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June 10, 2011 - 1:41pm

Attorneys argue over Ewoks, phone calls and free speech in Chris Charvella case

posted by Howard B. Owens in batavia, crime, Le Roy, Chris Charvella, Jay Grasso.

UPDATED 3:26 p.m., with clarification of a quote.

In the interest of justice, the aggravated harassment in the second-degree charges filed against political activist Chris Charvella should be dropped, Charvella's attorney argued in Town of Batavia Court this morning.

The hearing was prompted by the defense's motion to dismiss the case.

"If you allow this case to go forward, what is the public going to think?" Charvella's attorney, E. Robert Fussell, told Justice Mike Cleveland. "Are they going to trust a system where a politician is allowed to call the police and have a political opponent silenced?"

Assistant District Attorney Melissa Cianfrini, representing the people, argued that the case against Charvella is neither political nor does it conflict with the First Amendment.

The case is entirely about Charvella's conduct, Cianfrini argued. The key question is whether that conduct violates the harassment, 2nd, statute against making phone calls with no legitimate purpose.

Charvella is accused of placing a phone call to Legislator Jay Grasso and leaving a message on his answering machine. The message said, "Thank you for reading my blog."

Cianfrini argued that the message had no legitimate purpose and taken within the context of comments made by Charvella on The Batavian and on his own blog, constitutes an attempt to threaten and intimidate Grasso.

"What Mr. Charvella did was serious," Cianfrini said. "It wasn't a light moment. He wasn't trying to be funny. It was serious and if you look at the whole body of conduct, it is serious."

In order for the case to be considered serious, Fussell argued, the conduct of Charvella would have to be seen by a reasonable person as intimidating. Just because the alleged victim, he argued, felt alarmed doesn't mean the conduct is in fact harassing.

"Mr. Grasso is either an exceptionally sensitive person who is easily frightened, or he is acting to shut out Mr. Charvella from the political process," Fussell said. 

A key fact disputed during the hearing was the timing of the phone message in relation to a post Charvella did with a picture of an Ewok with the caption, "Prepare your anus."

Cianfrini said the posting of the picture followed by the phone message was clear evidence that Charvella intended to intimidate Grasso.

Fussell countered that the Ewok picture was posted after the phone call, so Grasso could not have seen the picture before getting the phone message.  

To which Cianfrini replied that if that's the case, Charvella's conduct potentially constituted a threat.

Fussell quickly replied that Charvella hadn't been charged with such a crime.

"If those are the facts that come out at trial, the people reserve the right to file that charge," Cianfrini said. "He's on notice."

A few times during the oral arguments, Cianfrini made the point that Grasso wasn't acting in his capacity as a sitting legislator, so the First Amendment didn't apply to the case.

The events around the case were entirely personal, Cianfrini argued, and not about politics or anything Grasso did as a government official.

"That’s what the First Amendment deals with, the government not politics  the placement of a political sign or personal conflicts," Cianfrini said.*

And even if it is a political issue, Cianfrini said, the case isn't about the content of any postings or messages. It's about Charvella's conduct, which Cianfrini argued, was clearly intended to intimidate and harass Grasso, causing him to feel alarmed.

One key piece of evidence not available in the case, Fussell complained, is the phone message itself. The recording was not preserved.

Fussell said the recording would provide important context to the message -- what was Charvella's tone of voice? Was it threatening? Was it humorous? 

It's hard to believe, Fussell said, given Grasso's background in law enforcement, that he didn't know to preserve the evidence.

Cianfrini said Grasso's law enforcement training is irrelevant to the case and that the recording is not needed since Charvella doesn't dispute the fact that he left the message.

As the oral arguments before Justice Cleveland wore down, the tensions between the attorneys intensified.

A couple of times near the close, Fussell made the point that if the case goes forward, Charvella will incur significant legal expenses (Charvella has already spent $7,000 on the case) while Grasso is getting the services of Cianfrini for free.

"That's not accurate, you're honor," Cianfrini said. "I take exception to that remark, I represent the people of the State of New York and I can't stand here and let that go on the record."

*NOTE: Quote clarified after further discussion with Melissa Cianfrini. 

Beth Kinsley
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What a waste of money. I can't believe that the DA continues to pursue this case. Ewoks? What a joke.
Daniel Jones
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I actually feel bad for the DAs office as they are caught up in this, they really have no choice except to prosecute the charge but honestly, there has been way too many shenanigans over a phone call where no one was hurt. There was no threat made. This is the kind of stuff that makes our county a regional joke.
Daniel Jones
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It seems like the case has always been more about retribution than justice.
Alan Bedenko
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This is beyond ridiculous. The DA is insinuating that Charvella's blog post, posted after the phone message (i.e., spoliated evidence), constitutes a threat? I'd appreciate it if Ms. Cianfrini could explain to me (or a jury) how Mr. Charvella might go about procuring an Ewok who might do something to Mr. Grasso's anus? Because, if Charvella had intended to threaten someone (he didn't, and state of mind is an element that must be proven), he threatened to retain the services of a fictional alien character from a film released in 1983 who looks somewhat sinister. What seems exquisitely more outrageous to me, and is omitted from all discussion of this case, is the fact that apparently Grasso came onto Charvella's property without permission, invitation, or legitimate purpose and placed litter (i.e., a Ranzenhofer for Senate sign) on Charvella's lawn, with a handwritten message indicating that he had been there. _That's_ menacing; _that_ was done with an intention to harass or intimidate. I'd find it much more intimidating if a political opponent came onto my property and left a note like that, than by a simple phone call saying, "thank you". What the DA is attempting to do here is criminalize sarcasm. Did Charvella have a legitimate excuse to call and leave a message on Grasso's phone? Absolutely - Grasso had already apparently harassed him by coming onto his property, so Charvella thanked him for reading what he had wrote about him. The leaving of the sign was the reason - the justification for the phone call. That call didn't happen in a vacuum. So, Chris, stick to your guns and fight this thing. The judge will probably take it to trial, and when you're acquitted, I hope you sue Grass for malicious prosecution and trespassing.
George Richardson
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Revenge on your dime and Charvella's. Hopefully Justice Mike Cleveland deserves his position and believes in justice. Thanking someone for reading your blog is as much a purpose as a machine telling you to vote for Jane Corwin. It's a total waste of taxpayers money. They should have just duked it out and been done with it.
Phil Ricci
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It's a waste of time. The plain truth of this case is that two grown adults were behaving like children, and one after getting mad, instead of calling his mommy, called the police. I'll bet money hands down that if you told Chris the night he made that stupid call that it was going to cost him $7,000 or more, he probably would have just let it lie. The fact though that this has cost all of us the same if not more is just plain disgraceful. Chris and I have not seen eye to eye on many different things, but I do not believe that he was trying to be threatening. He was trying to be cute, and it didn't work. I think it's time to put this serade to bed and move on to more pressing issues.
Beth Kinsley
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Second time I agree with you in one day Phil. We're on a roll here:)
Phil Ricci
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Uh Oh! :-)
Lorie Longhany
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So Chris's attorney apparently proves in court that Grasso lied about or misrepresented the time line of events to police and the DA's reaction is to have Chris arrested again?
Dave Meyer
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"legislator" Grasso and the DA's office ought to be ashamed of themselves for pursuing this matter. How can they be so transparent as to even think that anyone buys their assertion that this isn't completely political.? What a joke. Except this time the joke is on the taxpayers.
Kyle Couchman
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Sure hope Mr. Grasso doesnt plan on running for anything anytime soon. I think this has effectively ended his career as any kind of representative of any kind.
George Richardson
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No Kyle, Mr. Grasso has gone back to school for now but he will be back. People have short term memories due to demon marijuana. At least that's what I like to think.
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How much has all this cost the County so far? The police should have taken Grasso's answering machine into evidence. The DA can’t even present the evidence because they didn’t keep a recording of it. This case is a joke and a waste of money. Chris should have some way to recoup the 7k he has spent for his defense so far.
Bea McManis
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Grasso may be getting his legal defense for free, but it is costing the taxpayers a pretty penny. Where is the outrage?
George Richardson
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I'm outraged Bea, vicariously of course.
George Richardson
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"Chris should have some way to recoup the 7k he has spent for his defense so far." I have already written to Judge Judy and she is thinking about it. I hope Justice Mike Cleveland is a smart man and she won't be necessary.
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"Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." --Harry S Truman (1884 - 1972)
Jeremiah Pedro
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I may not agree with everything that Chris says or does but he has the right to harbor and express his own opinions as does everyone else.
George Richardson
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I don't know why this incident pisses me off but it seems to have something to do with the right wing radical social engineering plan in process and progress as described by Newt Gingrich on live TV a little while back before y'all can still remember.
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"A key fact disputed during the hearing was the timing of the phone message in relation to a post Charvella did with a picture of an Ewok with the caption, "Prepare your anus." Cianfrini said the posting of the picture followed by the phone message was clear evidence that Charvella intended to intimidate Grasso. Fussell countered that the Ewok picture was posted after the phone call, so Grasso could not have seen the picture before getting the phone message." Like I said earlier it is extremely alarming, but not surprising, that Grasso lied about the timeline, just as he piece mealed the screen shots to manipulate preconceived threats he carefully gleened from this very website with the intention to show the investigator intent by Chris that just didn't exist. The truth is, Mr Grasso is a master manipulator and a habitual liar. He started this with sign shenanigens. He set the entire incident in motion. It's nothing new, we've seen this stuff from him for years. I just hope for justice sake that Judge Cleveland will see the inconsistency and manipulation and throw this thing out.
Beth Kinsley
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First, the DA insists that this isn't about politics or the First Amendment, but everything happened within the context of a political campaign, which is the very embodiment of the first amendment. Second, the ADA should spend less time clarifying quotes with Howard and more time figuring out how Grasso managed to fleece her on the time line. He apparently lied in his deposition and they're just now figuring it out. Isn't that called perjury?
Howard B. Owens
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Beth, I invited Melissa Cianfrini to correct any mistakes when I wrote to her to request a copy of her written motion papers (which she is providing, but I don't have yet). In any motion hearing, the attorneys often talk fast and jump from subject to subject. I found her clarifications helpful and I wouldn't have agreed to the clarification if I didn't feel that that they weren't accurate. Any discrepancy with the original report and the clarification is due to my own misunderstanding. I did take her statements one way when I heard them the first time, but when we spoke and she reminded me of other things she said, I felt I understood her position better. Don't blame her for any seeming contradiction. Blame me.
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I find this whole thing nauseating. The county does not care how frivolous the charges are. The county doesn't care how much money gets wasted. Reminds me of a case I was quite familiar with. No crime was committed, but the defendant was threatened with incarceration for not accepting the ADA's deal, and instead asking for a trial. I hope Mr.Charvella gets compensated for the 7 grand this has cost him. That is of course dependent on a not guilty verdict.
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Regardless of how the correction came about, it seems she should be concerned that Mr. Grasso's statements about the order of events was not truthful.
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In Genesee County, when it comes to stupidity, money is no object. Everyone involved should be ashamed of themselves. Judge Judy would take care of this in 30 minutes or less. I have a strange feeling , that the way this is being handled, its going to be like the Energizer bunny....its going to go on and on and on and on......politics....go figure....
Kyle Couchman
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Seems to me that we "The People" that Melissa Cianfrini is representing should send alot of letters to her or her boss..... Indicating the opinion of "the people" they claim to represent, and detail how we are all displeased and feel this a waste of taxpayers time and money. Might make them re-consider how they handle this particular case especially the way the evidence and statements seem to be failing under scrutiny.
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Ms. Cianfrini misapprehends the First Amendment. She is the government. That is, she is the representative of the same government that had arrested - and is prosecuting - Mr. Charvella. It is prosecuting him for the palpably reasonable and justified "thank you" speech left on a conveniently absent voice mail. She may not like it, but she _is_ unwittingly doing Grasso's dirty work for him, gratis. She may not like it, but because Charvella is being prosecuted for wholly political, justified speech, this does have first amendment ramifications. Does the Genesee County DA's office live in some parallel universe where government prosecution of speech isn't a constitutional issue and Ewoks exist and could potentially do something to someone's anus?
Bea McManis
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Posted by Alan Bedenko on June 11, 2011 - 7:11am Does the Genesee County DA's office live in some parallel universe where government prosecution of speech isn't a constitutional issue and Ewoks exist and could potentially do something to someone's anus? Al, Welcome to Genesee Co. politics. This is the land of "it's okay if you are a Republican". I'd like to say if the situation was reversed, this would never get this far. However, IF the situation was reversed, I can't think of ONE person who would have someone arrested for making a benign phone call (hell, if I knew there was a law about making a call with no legitimate purpose, there are many people who should be sitting a cell today). This event sent a warning shot to anyone who disagreed with or felt you had been wronged by one of our very RED legislative body. If you contact them, and if you are a member of the opposition party, you might be the next person getting a visit from the state troopers and you might be the next person sitting in Chris' seat. Grasso's timeline, as we all know, doesn't fit. His fear of an ewok image posted AFTER the "thank you for reading my blog" phone call is laughable. One can't help but wonder if Chris will also be arrested for posting that image because of Grasso's fear of a cartoon character? By the way, did he "prepare" and how long did he wait before he realized that an ewok wasn't coming after him? The entire episode, prompted by the political signs placed on Chris' property, can't be brushed away as two guys acting like children. Brushing it off ignores the fact that signs are placed on private property with permission. Brushing it off exonerates the GOP operative who did place the signs. Brushing it off tells us that a Genesee Co. resident shouldn't exercise their right to free speech. Isn't there an election law about signs? Oh, but wait, this is Genesee Co. It's okay if you are a Republican. I, like many others, hopes the judge finds in favor of Chris and restores some confidence in our justice system.
John Roach
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Don't blame the DA. They had a an arrest and on its face a serious charge filed. They go through the proper procedure and it is now up to a judge to decide it there is enough to go forward. If you don't like what is going on, keep your focus on both Grasso and Chris. Remember, this all started with Chris just guessing Grasso went on his property and Grasso saying his wife felt threatened (he blames her).
Chris Charvella
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Well, John, if we're going to nitpick, let's not forget who told the Troopers to make the arrest in the first place: From Howard Owens on Nov. 17th, 2010: He also said the State Police checked with the District Attorney's Office before deciding to make an arrest. "We thought maybe it was (harassment), maybe it wasn't. He (the DA) felt that it was so we proceeded with the arrest," Schmidt said.
George Richardson
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Did anyone think to ask Mr Grasso if he placed the sign or knew who placed the sign, while under oath? Would he perjure himself? Then there is this troubling statement of hubris and overreach. "If those are the facts that come out at trial, the people reserve the right to file that charge," Cianfrini said. "He's on notice." That sure reads like harassment to me. What do the "people" think of blatant threats by local government employees?
Bea McManis
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Posted by John Roach on June 11, 2011 - 9:25am Remember, this all started with Chris just guessing Grasso went on his property.... John. Are you saying that Chris started this? I thought it all started by having someone placing the sign on Chris' property. Isn't that the real beginning of this story? Chris' reaction was the result of that action. Or maybe I'm missing something here. Regarding Grasso's wife: If she felt threatened by a "thank you for reading my blog" phone call, how would she react when an unhappy constituent calling to complain about something?
Howard B. Owens
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When did Mrs. Grasso know there was a picture of a Ewok and how did she know it?
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If a single, unwelcome phone call is harassment, why aren't we prosecuting the multiple, unwanted phone calls from Jane Corwin, Nick Langworthy, et al? Perhaps if Chris Charvella had merely asked Mr. Grasso, "Do you have Prince Albert in the can?," all of this would have remained in the realm of harmless fun. Chris should have known better than to introduce the vicious, bung-threatening Ewok! I (along with anal-retentive Republicans - everywhere) feel terribly sorry for Mr. Grasso, who probably hasn't had a decent night's sleep since threatened by a tunneling Ewok invading his colon. I suggest that Mr. Grasso purchase a sturdy chastity belt to defend against any furry fanny forager. (Most manufacturers guarantee their belts accommodate Tangas!)
Lorie Longhany
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Let's go back in time a bit to July 24, 1997. At this time Grasso was a Deputy road patrol officer working for the Genesee Co Sheriff's office. On this evening Grasso was quoted in court that he was "looking for drunks". There was an arrest that evening. A husband and wife were coming home from Tops market to their residence less than a mile away. One of their tail lights were out (how many of us have been stopped for something like this?) and Officer Grasso pulled them over. What happened next is nothing less than an obscene police over reach, where a disabled man in a back brace was manhandled and abused....and then arrested for multiple crimes, including a felony that could have sent this man to prison. Enter Judge Dadd, brought in from Wyoming to avoid conflict of interest. If anyone wants Judge Dadd's conclusion of fact it can be obtained at Genesee County Courthouse indictment no. 3876, The People of the State of NY vs Joseph P Visalli. I'm including just one paragraph in the conclusion. The rest is very interesting as well, but too long to type all of it out. In Judge Dadd's conclusion it states in paragraph 12; The Courtt finds the defendent's testimony more credible concerning the circumstances which led to Deputy Grasso's use of the spray. The defendant's physical condition and the truck's proximity to his residence make it unlikely that he would have actually attempted to attack a police officer by charging at him. Furthermore, the fact that he wore a back brace should have indicated that he did not pose a likely physical threat to the deputy. Under these circumstances, the Court further finds that the officer's use of the pepper spray in response to the defendant's refusal to enter the truck was unreasonable and unauthorized. Thus, the motion must be granted even if it is assumed that the initial stop was a valid traffic stop and not a pretextual stop under New York State law. And in paragraph 13; All the ensuing criminal allegations arose from a fight which was triggered by the unauthorized police conduct. NOW, THEREFORE, it is hereby ORDERED that the motion is granted; and further ORDERED that all evidence obtained pursuant to the June 28, 1996 stop is suppressed and the indictment is dismissed You might be asking what this has to do with Chris' case. What I see is a pattern of bullying and manipulation and yes, deceit.
Frank Bartholomew
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Bea, you hit the nail squarely on the head,welcome to republican county.
Frank Bartholomew
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Lorie, at least the Judge got it right, that does not happen very often.
John Roach
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, Bea,duh. Yes it started with "somebody" putting something on his property, twice. My point is easy to understand, we do not know, and neither do you, if it was Grasso who did it. I still think it was somebody else, but that is just a personal, a clearly a minority, opinion. And we do not know if Grasso put his wife up to saying she was scared. But if the DA did not go ahead with this, people would say they were not doing their job. It's up to a judge now. Just hope he dismisses the case.
C. M. Barons
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John, can't speak for all residents of the county, but I do not consider prosecuting threats from elves, martians, pukas and ewoks to be the DA's job. Are you wearing your Ewok Entry Prevention Device?
Lorie Longhany
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John, I have talked to many in law enforcement about this case and all opinions are that this case is ridiculous and that even the arrest was an overreach and I will never name names because they spoke to me under complete anonymity. Do you read police reports with a 2nd degree harassment charge? It is multiple phone calls, it's stalking, it's assaulting someone -- it's never one innocuous phone call stating "thank you". The process to bring this to resolution is costly for both Genesee Co taxpayers and Chris. And it most certainly is a First Amendment case.
C. M. Barons
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Howard, I'm thinking of marketing an Ewok Entry Prevention Device. ...Get some beer-barrel bung plugs and a couple industrial size rubber bands. What are your ad rates?
John Roach
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Lorie, I agree, this whole thing is a waste. I don't think for a minute his wife knew about the blog entries or that she would had been scared. It is my personal opinion Grasso saw a chance to embarrass a political opponent who walked right into it. If Grasso had run again, I think this would have cost him the election.
Lorie Longhany
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I believe it most certainly would have cost him. "It is my personal opinion Grasso saw a chance to embarrass a political opponent who walked right into it." Your point is spot on. The big question, why would anyone who wants to embarrass a political opponent be allowed to manipulate law enforcement into joining him at county tax payer expense? I always wondered why the arrest didn't come from the Sheriff's office.
Lorie Longhany
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I wonder what the statute of limitation is for having someone arrested for a phone call for no legitimate purpose. I recall a candidate we ran against Grasso telling me that Grasso was calling him numerous times during the campaign for no legitimate purpose. Our candidate's wife found the phone calls very annoying. He opened the door.
John Roach
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Lorie, If the arrest was from the Sheriff's Dept., where Grasso had worked, the cries of favoritism would have been all over the place. I think Grasso knew that. The troopers were the perfect pick.
Bea McManis
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Posted by John Roach on June 11, 2011 - 1:43pm Lorie, I agree, this whole thing is a waste. I don't think for a minute his wife knew about the blog entries or that she would had been scared. It is my personal opinion Grasso saw a chance to embarrass a political opponent who walked right into it. If Grasso had run again, I think this would have cost him the election. John, Then we are agreeing, along with Chris' attorney that this WAS political. The ADA is going to have a hard time proving it wasn't.
Frank Bartholomew
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Excellent point John, a perfect example of how our leaders use the layers of government to obtain favorable results.
George Richardson
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Austin's unofficial motto is: "Keep Austin Weird". I think you should start a campaign to make Batavia's motto: "We Are Weirder". If someone was truly threatening you a 911 call might bring the BPD but not the Troopers, unless you knew someone and he knew someone.
Lorie Longhany
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John, maybe the Sheriff's Dept wanted no part of this for reasons other than their former employee just happens to be making the complaint.
John Roach
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Lorie, where they called first? I don't know. I don't think they were even involved.

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