COURT DISCIPLINES DA

Appeals panel censures Soares, saying remarks about judge "reckless"

ROBERT GAVIN
Section: Main,  Page: A1

Date: Friday, May 25, 2012

ALBANY -- A state appeals court has censured Albany County District Attorney David Soares for making "reckless and misleading" remarks about an Albany judge who assigned his office's high-profile steroids case to a special prosecutor in 2010.


The public discipline, meted out by a Rochester-based appellate panel, marks the third time Soares has been reprimanded for making statements on pending cases.


Soares criticized Albany County Judge Stephen Herrick of creating what the DA called a "get-out-of-jail-free card for every criminal defendant in New York state" as well as a "dangerous loophole." Herrick's decision on Nov. 15, 2010 removed the steroids case from Soares' office after defendants sued the district attorney in a federal court in Florida. Soares' remarks, issued the same day, violated rules of professional conduct "prejudicial to the administration of justice," the Appellate Division of state Supreme Court for the Rochester-based Fourth Department concluded in its reprimand issued earlier this month.


"In as much as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that (Soares') statement that Judge Herrick's determination constituted a 'get-out-of-jail-free card for every criminal defendant in New York state' was objectively false," the decision stated. "For the same reasons we conclude that his statement that Judge Herrick created a 'dangerous loophole' was reckless and misleading."


The censure comes as Soares faces a re-election fight against fellow Democrat Lee Kindlon, who quickly seized on the news to criticize Soares. The primary election is likely to decide who is the next DA in heavily Democratic Albany County.


Herrick tossed a 33-count indictment against five operators of Signature Compounding Pharmacy in Orlando, Fla. The judge ruled the defendants' federal civil lawsuit against Soares' office created a "conflict of interest" that merited removing Albany County prosecutors from the case.


Herrick, in turn, assigned the case to Saratoga County District Attorney James Murphy III as a special prosecutor. Herrick later assigned the case to William Fanciullo, a private attorney and former federal prosecutor, after Murphy declined to take it on.


Herrick's decision would be reversed in a 3-2 ruling by the Appellate Division based in Albany. It found it would "establish a dangerous precedent" if defendants could disqualify prosecutors by suing them and claiming the prosecutor has a conflict of interest.


Legal experts say Soares' criticism of Herrick is akin to punishments coaches in professional football receive for criticizing referees: It is not allowed.


Soares' news release stated: "Judge Herrick's decision is a get-out-of-jail-free card for every criminal defendant in New York state." Soares went on to say: "His message is: 'If your DA is being too tough on you, sue him and you can get a new one.' The court's decision undermines the criminal justice system and the DA's who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick's decision and to close this dangerous loophole that he created."


The censure, a form of public discipline for attorneys, follows two earlier admonishments that Soares received for making "improper and prejudicial public statements regarding pending criminal matters," the appeals court noted.


The complaint against Soares originated within the Third Department, which covers Albany, but was transferred to the Fourth Department in May 2011. The reason for the transfer was not stated, though the present chief attorney for the Third Department's Office of Professional Standards is Peter Torncello, a former assistant district attorney who was fired by Soares shortly after Soares became DA in 2005.


In its decision, the midlevel court noted that Soares apologized for the remarks and informed the court he has instituted new policies in his office for "review of statements prior to their release to the public."


Soares' office, in response to the censure, issued a news release stating: "District Attorney Soares respects and accepts the Rochester court's decision, for he made a poor choice of words. The district attorney promised the citizens of Albany County that he would stop the pipeline of illegal prescription drugs into our community and, as such, will continue to prosecute all illegal drug distributors. On the underlying case, he is pleased that the Appellate Division in Albany has agreed to let the case go forward, reversing the decision that disqualified the office from prosecuting this case."


Soares added: "The good news is that (Soares) has learned his lesson for tempered language regarding court rulings, while the people will have an opportunity for their case to go forward against the illegal distribution of prescription drugs. Therefore, he applauds the Appellate Division's ruling in both Rochester on the process and Albany in substance. The rule of law won out in both cases."


The case began with a February 2007 raid of Signature Compounding Pharmacy, whose operators were indicted in Albany on allegations they took part in a nationwide drug distribution network that police said sold thousands of illicit prescriptions for steroids and other controlled substances.


In November, the 11th Circuit Court of Appeals in Atlanta overturned a district court judge's decision that had put the pharmacy operators' civil claims against Soares on track for a trial in Orlando. The appeals court said no evidence supported the pharmacy operators' claims of constitutional violations, including conspiracy and unlawful arrest.


The steroids case has led to 17 convictions. The remaining case is against Naomi Loomis; her husband, Robert "Stan" Loomis; his brother, Kenneth Michael Loomis; Kirk Calvert; and Anthony Palladino.


It is with Soares' office pending an appeal.


rgavin@timesunion.com - 518-434-2403 - @RobertGavinTU





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