District Attorney David Soares violated rules of professional conduct when he claimed an Albany County judge was providing a “get-out-of-jail free card to every criminal defendant in New York state” by barring him from prosecuting an illegal steroids ring, according to an appeals court censure.
Justices from the state Supreme Court’s Appellate Division in Rochester found Soares was “reckless and misleading” by claiming Judge Stephen Herrick’s decision to assign the case to a special prosecutor had created a “dangerous loophole” for criminals. The statement was made in a news release Soares issued to the media in November 2010, after Herrick ruled that the prosecutor’s office couldn’t try the case due to a pending civil lawsuit the steroid suspects filed against it in federal court.
“Inasmuch as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that [Soares’] statement that Judge Herrick’s determination constituted a ‘get-out-of-jail free card to every criminal defendant in New York state’ was objectively false,” the panel stated in the censure filed in early May. “For the same reasons, we conclude that his statement that Judge Herrick created a ‘dangerous loophole’ was reckless and misleading.”
In reaching the decision to censure Soares, the justices noted that he expressed remorse for his statements. But they also acknowledged his disciplinary history, including two letters of admonition for making “improper and prejudicial public statements” about pending criminal cases.
Soares charged the Florida-based Signature Pharmacy in 2007 with selling anabolic steroids to pro athletes and entertainers.
In Albany County, a 33-count criminal indictment was filed against Robert “Stan” Loomis, and Naomi Loomis, who operated the pharmacy; and Michael Loomis, a pharmacist; also charged were Kirk Calvert and Anthony Palladino, who were business managers at the company.
But the charges were dismissed twice by Herrick, who noted Soares’ conflict of interest due to federal civil suit filed against him in Florida. The defendants sued Soares for $75 million in 2008, claiming defamation and false arrest.
The civil lawsuit was ultimately dismissed. And the Appellate Division in Albany reversed Herrick’s decision, allowing Soares to present the case again to a grand jury.
Heather Orth, a spokeswoman for Soares’ office, said the prosecutor accepted the censure and acknowledged he “made a poor choice of words” in the news release.
She also noted that an appeals court in Albany was allowing the prosecution of the steroids case to advance by reversing the lower court’s decision disqualifying him.
“The good news is that he has learned a lesson on the need for tempered language regarding court rulings, while the people will have an opportunity for their case to go forward against the illegal distribution of prescription drugs,” she said in an email Thursday. “Therefore, he applauds the Appellate Division’s ruling in both Rochester on process and Albany in substance. The rule of law won out in both cases.”
Lee Kindlon, an attorney waging a Democratic primary against Soares this fall, views the censure differently. He called the censure just “the tip of an iceberg” in Soares’ office.
“This case was nothing more than a media event, set up by the district attorney who acted with reckless abandon,” he said in a statement.
Kindlon blamed Soares for spending more than $167,000 of taxpayer dollars in legal costs arising from the prosecution of the steroids ring.
He cited the case as an example of Soares’ inability to manage his office and demonstration of the prosecutor’s “lack of basic decorum.”
“This is what we get from a DA who rarely goes into a courtroom and who certainly has spent no time standing in front of a judge’s bench,” he said.