Don’t Tell Me Who to Prosecute, DA Tells Judge

     ALBANY, N.Y. (CN) – An Albany city judge cannot force the district attorney to prosecute Occupy Albany protesters, the DA says in a lawsuit challenging the judge’s threat to hold him in contempt of court.
     Albany County District Attorney P. David Soares sued Albany City Court Judge William Carter in Albany County Supreme Court. He claims Judge Carter violated principles of separation of powers by ordering the DA’s office to call witnesses at a pre-trial hearing under the threat of contempt.
     “No statute gives him this power over a duly elected district attorney’s exercise of discretion over how to prosecute or not prosecute a case,” Soares says in an Article 78 petition seeking a writ of prohibition.
     Soares made headlines in late 2011 when he declined to prosecute protesters who took over downtown parks as part of Occupy Albany, in nationwide protests against economic disparity, which began as Occupy Wall Street.
     Soares said that as long as the Albany protesters were peaceful, his office would not prosecute them.
     Scores who were arrested on minor charges such as trespass or curfew violations saw their cases dismissed in City Court because the DA’s office failed to bring a case, the Albany Times Union reported.
     That changed in the summer of 2012, when an Occupy Albany march clogged a downtown street and four protesters were charged with disorderly conduct. The four, Colin Donnaruma, Daniel Morrissey, Eric Cantine and Timothy Holmes, also are named as respondents in the Article 78 petition. So is the city of Albany.
     The four cases were put on the calendar of a different City Court judge, Carter, who denied the protesters’ motion to dismiss and refused to accept a letter from Soares’ office that said it would not prosecute the cases.
     The DA sent two more letters in the succeeding months, and the protesters’ attorneys continued to file motions to dismiss.
     Carter continued to reject them, and in a decision released this year called Soares’ position “a legal nullity” because he failed to file a formal motion to decline to prosecute.
     A suppression hearing was held May 24, at which the DA’s office appeared and “indicated, as they had before, that they were not calling any witnesses,” according to the Article 78 petition.
     Judge Carter and David Rossi, chief assistant district attorney, then sparred in court, Carter contending the DA’s office was not fulfilling its obligations.
     Rossi disagreed, saying the prosecution was present but would “not be going forward and meeting our burden.”
     Judge Carter said he was “limited in what I can do,” but could hold Rossi in contempt.
     “I have no desire to do that,” Carter added, according to the complaint.
     Here is an excerpt from the transcript, as cited in the complaint, which uses asterisks instead of ellipses:
     “MR. ROSSI: Your Honor, the District Attorney has made a decision to decline prosecution in this matter. We haven’t opposed any of the defense motions. We don’t plan to oppose their motions. And to the extent that we are required to be in court, and appear on the matter, we’ll do that, but we’ll not be going forward and meeting our burden.
     “THE COURT: Well, I do understand what you’re saying with regard to your burden. You do have the burden of production. But, I actually need to make sure that you understand your duties and obligations with regard to this hearing. And simply appearing does not fulfill your obligations.
     “* * *
     “And later,
     “MR. ROSSI: Your Honor, I don’t believe I am ignoring any order of the Court.
     “THE COURT: You certainly are. You are not calling witnesses.
     “MR. ROSSI: * * * I don’t believe we are defying a lawful order of the court. We are here. We’ll be present in court. But, I don’t believe it is the court’s — up to the court to decide what proof the People will present and what proof the People won’t present or what witnesses they will call or what witnesses they won’t call.
     “THE COURT: I would agree with you. And that is not what I am doing. You are refusing to go forward. If you told me that you didn’t have a particular witness, if you needed an adjournment, a continuance, anything of that nature, I would be more than happy to accommodate you, but by your willfully refusing to participate, that’s not something that the court can allow to happen today or in the future. I will not allow that precedent to be set.
     “MR. ROSSI: I understand the Court’s position, your Honor. Our position remains the same.
     “THE COURT: If that is your position, are you also aware that you are limiting my options?
     “MR. ROSSI: I don’t believe I am, your Honor. But, I guess, that’s your decision to make.
     “THE COURT: Well, you may not believe it, but if I gave you some time to research the issue, you may find that I am limited in what I can do. However, one of the things that I could do is to hold you in contempt. I have no desire to do that. I would really like you to spend some time going over my decision, going over the law that’s in it, and we can revisit this at another date.
     “and finally,
     “MR. ROSSI: I understand, your Honor. Our position is that it would be very simple for the Court to grant the defense motion. And then this case would end. We haven’t met our burden. We haven’t opposed any of the motions being made. It seems quite simple, to us, that the motions should be granted. There is no evidence for the People to proceed with. And the case should be dismissed or trial should be scheduled. And we’ll proceed from there. But we haven’t met our burden at the suppression hearing and we don’t plan to.” (Citations to transcript omitted.)
     The complaint continues: “It is clear from the above excerpts and from the remainder of the 13-page transcript of the proceedings that Respondent Carter sought to order the People to call witnesses at the hearing when there is not statutory or constitutional basis for him to do so. In so doing o, he exceeded his authority and further threatened to act in excess of his authority by holding the prosecutor in contempt.”
     A writ of prohibition is available under Article 78 “to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction,” according to the complaint.
     “To warrant the extraordinary remedy of prohibition, it is not enough that the court make a mere legal error; rather, the court’s error must implicate the court’s very powers and thereby give the petitioner a clear legal right to relief,” the petition states.
     “Because Respondent Carter’s action vests the discretion and power to choose whether to call witnesses at a hearing in the court rather than in the executive, the action implicates the court’s very power and the petitioner has a clear right to relief.”
     The petition calls the writ of prohibition “both necessary and appropriate.”
     “Respondent Carter has created a rule that a trial judge, not the district attorney, determines whether or not the district attorney will call witnesses in a case,” the complaint states. “This is a perversion of the criminal justice system and constitutes an abuse of the entire process.”
     Soares asks for a stay to keep Carter from ordering the DA’s office to proceed with the case until a decision is made on the Article 78 petition.
     Christopher Horn, special counsel to Soares, represented the District Attorney’s office.

%d bloggers like this: