Robert Magee, staff writer, RMagee@albanylaw.edu & Steven Sharp, staff writer, SSharp@albanylaw.edu
The Dean Alexander Moot Courtroom at Albany Law School was at capacity tonight, October 6, 2008, for the first debate in the race for the Albany County District Attorney between Albany Law alumni David Soares and Roger Cusick.
The race has been tranquil on its surface. During the summer it appeared as if Mr. Soares, the incumbent, would run unopposed. Yet whispers of a challenger had been creeping through the county and on August 17 reached the tenor necessary to put Roger Cusick on the ballot as the Integrity Party nominee.1 Though the petitions which Mr. Cusick needed to put his name on the ballot where challenged,2 his name remained there. Since then, Mr. Cusick’s last-minute campaign has gained a certain amount of momentum among disaffected democrats and insatiable republicans and he’s secured both labor and police endorsements.3 Signs for both have sprouted up around the city to replace flowers retreating into winter.
If Mr. Cusick’s record in this arena lacks indicators of success in this sort of endeavor, it doesn’t lack for experience. Last summer, Cusick launched a long shot campaign against deeply entrenched Albany County Executive Michael Breslin,4 and in 2004 he ran a similar campaign against Soares.5
Had you asked anyone who might have had an opinion on the upcoming election in the fall of 2003 who they would have predicted being on the ballot for D.A. that same time the next year, a long string of interviews might not have hinted at what would actually happen. Then incumbent Albany County D.A. Paul Clyne, successor and chosen son of former DA Sol Greenberg seemed assured of being afforded an opportunity to round off 22 years as a prosecutor with a second term in the top spot.6 But David Soares, who had earned his J.D. at Albany Law School just one year before Clyne was taking the corner office in 1999,7 swept the Democratic nomination out from under Clyne’s feet and what followed was an election catalogued the entire pallet of emotion possible in an American election. There was the tragic hero in Clyne, the white knight in Soares, the Don Quixote Cusick mixed up in a county-wide mélange of disbelieving and forlorn hope that things in machine-controlled Albany County might get better, or at least interesting, which resulted in odd alliances and unforeseen results.
Some say things have been better since and others say they haven’t. Tonight those sides met and witnesses saw the race reach something of a boiling point. In a debate which was remarkable in its cogency, Albany voters were presented with two very different conceptions of how a District Attorney’s office should be run.
Roger Cusick, making the awkward argument any revolutionary conservative must make, stressed the conception of the DA as faithful servant to law and chided Soares for taking too many liberties in enforcing it. His derision of Soares pirouetted between tried and true statistics like conviction numbers and failure to prosecute statistics, and Soares’ travel to places like Florida to combat problems seemingly the province of the USDA, like steroid abuse.8 “Greater minds than mine”, Cusick said, “should work towards those changes [in the law]” Cusick said of Soares’ outspoken opposition to the Rockefeller Drug Laws.9 Mr. Cusick viewed the DA as carpenter to the county’s construction site. His job as DA would be to hammer the nails and to hammer the hard, and to leave the blueprints to whosoever it was that made blueprints.
David Soares made another argument, the awkward argument any liberal makes when seeking the job of prosecutor, that a DA should essentially “love thine enemy” and take on crime from holistic, community (perhaps read ‘criminal’) perspective. I would imagine if you caught Mr. Soares at a sentimental moment you might catch him saying, or at least agreeing to, something to the effect of: “A hug does far more than handcuffs if you catch the criminal early enough.”10 He made his case for his second term in terms of community programs and outreach as well as in terms of ‘trust-building.’
Leaving aside the debate’s inevitable accusations of impropriety, corruption and incompetence, it would useful for us to consider what the role of the district attorney as the role has played out around the country, and what that role means for a county.
New York lays out the meat and potatoes of the position thusly;
[I]t shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed . . . . He or she shall perform such additional and related duties as may be prescribed by law and directed by the board of supervisors.11
The rest of the job description deals with reporting requirements, meaning someone in Albany was suspicious of the office. Whoever this was, they weren’t alone. The office of the ‘public prosecutor’ has been chastised for lack of transparency in choosing who and what to prosecute, others claim that it over-emphasizes victory in prosecution and so encourages conduct that is an affront to the administration of justice.12 Others worry at the office’s susceptibility to partisan politics.13
But how to District Attorney act on the ground. A Google News search reveals district attorneys approaching their mandates in all sorts of ways. In New Orleans, a DA has decided not to charge the brothers of the Tulane Chapter of Pi Kappa Alpha with assault in connection with their alleged hazing ritual.14 In Georgia, the Gwinnet County DA Danny Porter argued before the Georgia Supreme Court that the states’ 1971 law making any one charged with possession of less than an ounce of marijuana automatically guilty of a misdemeanor.15 In Brooklyn, NY the DA Charles Hynes has earned praise for his criminal rehabilitation and intervention programs.16 In Fall River, DA Sam Sutter is working on a community-wide volunteer program.17
It’s difficult to draw conclusions from this, at least conclusions which could send either Soares or Cusick away as either having a better idea of how a district attorney’s office should be run. What can be drawn is the observation that the ‘public prosecutor’ reflects the values of the community and like the values of the community can often stray from both common sense and compassion. We see both in some of the grander calamities wrought by district attorney’s offices, during the Duke lacrosse fiasco, for example, or in the myriad cases of prosecutorial misconduct which appear like weeds among the criminal law year-to-year.18 What can be drawn is that when a polity elects a prosecutor, it makes a statement about its values.
The debate tonight wasn’t about two men or “slush funds”19, or even about how to fight crime since a fight must necessarily move towards a defeat and crime is not likely to be defeated, and if it is, it certainly won’t be for the efforts of someone with such limited jurisdiction and resources as a district attorney. Instead, the argument was about how Albany County wishes to deal with crime and this, in turn, was the lesson to be drawn from tonight’s debate.
1 Jordan Carleo-Evangelist, GOP Lines up Foe for Soares, Albany Times Union, Aug. 17, 2008.
2 Robert Gavin & Jordan Carleo-Evangelist, DA Candidate’s Petitions Challenged, Albany Times Union, Aug. 29, 2008.
4 Carol Demare, Republican to Challenge County Executive, Albany Times Union, Jul. 18, 2007.
5 Evangelist, supra note 1.
6 Carol Demare, Clyne Hangs Out a Shingle – and a Number, Albany Times Union, Sept. 12, 2007.
7 Albany County District Attorney, Biography of David Soares, available at http://www.albanycountyda.com/da_office/da_bio.html.
8 Robert Gavin, Silver Lining for Soares: Ex-Cop Admits Steroid Deals, Albany Times Union, Sept. 11, 2008.
9 N.Y.Penal Law art. 220 (McKinney 2000). Mr. Soares isn’t alone in his opposition to the law, which are often cited as some of the most Draconian in the nation. See Drop the Rock, http://www.droptherock.org/ (last visisted Oct. 7. 2008).
10 Though we did catch Mr. Soares offer up, in defense of his nighttime basketball program: “Better on the basketball court than the courtroom.”
11 New York County Law § 700.00(1) (McKinney 2000).
12 Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309, 1317 (2002).
13 Joseph P. Viteritti, Municipal Home Rule and the Conditions of Justifiable Secession, 23 Fordham Urb. L. Rev. 1, 46-47 (1995).
14 Gwen Filosa, Tulane Frat Members Won’t Be Charged in Hazing Incident, Times-Picayune, Oct. 7, 2008.
15 Bill Rankin, Attorney Argues Marijuana Law is Unconstitutional, Atlanta Journal-Constitution, Oct. 7, 2008.
16 Samuel Newhouse, At District Attorney’s Office, A Unique and Effective Approach to Crime, Brooklyn Daily Eagle, Oct. 3, 2008.
17 District Attorney’s Office to Hold Volunteer Fair Today, The Herald News, Sept. 24, 2008.
18 See Lyn M. Morton, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7 Geo. J. Legal Ethics 1083, 1086-87 (1994).
19 Danielle Sanzone, Conners’ Audit Slams DA Soares, Troy Record, Oct. 6, 2008.