NY Court of Appeals Considers Whether a Judge Can Disqualify a Prosecutor

10/17/12

On Tuesday, the question of whether a judge has the authority to disqualify a prosecutor came up for consideration before the New York State Court of Appeals. Though a decision on the issue is expected later this year, what transpired during the oral arguments is interesting and revealing enough to make news.


The conflict started in 2007, when in a criminal prosecution in New York against the operators of a pharmacy in Orlando, Florida (with a role in a steroid distribution ring spanning the entire length and breadth of USA); Albany District Attorney David Soares compared the pharmacy operators to Tony Montana, the cocaine kingpin in the film “Scarface.”

The pharmacy operators filed a federal civil lawsuit against Soares claiming the comparison harmed their business. The 11th Circuit Court of Appeals dismissed the federal claims but allowed the claims to proceed under Florida law. A trial in that case would be held in February.

Finding a conflict of interest with regard to the pending case, in 2010, Albany County Court Judge Stephen Herrick disqualified the office of the Albany District Attorney from handling the New York steroid distribution case. Though the decision of the judge was not subject to appeal, the office of the Albany District Attorney filed a petition under Article 78 to an appeals court asking the order to be vacated.

During the oral arguments on Tuesday, Christopher Horn, representing the Albany DA's office said, “The question here is whether the judicial branch can reach into another branch, remove a constitutional officer and replace that officer with an attorney of its own choosing.”

In reply, James Knox, arguing for the pharmacy distributors told the court that effectively the Albany DA's office is “asking you to eliminate ... a check that exists to balance the power of the executive branch.”

When judge Eugene Pigott asked the Horn whether a DA could be disqualified if his brother-in-law was a mass murderer, Horn said the prosecutor could recuse himself, but “the statutory authority doesn't exist” for a judge to disqualify him.

A decision is expected from the Court of Appeals within the year.

The case is David Soares v. Judge Stephen Herrick, New York State Court of Appeals, No. 198.