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DA Can’t Be Compelled to Prosecute Occupy Crew

ALBANY, N.Y. (CN) - Judges cannot compel district attorneys to prosecute cases, especially under the threat of contempt, a New York appeals court ruled.

The "interbranch controversy," as an earlier ruling described it, arose from Albany protests in fall 2011 that mirrored nationwide demonstrations over income inequality sparked by Occupy Wall Street.

Albany County District Attorney David Soares made headlines late that year after saying he would not prosecute peaceful protesters arrested on minor charges such as trespass or curfew violation. As a result, scores of cases were dismissed in Albany City Court.

That changed following an Occupy Albany march in June 2012 that clogged a city street and led to the arrest of four protesters on charges of disorderly conduct. One of the four also was charged with resisting arrest.

Their cases went before City Judge William Carter, who denied the protesters' motion to dismiss and refused to accept Soares' position not to prosecute them.

The stalemate continued until a May 2013 suppression hearing at which the DA's office indicated it planned to neither call witnesses nor present any evidence. Carter then warned that simply appearing at the hearing did not fulfill the DA's obligation, and that "willful refusal to participate" could result in a finding of contempt.

This led the DA's office to seek a writ of prohibition from the Albany County Supreme Court. Separately, the four Occupy Albany protesters also filed an Article 78 petition seeking to have Judge Carter dismiss their cases.

In July, Acting Supreme Court Justice Richard Platkin dismissed the protesters' petition but agreed to block Judge Carter from requiring prosecution of the cases.

"A trial court cannot order a district attorney to call witnesses at a suppression hearing or enforce such an order through its contempt powers," Platkin wrote.

"There simply are no judicially enforceable standards governing the exercise of these highly, if not wholly, discretionary functions," he added. "Accordingly, they are matters committed to the judgment of responsible executive branch officials, not the courts."

Affirming Thursday, the Appellate Division's Third Judicial Department found that DAs, as elected officials, have broad discretion in deciding how to proceed at trial.

And since no provision in New York criminal procedure law requires a DA to call witnesses or present evidence in a case, a judge "cannot mandate such action under threat of contempt."

Carter failed to show that Platkin's ruling was erroneous since he never explicitly threatened contempt, according to the ruling.

"While respondent [Carter] did not make such a direct statement in one sentence, review of the record supports Supreme Court's determination," Justice John Lahtinen wrote for the four-judge panel. A verbal exchange between Carter and the DA's office at the May suppression hearing included words that "suggest that petitioner [Soares] would be held in contempt if he did not call witnesses."

The panel also rejected Carter's argument that Platkin erred in issuing a judgment that prohibited him from exercising contempt powers.

"Supreme Court's judgment is not so sweeping," Lahtinen wrote, saying the ruling "merely prohibited" Carter from requiring the DA to call witnesses or present evidence against the four protesters.

"Supreme Court's judgment does not directly diminish respondent's contempt power nor does it purport to circumscribe whatever power respondent may have to require compliance with the governing statute," he added.

Here the underlying ruling is prohibiting "a simple, narrow, potentially ultra vires action," according to the ruling.

Carter had argued he was trying to resolve the cases against the four protesters in a manner consistent with criminal procedure law: that the DA faithfully prosecute the cases or move for their dismissal in the interest of justice.

Platkin, in his ruling, called the tact taken by the DA a "highly unusual course" in which the city judge "was presented with a difficult and troubling situation."

The appellate panel seemed less sympathetic, with Lahtinen writing: "Disposition of these cases should not be as complicated or time-consuming as they have become."

After discussing various avenues the DA could have taken to end prosecution of the cases - including filing formal motions to dismiss - Lahtinen wrote: "We need not belabor the point any further. Where a district attorney decides not to pursue a pending case and it is not one of the rare instances where the defendant objects, or even rarer occurrences where bad faith is implicated, then avenues exist under the [criminal procedure law] for dismissal - some of which are more respectful than others of the taxpayers who are funding the judiciary and the prosecutor (as well as often the defense via assignment.)"

Justices Leslie Stein, William McCarthy and Elizabeth Garry joined Lahtinen's opinion.

Carter's attorney, James Knox of E. Stewart Jones in Troy, told the Albany Times Union about plans for an appeal to New York's highest court, the Court of Appeals, because the issue remained whether declining to prosecute can resolve a case.

Christopher Horn of the DA's office represented Soares. Albany attorney Mark Mishler and Kathy Manley of Kindlon Shanks & Associates in Albany appeared for the four Occupy Albany protesters.

Nassau County DA Kathleen Rice represented the New York State District Attorneys Association, which submitted an amicus curiae brief.

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