By SHIRLEY PULAWSKI
OBSERVER Staff Writer
District Attorney David Foley described the failure to appear in court by the key witness - the accuser - in the trial of former corrections officer William Prost as "frustrating."
"Our obligation is to prove our case beyond a reasonable doubt," Foley explained. "Our proof is gone with her failure to show. We don't have a case without her," he said.
On May 1, Prost was charged with third-degree assault and criminal obstruction of breathing. It was alleged he struck his live-in girlfriend in the face and covered her mouth and nose with his hand, preventing her from breathing.
He retired from Lakeview Shock Incarceration Facility on May 29 following the incident. A trial was eventually scheduled for Nov. 6 when the charges were dismissed.
Criminal obstruction of breathing, Foley said, is a new charge in the assault section of state law. It is a misdemeanor unless the victim loses consciousness, in which case the charge becomes a felony. "You have to prove that this guy obstructed her breathing to the point of intention of obstruct breathing. The only evidence we have of that is her statement. Without her presence, her statement (given to police) is hearsay, which is not admissible as proof of guilt," he explained.
At the start of the trial on Tuesday, Judge Lydia Romer asked, "Are the People ready?"
Assistant District Attorney Greg Drab replied, "Your honor, the People (of the State of New York) are not ready at this time. The people are missing a material witness this morning," and explained the witness was served a subpoena by state police on Oct. 9. "Without this material witness your honor, the People will not be able to prove this case beyond a reasonable doubt," he said to the judge, and asked for an adjournment to allow time to secure the witness.
Romer asked Drab if he could prosecute the case based on testimony of state troopers and photographic evidence. "I can't," Drab replied, and Foley concurred because the police officers who answered the call did not witness the alleged attack.
"All we can do with the police officer's testimony is corroborate that she was at a place at a date and a time. We don't have anything else without her testimony." Foley explained the prosecutor's office doesn't represent the victim but represents the people of the state, and presents evidence provided by the victim. "The burden is high," he said.
If the accuser testified regarding the alleged incident, Foley said the trooper's statements could corroborate her testimony. "Otherwise, all you have is a statement that she was found walking along a road," and photographs of injuries, he said.
According to Foley, domestic abuse and assault cases rarely go to trial. It is more common for a case to be dropped by the accuser before trial or dismissed by a judge due to lack of corroborating evidence. When a witness fails to appear after a lengthy process, Foley said, "It's very, very frustrating for us. It pulls out the rug from underneath us."
Other delays followed the case since its inception in May. Assistant District Attorney Randi Brown moved to Florida in August, and the trial was delayed while Drab took over the position. At that time, Romer said a person accused of a crime has a right to a speedy trial, but, "I cannot schedule a date with only two weeks notice for a new (assistant) D.A. to get up to speed. It would just get overturned, and then it would be another six months and we'd be right back here again," Romer said at the August hearing.
At that time, Romer addressed protesters against domestic violence who demonstrated across the street from the courthouse at each hearing. "Unfortunately, the wheels of justice don't always turn as fast as we might like. And Mr. Prost is entitled to a speedy trial." She said she believed a trial would be set for late September or early October. Because the trial was expected to last two to three hours, it could not be scheduled on a regular court night. Due to scheduling conflicts, the trial, in which the case was dismissed in less than 10 minutes, was set for Nov. 6 at 9 a.m.
"My office is taking this matter very, very seriously," Brown said in August. In June, she said the district attorney's office would not accept any plea offers on the charges.
When asked by a protester about Drab's style as a prosecuting attorney, Brown replied, "He is very aggressive." After the trial, Foley said Drab's hands were tied because the accuser didn't come to the trial.
"It would be malicious prosecution if I went forward with a case I could not prove. If I move forward, then I'm using my office as a sword. Ethically speaking, you can't do that," Foley said. "We knew we had little chance if the victim didn't show."
At the trial, Drab asked for an adjournment and told the judge,"I spoke with her last night and explained to her the importance of her appearance here this morning," he said, but added, "I didn't get a firm commitment from her." Romer asked Drab, "Do you have reason to believe she would appear at a subsequent adjournment, given the fact that Mr. Prost is entitled to a speedy trial? The matter has been pending since last May, and the victim in this case was given every opportunity to appear today." Drab replied he did not.
While the failure to answer to a subpoena is an act of criminal contempt, Foley said he has no interest in prosecuting the accuser. "It doesn't undo the dismissal. ... My only remedy is to charge her with criminal contempt which doesn't resurrect the case," he explained. "It puts us in a hard spot when we're left with an ethical obligation. The system is made to put the burden on my or my office."
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