No Public Investigation of Phony 'Hate Mail' in Newton Formal Cover-Up Was Recommended Actual anonymous letter from the fictitious 'Newton Taxpayers Minuteman Association' By Ed Oliver June 14, 2002

Some of the fourteen unhappy citizens who testified on Wednesday that Mayor Cohen should make an attempt to discover who sent the hate letters that helped the Mayor in the recent election.

The political friends of Newton Mayor David Cohen decided Wednesday night there was no reason to investigate the phony "hate mail" that arrived in Newton mailboxes just before a recent election at which the Mayor's override of Proposition 2 ½ barely passed the voters.

Len Mead, president of the taxpayer group, said that the statements in the letter were clearly false.

However, a private investigation continues to move forward by the citizens. Fourteen citizens got up to speak at the three-hour public meeting on Wednesday and criticized Mayor Cohen for politically capitalizing on the incident at the time of the election in order to influence the vote. He also smeared the Newton Taxpayers Association at that time. The Mayor had a press conference right before the election to loudly condemn the hate flyer which was made to appear as though it had originated from the taxpayer group.

In so doing, the Mayor influenced the vote and spread the smear against the anti-tax group far and wide, said the critics. His message was carried widely by the Boston Globe and other media.

Now that the tax battle is over and the Mayor won, he wants to bury the incident and doesn't want people to know who sent the letter, they said.

The committee agreed to send a resolution to the Mayor requesting a formal, public statement from him on why no action to find or prosecute the perpetrators will be taken. The Mayor was absent from the meeting, but he sent a representative.

Bury It

The committee of Newton aldermen voted on the advice of City Solicitor Dan Funk to recommend "No action necessary." There is to be no investigation about the hate mail or where it originated.

Solicitor Funk's decision was made solely on technical, legal questions as to whether any criminal laws were broken. He did not consider whether it should be determined who it is who is unfairly attempting to influence Newton elections.

Related:   'Hate Mail' Sent to Newton to Damage Conservative Group?

Funk's decision as to whether any laws were broken was highly suspect as Atty. Funk himself noted.

There were astonished gasps from the audience, when Funk said it's a matter of opinion whether the "hate" letter was designed to affect the vote.

Mailgate Signs Going Up

Residents have begun to plant "Mailgate" signs around the city with a telephone number which people can call if they have information leading to the arrest and conviction of the perpetrators of the mailing. The number is 1-800-287-6060. Also, as a result of a gift, the Newton Taxpayers Association is now offering a $10,000 reward for such information. Private Investigator Jay Groob told MassNews he has some suspects, but more work needs to be done. His extensive FOIA request to city officials was largely ignored and returned little information.

Text of Mass. Law The following is the full text of Sect. 42 in Chap. 56 of Mass. Laws. No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question.

The police report says the hate flyers were sent first class mail with a stamp, not bulk mail. So there is no record of the sender. The letter was processed at the Waltham plant, which handles up to seventeen communities.

Clear Violation of Law

In remarks before the committee, Newton resident James Epstein referred to the false statements in the hate flyer as a clear violation of the statute.

Newton resident James Epstein said the hate flyer was a clear violation of the law.

"If there remains any question on what false statements to which I am referring," said Epstein, "it is the identifying of the hate flyer to have been from the Newton Taxpayers Minuteman Association and the Newton Minuteman Association. "This, along with representations and words therein such as 'our signs up all over Newton' and logos and statements were designed falsely to deceive the voter into believing they came from the main 'no-override' campaign organization, the Newton Taxpayers Association, an organization which, in fact, uses both word and symbol references to "Minuteman" as part of its identifying logo.

"Conversely, they are false statements of the existence of a no-override campaign organization named 'Newton Taxpayers Minuteman Association' with 'hate' speech attributed thereto, designed to deceive voters and affect the vote.

"Let me conclude by pointing out that in contrast to those who believe this is nothing more than 'sour grapes,' there are many who deem this as 'grand theft.' Sour grapes or grand theft, you be the judge. Someone out there planned, funded and carefully targeted these mailings. Unless there is some 'right wing' group from Idaho, which suddenly and mysteriously descended upon Newton and then suddenly disappeared, to use a popular phrase, the dots need to be connected. Unlike 'Watergate,' where Nixon would have won re-election without it, the razor thin margin in the override vote may very likely mean that 'Mailgate' tipped the balance."

Formal Cover-Up Was Recommended MassNews Staff June 14, 2002 A legal opinion from City Solicitor Dan Funk seemed to sway the committee into ignoring impassioned pleas by Newton residents to investigate.

City Solicitor Dan Funk produced gasps when he said it's a matter of opinion whether letter was designed to affect the vote.

Solicitor Funk told the committee "Unfortunately, there doesn't seem to be anything meaningful and appropriate to pursue." He said that the mayor quickly asked him and his legal department to look into whether any laws were violated in the incident. Funk said his team of seven lawyers focused on possible election law violations and essentially left the question of possible hate crimes to the police chief to investigate.

Police Chief Jose Cordero, who was appointed by the mayor earlier this year, said he checked with state and federal authorities who told him no crimes were committed by the mailing.

Funk said there were two sections of Chapter 56 of Massachusetts law that had potential applicability: Sections 41 and 42. He said they quickly saw that section 41, dealing with unsigned posters and mailings, was similar to an Ohio statute that was struck down by the Supreme Court as unconstitutional on First Amendment grounds, and it was thereby unenforceable.

Later, however, a member of the audience claimed that the Supreme Court opinion about the Ohio statute cited by Funk makes an exception if fraud is involved.

Section 42, which talks about false statements relating to candidates or questions submitted to voters, was a little more difficult to sort out, said Funk. "It's messy in terms of what it is trying to get at," he said. "It's replete with constitutional issues as well. There are cases in different jurisdictions that speak differently about this kind of law."

The pertinent part of section 42 reads: "No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question."

Funk said they first had to figure out if the law was applicable to the mailing. The determination had to be, he said, whether or not they were dealing with statements of opinion or statements of fact. Law decisions they researched go in both directions on that point, he said.

"It is a little bit difficult to get a solid handle on what's in it. Clearly, a lot of what's in the mailing speaks in terms of opinion," he said.

Before the meeting, Len Mead, president of the Newton Taxpayers Association, handed out a copy of the section 42, with arrows pointing to a reproduction of the "hate letter" below it.

Funk referred to Mead's handout, saying, "I know that the suggestion is being made by Mr. Mead's handout, with his arrows pointing to certain pieces of the mailing, that these are factual false statements. It's possible that they are." However, he said, the qualifier in the statute is that the literature must be designed to affect the vote in question.

He then made his statement which made the audience gasp that it was not clear, and a matter of opinion, whether the flier was intended to influence the election.

Funk then summarized by saying it is in question whether the statute is applicable. Assuming it is, for argument's sake, he said they would have to look at whether it is a valid, constitutional piece of legislation. Cases go both ways on this one, he said, and the most recent case declared similar language to be unconstitutional.

"So once again we have the serious question of the validity of this statute." He said it hasn't been ruled on in Massachusetts, so the best they could do was look at other jurisdictions.

Funk said he checked with the Secretary of State's office, which is in charge of elections and election laws. The Secretary basically said they don't get involved in enforcing criminal statutes. Funk said that the police chief checked with the District Attorney and the Attorney General's office and they said that no laws were violated (although the police chief said he did not specifically inquire about election law, but was concerned with civil rights/hate crimes). This left them no place to go to, according to Funk, even if he determined that a law was violated.

Funk said criminal law deals with a serious burden of proof to convince and persuade a judge of a violation where criminal penalties are going to be imposed. "You better be certain about the validity of the law you are pursuing," he lectured.

Then Funk gave his advice to the Aldermen. "My advice in this instance is that there are too many questions about the validity of this law, about its applicability, about its enforceability, and about any agency that is willing to enforce it in the state, that warrants pursuing it." While it is not definitively unenforceable, "so many questions are raised about it, that it would be my advice not to pursue it."

Funk did concede that there are some credible arguments that could be made, if there was an agency out there willing to pursue it, which has never been the case, he said.

Actual anonymous letter from the fictitious "Newton
Taxpayers Minuteman Association."