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Bennett L. Gershman

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Prosecuting or Persecuting Working Families Party?

Posted: 03/12/2013 8:51 am

The Working Families Party (WFP) has pummeled New York City's Republican-conservative minions hard, and they're being counter-attacked with sucker-punches. The liberal WFP, created 15 years ago, has become an increasingly influential force in city politics, attracting more than 250,000 votes on its ballot line in last November's elections. But it was the 2009 City Council race on Staten Island that inflamed some of its enemies, and precipitated investigations and lawsuits.

The U.S. Attorney's Office in New York investigated allegations of election violations in the 2009 elections and closed the case finding no evidence of wrongdoing. The city's Campaign Finance Board investigated allegations of election fraud by candidates whom WFP supported in the 2009 elections and found no evidence of wrongdoing. A crony of former mayor Rudolph Giuliani sued WFP over an alleged dark conspiracy with an outside funding group; the case was settled.

And now a new bloodhound has been hired to re-investigate and recycle the detritus of these earlier misbegotten offensives to try to find something, anything, to pin on WFP. This latest example of a misguided prosecution appears to be the investigation by a special prosecutor again into the 2009 Staten Island City Council elections in which five candidates won owing largely to WFP support.

Some facts are clear, others are murky. The Staten Island District Attorney, Daniel Donovan, apparently looked into allegations of election violations in the 2009 races and in February, 2010 asked Deputy Administrative Judge Fern Fisher to be removed from "a 2009 City Council election on Staten Island" (sic) and to have a special prosecutor appointed to replace him. Donovan's application was made in secret; it remains sealed today. In fact, there is no public record of why he made the request, the specific subject matter that his request related to, and the scope of the investigation covered by his request. Donovan's request was peculiar for another reason; he brought it not to a court in his county, as required by § 701 of New York State's County Law, but to a judge sitting outside the county.

Adding to the confusion, Judge Fisher waited two years before appointing a special prosecutor, Roger Bennett Adler, a private lawyer in Brooklyn with virtually no prosecutorial experience but who is connected politically to conservative operatives. Judge Fisher's order bears an index number, but there are no records in New York State Court's filing system with this index number. Also, the order appoints Adler to "a 2009 City Council election on Staten Island," but there were five elections. Which election was Adler appointed to investigate?

Adler apparently did nothing for a year. Then, last month, as the November 2013 elections are heating up, he served scatter-shot grand jury subpoenas on the WFP, its officers, the advocacy group Citizen Action of New York, and many of its employees. The subpoenas requested a cornucopia of documents and other materials -- canceled checks, money wires, board minutes, emails, party rules, rent bills, correspondence, notes, memoranda, rental and lease agreements, payroll records, tax returns -- some of which appear to be totally unrelated to any of the 2009 elections. To make matters worse, Adler issued the grand jury subpoenas even though no Staten Island grand jury was sitting, a fairly obvious abuse of legal process.

There is a motion pending in the appellate division by lawyers for the WFP and the individuals identified by Adler to quash the subpoenas. In making its decision, the court surely will be aware of the unmistakable odor that Adler's investigation is being driven by raw politics, and what looks very much like a witch-hunt by right-wing politicos against a liberal party that has grown in size and influence. Why Donovan removed himself from the investigation is a critical issue, as well as why he chose to do it in such a highly irregular manner.

Motions to have a special prosecutor appointed to replace an elected District Attorney are hardly routine; indeed, courts in New York often deny such motions unless there is a compelling reason to replace a sitting District Attorney, and a clear showing that the District Attorney is incapable of performing his functions because of an irreparable conflict of interest. As the New York Court of Appeals observed:

"courts should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence. The appearance of impropriety, standing alone, might not be grounds for disqualification."

There are obvious reasons why the appointment of a special prosecutor should be exercised with extreme care, and judges should be skeptical of making such appointments. First, the duty of an elected prosecutor to investigate crimes in his or her jurisdiction is a critical ingredient of the democratic process, and should not be suspended except for the most compelling reasons. Second, a judicial determination to remove an elected prosecutor and appoint a non-elected replacement politicizes the role of the prosecutor and undermines public confidence in the fair and impartial operation of the criminal justice system.

Then, of course, are the questions of why someone with so little prosecutorial experience was appointed to lead an investigation of a high-profile matter that was investigated several times and seemed closed and buried, and after the sitting District Attorney made a secret request to be removed. Also, it is difficult to square Adler's misuse of the grand jury and grand jury subpoenas with proper standards of prosecutorial practice.

Politically-driven prosecutors can be dangerous people. They have the power to go after persons or groups they don't like. And they have an array of powerful legal weapons to use in their hunt. This sordid case does not inspire much confidence in the operation of the criminal justice system in New York City, or of some of the key people in that system.

 
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