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.
