In the midst of the coronavirus pandemic, it is easy to forget that there’s an election this year for district attorney in Albany County.

One person who most decidedly did not forget that is Matt Toporowski, who is challenging four-time incumbent District Attorney David Soares in a Democratic primary.

On Friday, Toporowski took to Twitter to criticize Soares for his prosecution of Asha Burwell, the former University at Albany student convicted of falsely reporting a hate crime aboard a CDTA bus in 2016.

Burwell, 24, had a partial victory at the Appellate Division of state Supreme Court, Third Department on Thursday. It was not a full exonerati0n, nor did it clear of Burwell spreading falsehoods -- just her right to do so on Twitter without being charged with a crime.

Toporowski still took aim at Soares, his one-time boss at the district attorney’s office.

“Should the DA be prosecuting people for tweeting? Albany's Appellate Court said no and reversed this college student's conviction. But she still had to endure/pay for a trial/appeal to get that answer. There's a bigger question about fairness and use of gov't resources here,” Toporowski tweeted.

One day earlier, the Third Department unanimously reversed one of Burwell’s two convictions for falsely reporting an incident in the third-degree, a misdemeanor. It specifically tossed Burwell’s false reporting conviction for causing a public alarm through her tweets about the incident, including one in which Burwell stated: “I just got jumped on a bus while people hit us and called us the ‘n’ word and NO ONE helped us,” as well as “I can’t believe I just experienced what it’s like to be beaten because of the color of my skin.”

Presiding Justice Elizabeth Garry and Justices Stanley Pritzker, Christine Clark, Eugene “Gus” Devine and John Colangelo upheld Burwell’s conviction for falsely reporting an incident in the third-degree for a 911 call about the incident.

Asked to respond to Toporowski’s comments, Soares’ spokeswoman Cecilia Walsh told Law Beat: “Asha Burwell made false claims that she was a victim of a racially motivated attack. She falsely reported an incident and remains convicted for her behavior. We respect the decision of the court to uphold the falsely reporting an incident charge regarding the claims made during the 911 call. While the Constitution protects your right to lie and post vile words on Twitter, it certainly doesn’t protect your right to lie to the police.”

The decision on the tweet-related count was a victory for free speech advocates and certainly one for Burwell’s lawyer, Frederick Brewington, who argued that even if the tweets were false it was irrelevant. Brewington had noted the wide range of people who use Twitter includes President Donald Trump, adding: “Indeed, if we put this standard in place, someone would have to arrest our president immediately,"

The justices said while Burwell’s tweets were false, “criminalizing her speech… was not actually necessary to prevent public alarm and inconvenience.”

The case attracted wide attention after Burwell and fellow former UAlbany students Ariel Agudio and Alexis Briggs, all of whom are black, reported that they were jumped by a group of white men and women because of their skin color. They alleged the bus driver did nothing and that passengers watched the attack — or recorded it — on cell phones.

Briggs pleaded guilty before trial. Agudio, who was convicted alongside Burwell at trial, had her appeal before the Third Department coming up before the COVID-19 pandemic struck.





