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A line has been drawn in a dispute between Erie County’s top prosecutor and a judge over a specialized domestic violence court.
State Supreme Court Justice Deborah A. Haendiges on Thursday set a deadline of noon today for District Attorney Frank A. Sedita III to prosecute a domestic assault charge against a man accused of breaking a woman’s jaw. If the DA refuses, Haendiges said a special prosecutor will be appointed to handle the case.
The misdemeanor case is one of 11 that Sedita has refused to prosecute in Haendiges’ Integrated Domestic Violence Court since Aug. 24 because he said he finds them better suited for local courts.
The deadline is the latest development in the dispute over a specialized court that judicial administrators describe as sensitive and coordinated for victims who also have custody or matrimonial cases pending but that has been criticized by Sedita as inefficient, costly and prone to dismissals and acquittals.
The District Attorney’s Office has said appointing a special prosecutor would be unlawful.
In the meantime, both sides have put forth conflicting statistics about case dispositions.
Sedita has stopped prosecuting misdemeanors and violations in the integrated court, but he continues to prosecute felony domestic violence cases there and in other courts. Sedita prefers that his prosecutors handle violation- and misdemeanor-level domestic violence cases in local courts.
The dispute prompted the Erie County Coalition Against Family Violence to call on both sides “to resolve the concerns of both the DA’s Office and the Supreme Court and choose an avenue of action that doesn’t compromise victim safety.”
“Although I am confident that the district attorney is concerned for the victims of domestic violence, unfortunately his comments in both his affidavit and press releases is sending a negative message to the community that domestic violence is not important,” Michael A. Chase, community relations chairman for the coalition, said in a statement.
When the assault case against Michael Izzard was called Thursday morning, Sedita was in the courtroom.
Haendiges issued a pointed, written decision that denied Sedita’s request that she recuse herself from the case and also defended the integrated court’s and the prosecution’s authority to handle unindicted misdemeanor cases transferred from criminal courts.
The decision also included the deadline for the district attorney to notify her in writing if he changes his mind and agrees to prosecute the case.
“I’ll be waiting for that response,” Haendiges said from the bench. “If there isn’t one, that’s OK, too.”
An assistant district attorney first declined to deal with Izzard’s case Sept. 20.
“Not appearing, Your Honor,” the prosecutor said at the time. “The people will not prosecute a matter administratively transferred into the Integrated Domestic Violence part after Aug. 24, 2012, for the reasons set forth in the district attorney’s previous correspondence. Thank you.”
On Sept. 26, Donna A. Milling, chief of Sedita’s Appeals Bureau, appeared before the judge and told her that the district attorney was “not failing to prosecute or failing to appear” but referred to Sedita’s affidavit explaining his position that the case should not be heard in her court.
That led to Thursday’s decision from Haendiges.
“They are not exercising any prosecutorial discretion in refusing to further investigate, negotiate a resolution, dismiss or proceed to trial,” the judge wrote of the prosecution’s stance on Izzard.
“Their abrogation of their authority at this stage of the proceedings is merely an attempt to choose a venue, and in doing so they are disregarding how their actions will affect this family,” she wrote. “Prosecutorial discretion is the authority of the prosecutor to decide when, how and if to prosecute the case, not where the case is prosecuted. Clearly, this is an attempt to circumvent the intended purpose of the IDV part.”
The judge said she found that the district attorney “has abrogated his authority to use his discretion as a prosecutor and he is deemed unavailable and no longer in attendance on this case.”
The judge pointed out that Sedita’s office already appeared on Izzard’s case in a lower court and moved to reduce his original felony assault charge to a misdemeanor assault charge.
Sedita’s arguments “fail to support a basis for the [district attorney’s] lack of exercising any prosecutorial discretion in this case after it was transferred to the IDV part,” she said in her decision.
Sedita told The Buffalo News that his prosecutor could handle the Izzard case competently in the lower court and that it did not need to be transferred to the integrated court.
Sedita said Rachel L. Newton, chief of his Domestic Violence Bureau, and Felony Trial Bureau chief Kristin A. St. Mary, the bureau’s former chief, have expressed concern about the strain and workload placed on prosecutors by the number of cases involving lower-level charges in the integrated court.
Often, prosecutors in the integrated court must contend with not just the criminal-defense attorney, but the victim’s matrimonial attorney, the defendant’s matrimonial attorney and the child’s law guardian. And prosecutors also contend with numerous noncriminal issues.
“They have both told me that IDV is a disaster,” Sedita said. “It has gotten to a breaking point, and that’s why I did this. This was the advice I was getting from two of my top female prosecutors in the office.”
Sedita said he has taken steps to make sure that no dangerous offenders slip through the cracks during his dispute with the court.
The case against Izzard, for example, has been scheduled to be presented to the grand jury, Sedita said, citing the seriousness of the allegations against him.
“Should the grand jury return an indictment for any offense, I will prosecute the case in whatever forum I am directed to prosecute, including the IDV part,” Sedita said.
He said his prosecutors will appear in whichever court the case is assigned for any defendant indicted by the grand jury, Sedita said.
Sedita said he has instructed Newton, his domestic violence bureau chief, to put any post-Aug. 24 case before a grand jury if she believes the offender should be prosecuted.
“I don’t want to jeopardize domestic violence victims,” Sedita said. “If there’s a dangerous domestic violence offender out there whose case needs to be prosecuted, I have given her the discretion to put that case before a grand jury.”
Sedita attributes the court’s dismissal and acquittal rate to the fact too many of the cases are not domestic violence.
“They may be domestic discord cases,” he said. “That’s a real problem we’re seeing.”
Offenders in the integrated court should be those who have assaulted, stalked, strangled or threatened their spouse or girlfriends, he said.
“What we’re seeing more of is domestic discord being labeled by somebody as domestic violence. That’s why you have such a high acquittal rate.”
Administrators at the integrated court have disputed Sedita’s statistics.
Of 186 defendants whose cases were disposed of in the first six months of the year, 123 - or two-thirds - were found guilty by plea or trial, according to figures supplied by the court,
Twenty-six percent of the cases were dismissed, and only two cases ended in acquittal, according to the court.
Sedita, however, said the 109 dismissals and acquittals accounted for 46 percent of Haendiges’ disposed cases in the past nine months.
The 84 cases resulting in a conditional discharge and the 25 cases resulting in probation equals the number of dismissals and acquittals, according to Sedita’s numbers.
Twenty defendants served time in jail, he said.
Sedita said he derived his numbers from counting disposition slips that his assistant district attorney’s fill out for every case.
“I don’t know how [the Office of Court Administration] does their numbers but mine are accurate," he said.

email: plakamp@buffnews.com