DA Soares, judge face off in court over Occupy cases

Posted at: 06/28/2013 5:26 PM
Updated at: 06/28/2013 6:23 PM
By: Abigail Bleck

ALBANY - Almost exactly one year ago, police officers arrested four Occupy Albany demonstrators during a rally on Lark Street.  Yet those four defendants' fate wasn't, technically, what was being decided in court Friday.  At odds were an Albany City Court judge and the Albany County district attorney who is refusing to prosecute the cases.

"They had the good fortune to have an elected DA with a commitment to protecting First Amendment rights and who decided not to prosecute these criminal cases," lauded Occupy attorney Mark Mishler during Friday's hearing in front of Justice Richard Platkin.

Judge William Carter disagrees and is threatening to hold David Soares in contempt.  Carter's attorney maintained that the law gives the district attorney the authority and the duty to prosecute.

"The DA doesn't have the power to simply walk away, whether it be an indictment or another accusatory instrument," argued lawyer James Knox, who also noted that plea agreements were, at one point, being discussed for the four arrests.

Carter's stance is also that a sudden unreadiness to move forward is not a legally sound position.

"It doesn't change the substance of what they are attempting to do, which is file a letter saying we don't want to prosecute defendants x, y, z," added Knox.

An Assistant district attorney, representing Soares, countered that it's legally dangerous for a judge to dictate a prosecution.

"If we're not being ordered to call witnesses, then I don't know what order we are disobeying (or) what we've been threatened with contempt for," said Christopher Horn, with the Albany County District Attorney's Office.

After the arrests, Soares made no secret that he had no intention of prosecuting the Occupy cases and was still handily re-elected, which would indicate Albany County voters agreed with his position.

Justice Platkin will issue a decision in the next two to three weeks.