Read our first story about questions regarding the Justice Center’s jurisdiction here.
ALBANY — A legal brief filed by Attorney General Eric Schneiderman in the local case of a teacher accused of raping a student questions the constitutionality of how the Justice Center for the Protection of People with Special Needs prosecutes criminal cases.
At issue is whether or not state lawmakers have the authority to give an unelected person or entity the power to bring criminal charges as they did in 2012 with the creation of the Justice Center. The state Constitution, according to the AG, only gives such powers to the elected district attorney in each of the state’s 62 counties and the attorney general.
The only way the Justice Center has the authority to prosecute cases, according to the brief written by Senior Assistant Solicitor General Andrew Amend, is with the DA’s explicit permission and if the DAmaintains responsibility for the case.
The Justice Center, in accordance with the state law that created the agency, does not get the DA’s permission. Rather, it works “concurrently” and has an equal standing as local law enforcement.
“The Justice Center works in cooperation with local law enforcement agencies and district attorneys to bring charges against individuals accused of abuse or neglect involving criminal conduct,” said Justice Center Spokeswoman Dianne Ward. “As part of this collaboration, the local district attorney is informed of every case of abuse and neglect received by the Justice Center in his or her jurisdiction.”
Simply informing a DA, though, is not enough, according to the 27-page brief written by Amend and filed on Thursday, Dec. 22, in the case against former LaSalle School teacher Mariana Viviani.
“The Justice Center Special Prosecutors are currently operating like a private prosecution service without any oversight,” said Viviani’s attorney, Michael Pollok. “Under their enabling legislation, these unelected prosecutors can charge any person in the state with any sex offense and several other types of crimes. Since the special prosecutor and deputy special prosecutors employed by the Justice Center are merely appointed, they are not accountable to the people, unlike the county prosecutors and attorney general, who must stand for election every four years.”
Amend recommends Judge Thomas Breslin ask Albany County DA David Soares about the extent of his office’s involvement in the case against Vivani.
According to the brief, Albany County Assistant District Attorney Shannon Sarfoh did “agree” to the Justice Center taking the case, but simply agreeing is not enough.
“The problem with this response is that it does not clearly establish whether the DA’s representative understood themselves to be authorizing prosecution by the Special Prosecutor on behalf of the District Attorney – as necessary to satisfy the Constitution,” according to the brief.
The ambiguity arises because the Justice Center said it would pursue charges as an “independent authority” and it does not clearly state the DA authorized the Justice Center to do so, according to the brief. It also does not say the DA would take responsibility for the case, as required under the state Constitution.
“That requirement cannot not be met unless the DA in fact ‘delegated’ his authority to the special prosecutor and consented to the special prosecutor’s appearance on his behalf,” according to the brief. “Consequently, additional record development is necessary to clarify the Albany County District Attorney’s position on this prosecution and permit a correct determination of Viviani’s Constitutional challenge.”
A spokeswoman for Soares, Cecelia Walsh, previously said the Justice Center did notify the DA’s office of its desire to prosecute Viviani, but the office did not give explicit consent because it is not required to under the current state law.
Special prosecutors are often appointed by a judge when the DA is conflicted out of a case, but that scenario is case specific and does not give the special prosecutor unilateral power over a special class of people or a specific body of law.
“Simply put, the Justice Center’s authority to prosecute crimes against some the most vulnerable citizens in our society has been tested and upheld by the court, as recently as this year,” said a spokesman for the Justice Center, William Reynolds. “Further, the manner in which the Justice Center exercises its authority is consistent with existing law, because we coordinate prosecutions with local district attorneys.”
He said the Justice Center consulted with the Albany County DA in the Viviani case prior to bringing charges, and that DA did consent to the Justice Center’s Special Prosecutor bringing charges.
The Criminal Case
The Justice Center charged the 30-year-old Viviani in September for raping a 17-year-old who was at the LaSalle School. There is some question as to whether the accuser was still a student, and he apparently recanted a number of his initial statements while being interviewed by an investigator hired by Pollok.
The LaSalle School — located at 391 Western Ave. and not associated with the better known LaSalle Institute in Troy — is certified by the state Office of Children and Family Services, and serves youths who have been in trouble with the law. It falls under Justice Center jurisdiction because the 2012 state law allows it to investigate any complaints made at state sanctioned, certified or licensed facility.
Viviani is charged with rape and other crimes, but Pollok claims they are based on evidence and testimony fabricated by the accuser with the purpose of extorting money from her.
The constitutional issue is attached to Viviani’s criminal charges, and if those charges are dismissed the constitutional challenges won’t be heard by any court until it is brought up as part of another case.
Similarly, it was attached to the case of a Finger Lakes Residential Center employee accused of assaulting a 14-year-old boy.
The attorney for Martesha Davidson failed to object to the constitutional issues at the lower court, so the Court of Appeals, the state’s highest court, refused to address the matter on technical grounds. In a strongly worded dissenting opinion, however, Justice Jenny Rivera strongly said the governor and legislature do not have the authority to appoint a special prosecutor to handle a specific class of cases.
Her opinion was cited extensively by Amend and Pollok.
That case is due back in front of Breslin on Jan. 3, 2017. Breslin could either hear arguments and rule himself, agree with Pollok and dismiss the charges, agree with the Justice Center and continue with the case or kick the case up to a higher court.
SCHNEIDERMAN and CUOMO
Schneiderman is taking a like stand against a plan by Gov. Andrew Cuomo to create a special prosecutor, appointed by the governor, charged with policing the procurement practices of state agencies.
“The Constitution vests prosecutorial authority exclusively in the Attorney General and county district attorneys,” Schneiderman wrote in a letter sent to the governor and legislative leaders on Wednesday, Dec. 21.
He also cited Rivera’s opinion, which states the appointment of a non-elected special prosecutor would be unconstitutional. “The same concerns would apply to a special prosecutor for procurement,” he concluded.
Sen. Neil Breslin, D-Albany, said he is not in favor of having politically appointed special prosecutors.
“If there are special prosecutors, they shouldn’t be under the control of the agencies who are appointing them,” he said.
Rivera, in her Court of Appeals decision, said a prosecutor should be answerable to the people through an election because of the “awesome power” the state has to bring criminal charges. The mere allegations, she wrote, could devastate a person’s life and therefore should be outside of the political realm.
“A person’s reputation can be ruined, employment terminated and finances placed in jeopardy, regardless of whether that person is later acquitted or the charges dropped,” she wrote. “Under our constitution and case law, the awesome power of unchecked prosecutorial authority requires oversight and cannot be held by an unelected official.”