Albany

City Court Judge William Carter cannot force District Attorney David Soares to call witnesses against four Occupy Albany protesters arrested last year — and cannot hold his office in contempt if he refuses, a state judge ruled Thursday.

The 27-page decision by acting Supreme Court Justice Richard Platkin amounted to a victory for Soares, even as the judge wrote that Soares put Carter in a "difficult and troubling situation" that was avoidable.

And the ruling was a defeat for the protesters whom Soares has repeatedly declined to prosecute because the ruling did not dismiss their charges. Their lawyer, Mark Mishler, nevertheless hailed the decision and predicted the cases would be tossed.

The cases will return to Carter's court, where Soares' office refused to call witnesses or present evidence at a pre-trial hearing in May. Carter could appeal the ruling, though his attorney, James Knox, gave no indication the judge planned such a move.

"The one thing the decision doesn't answer is what has to happen next," Knox told the Times Union.

"What the judge will decide to do when it returns to the calendar, I don't know."

Soares' office declined to comment.

Platkin determined the power to present evidence clearly lies with prosecutors. If Carter is allowed to order Soares to call witnesses, he stated, Carter would take on an inappropriate supervisory role over another branch of government.

"If a district attorney must 'participate' in a suppression hearing by calling witnesses, who must be called? What questions must they be asked?" Platkin wrote. "What other evidence must the prosecutor seek to introduce? Must legal arguments be made, and, if so, which ones? Questions such as these simply are not amenable to judicial review or oversight."

Platkin wrote it was outside Carter's jurisdiction to hold Soares' office in contempt.

"An order compelling an unwilling district attorney to put on proof under threat of imprisonment seems incompatible with the proper role of the courts," he wrote.

Police accused the defendants of blocking traffic and refusing to move onto the sidewalk during a June 13, 2013 Occupy Albany march on Lark Street.

Colin Donnaruma, 33, of Voorheesville is charged with resisting arrest, a misdemeanor, and disorderly conduct, a violation similar to a traffic ticket.

Daniel Morrissey, 25, and Eric Cantine, 45, both of Albany, and Timothy Holmes, 49, of West Chazy, are charged with disorderly conduct.

Soares declined to prosecute the men much like he previously refused to prosecute more than 100 Occupy Albany protesters accused of trespassing after they camped out on parkland across the street from the state Capitol for several months in 2011. Soares has maintained the defendants are peaceful protesters exercising their First Amendment rights.

On May 23, the defendants brought a petition against Carter hoping he would dismiss their charges because Soares had elected to not prosecute. On May 24, during a scheduled pre-trial hearing in City Court, Chief Assistant District Attorney David Rossi told Carter he would call no witnesses nor present any evidence — and that his office had no intention of prosecuting the case. Carter, in turn, told Rossi he could hold him in contempt, that his office cannot simply walk away from prosecuting.

Carter adjourned the hearing until May 31. But on May 30, Soares' special counsel, Christopher Horn, filed a petition with Platkin hoping to prohibit Carter from forcing Soares to call witnesses and holding him in contempt if he refuses. The hearing was postponed.

In his decision Thursday, Platkin noted prosecutors often ask judges to dismiss cases in the interests of justice, but Soares never filed such a motion or explained his reasoning.

"Had an appropriate application been made, the burdens attendant to this inter-branch controversy likely could have been avoided," wrote Platkin, who nevertheless sided with Soares. "As a result of the highly unusual course charted by the district attorney in the Occupy cases, Judge Carter was presented with a difficult and troubling situation. He responded properly by considering all available options, including his contempt powers. However ... a trial court cannot order a district attorney to call witnesses at a suppression hearing or enforce such an order through its contempt powers."

Mishler and Manley tried to convince Platkin that Carter was exceeding his authority by not dismissing the cases once Soares declined to prosecute. Platkin instead found Carter was under no mandatory duty to dismiss the cases based on Soares' decision.

Mishler still called Platkin's ruling a victory.

"While the judge did not order that the charges be dismissed," he said, "there is no other path that this case can go on at this point."

Platkin stated that a case in which prosecutors refuse to call witnesses or present evidence may amount to "hollow ritual or worse," but it provides accountability when the case is dismissed.

"In adopting a balanced system that leaves district attorneys without the power to dismiss pending cases and courts without the power to compel district attorneys to prosecute them, the framers necessarily left open the prospect of inter-branch stalemates, where 'the actions of one branch may be brought to nought by the actions or inactions of another," Platkin wrote. "Fortunately, in the 192 years that have passed since the Legislature divested prosecutors of the unilateral authority to discontinue criminal cases, disputes such as this one remain relatively rare."

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