attorney was not backing down yesterday. Though his spokesman, Jerry Schmetterer, Mr. Hynes repeated that Mr. McMahon’s “conduct is shameless and he has done nothing to convince me otherwise.” In response to Mr. McMahon’s letter, Justice Steven W. Fisher has scheduled a conference for Friday morning. Justice Garson’s lawyer, Ronald P. Fischetti, joined in Mr. McMahon’s request for a conference, but asked that the focus be the prejudicial nature of the Fox 5 newscast. The conference is expected to address concerns raised by both lawyers. At the heart of the dispute is a videotape showing Justice Garson, after some resistance, accepting a $1,000 cash referral fee from lawyer Paul Siminovsky, who is cooperating with the prosecution in the bribery case against Justice Garson and four co-defendants. Last Tuesday’s broadcast of portions of the tape on Fox 5 News at 10 p.m. prompted Justice Fisher to convene a conference the next day at which both Mr. Hynes and Mr. Fischetti vehemently protested the release of the tape as highly prejudicial. Justice Fisher reportedly told the lawyers present that he intended to write all counsel to ask them what they knew about the release of the tape. Mr. McMahon, who represents one of Justice Garson’s co-defendants, did not attend last Wednesday’s conference. But on Thursday he wrote to Justice Fisher taking responsibility for the release of the tape. In his letter, Mr. McMahon said he was responding to an inquiry from Justice Fisher’s chambers asking whether he had provided the tape to Fox 5. Mr. McMahon also asserted in his letter that he was unaware of any “prohibition or ‘gag’ order” barring the release of discovery material in the case. Claim Amplified In his letter faxed about midnight on Friday to Justice Fisher and the other counsel in the case, Mr. McMahon marshaled his case to demonstrate that there was no legal bar to his releasing the tape as well as to ask for sanctions against Mr. Hynes. Mr. McMahon took direct issue with Justice Fisher’s reference to the tape broadcast on Fox 5 as having been sealed by an order issued by First Deputy Administrative Judge Ann Pfau on March 11, 2003. In the letter, Mr. McMahon labeled as “incorrect” Justice Fisher’s “suggestion” about the sealing. The suggestion is in error, Mr. McMahon contended, because only the original tape recorded by investigators was sealed by Judge Pfau’s order and it did not apply to tapes made to further the discovery process. That position is supported, Mr. McMahon said, by a statement in a letter written by the prosecutor in charge of discovery. That prosecutor, John C.L. Dixon, who has since left the office, had referred to the need to create a “working copy” to allow duplication of the tapes “since the original wiretap tapes are sealed” in a letter dated May 23, 2003, Mr. McMahon wrote. Mr. McMahon asserted in his letter that no restrictions were placed on the release of tapes made for discovery purposes. By comparison, he noted, all sides had agreed by stipulation to place restrictions on the release of draft transcripts of the tapes. In an interview yesterday, Mr. McMahon said the reason the original tape, as opposed to copies, would be protected is to insure the integrity of the original should claims later be made challenging its authenticity. Media Request Denied Justice Fisher, in directly ordering all counsel last Friday not to release any further materials, pointed out that on June 30 he had denied a joint application made by New York City’s major media organizations for access to the tapes made during the probe of Justice Garson. Mr. McMahon yesterday retorted that Justice Fisher’s ” ‘no’ ” to “ someone else asking for the tapes” placed no restrictions on his making the tape available. The order issued by Judge Pfau, who at the time was administrative judge of Supreme Court in Brooklyn, was made in her capacity as the judge who issued warrants for electronic eavesdropping during the six-month probe of Justice Garson. During the course of the probe, 64 videotapes, 40 compact discs and 1,009 audiotapes were recorded pursuant to court authorized wiretaps. The investigation culminated in the March 10, 2003, encounter in which Mr. Siminovsky was recorded by video cameras handing Justice Garson $1,000 cash as a referral fee. That encounter was recorded in Justice Garson’s robing room at 210 Joralemon Street. In the tape, the judge is shown first accepting the cash, and then having second thoughts and calling Mr. Siminovsky back to his chambers. After Mr. Siminovsky rebuffed several of his attempts to give the money back, Justice Garson took the cash-filled envelope and put it in his desk drawer. Shortly after the March 10, 2003, video was recorded, Justice Garson was arrested and charged with receiving an award for official misconduct. The substance of the charge was that Justice Garson had received meals, drinks and, in one case, a box of cigars from Mr. Siminovsky for favored treatment, such as giving him ex parte advice on how to handle matters before the judge. Justice Garson was also accused of accepting referral fees from Mr. Siminovsky on four occasions, including the one captured on the March 10, 2003, video. In August, the charges against Justice Garson were upgraded to bribery with the prosecution contending that he doled out appointment to Mr. Siminovsky as a law guardian for children in divorce cases in exchange for thousands of dollars worth of free meals and drinks. Four co-defendants remain in the case, including Nissim Elmann, who is represented by Mr. McMahon. Mr. Elmann, a seller of electronics equipment, is accused of recruiting clients for the bribery conspiracy at the courthouse at Joralemon Street, where Justice Garson heard divorce cases. Mr. Fischetti wrote Justice Fisher yesterday to support the request for a conference, but the subject of his request was completely different from Mr. McMahon’s. Mr. Fischetti asked Justice Fisher to explore the “extremely damaging” impact of another Fox 5 newscast, which he asserted had been aired three times already and may be broadcast again. That broadcast, Mr. Fischetti complained in his letter, showed the wife of one of the co-defendants, who is accused of attempting to bribe Justice Garson, expressing outrage while viewing the tape of Mr. Siminovsky giving the judge money.

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