Let me start by reminding readers of the famous phrase of former New York State Chief Judge Sol Wachtler immortalized in Tom Wolf’s novel Bonfire of the Vanities where Wolf quotes Wachtler saying that “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.”

Wachtler coined the phrase in a 1985 interview with the New York Daily News and a month later it was noted in the New York Times that Wachtler believed that grand juries “operate more often as the prosecutor’s pawn than a citizen’s shield.”  Could that be true?  In the race to build up their resumes, would prosecutors actually trample the rights of citizens to get a conviction in a case that lacks sufficient evidence?  We may have the best legal system in the world but it is far from perfect.  Mistakes are made and innocent people are convicted every day, some even sent to death row.

I’m not going to suggest a political motive in the case of Frank Parlato, but it is fair to comment on his indictment in a case where there is a great deal of exculpatory evidence suggesting he’s not guilty of any crimes.  Former New York State Attorney General Dennis Vacco and former U. S. Magistrate Carol Heckman, working as lawyers for Parlato, met with federal prosecutors controlling the grand jury presentment numerous times and basically urged them to consider voluminous evidence they said pointed to Parlato’s innocence.  In an almost unprecedented way, Parlato’s attorneys opened the books for the government to see, exposing their entire defense in an effort to discourage prosecution on the merits.

Heckman, the highly regarded former magistrate, said her legal team “uncovered new evidence that exonerated Parlato,” and asked the prosecutors not to return an indictment in the four-year-old case.  Another Parlato lawyer, Ralph Lorigo, said “we presented information to the United States attorney to show that no crime has been done.”  Lorigo said later that he was “very taken aback” by what he read in the 19-count corruption indictment “after we had provided so much information on so many topics.”

However, as events unfolded we now know that the legal arguments and full disclosure of exculpatory evidence fell on deaf ears and the grand jury returned the indictment on Nov. 20 that prosecutors had been seeking—and had invested considerable time and money on–in a case where Parlato had refused to accept any plea agreement because it was his contention all his actions were legal and that he was innocent of any criminal wrongdoing.

Parlato’s lawyers have consistently maintained that prosecutors kept shifting their theories in the case over the years to support their goal of an indictment, and there’s a basis for that contention in the true context of the “whack a mole” quote used in the Gazette story—attributed to an unnamed lawyer—to describe the probe into Parlato’s business dealings, suggesting, out of context, something sneaky and sinister.

Let me explain the true origin of the whack a mole quote.  Parlato attorneys Heckman and Brian Feldman wrote a letter to prosecutors, citing the lack of action by prosecutors on new exculpatory evidence and their focus instead on whether Parlato was willing to accept a plea deal.  Here is an excerpt from that Nov. 10 letter:

“In response to defense counsel establishing that previously identified allegations lacked merit, the Government has repeatedly changed the investigation’s focus and theories.  The whack-a-mole approach of changing its prosecution theories has left us entirely uncertain of what mistaken assumptions [of the Government’s] require our further attention.  The government has not welcomed counsel’s corrections of its various errors but, instead, has responded with actions that chill defense counsel’s work in presenting additional exculpatory evidence to the prosecution.”  The indictment was returned 10 days after that letter, a clear confirmation that defense counsel’s assertion that its work in presenting evidence that supported Parlato’s innocence had been in vain.

All of Parlato’s bank accounts referred to in the indictment had his Social Security number and address, and were set up according to Parlato to protect assets against a litigious minority partner in the One Niagara welcome center project.  The minority partner, Sam Shmueli, has filed more than a dozen civil lawsuits against Parlato and the enterprise seeking judgments and lost every one of them.

In brief, in his defense, Parlato never spent the $1 million payment he received from the NXIVM cult for recovering property for them worth more than $26 million in Los Angeles eight years ago, and the cult’s claim for repayment has been treated as a civil matter.  It was reported on his tax returns as a loan pending civil resolution.  Parlato’s business partner at One Niagara, Larry Reger, has died but his attorney has filed a letter with prosecutors insisting that Reger had no complaints against his partner and was not owed any money.  The lawyer that purchased the now thriving welcome center known as One Niagara that Parlato brought to life from the hole-in-the-ground, vacant Occidental Building firmly supports Parlato’s contention that he’s guilty of nothing except trying to protect his property from Shmueli’s legal actions.

Readers should be reminded that one of the most sacred principles in the American legal system holds that a defendant is innocent until proven guilty.  The government has filed a charge against him and Parlato and his associate stand ready to fight that accusation and prove that the government’s shifting theories will not survive that justice system.