Star-Gazette (Elmira, New York), July 29, 2007, Sunday

Copyright 2007 Star-Gazette (Elmira, NY)

All Rights Reserved

Star-Gazette (Elmira, New York)

July 29, 2007 Sunday

1 Edition

SECTION: A-SECTION; Pg. 1A

HEADLINE: Police explain choice for DA

BYLINE: Ray Finger rfinger@stargazette.com

BODY:

Star-Gazette

Is the Chemung County district attorney letting some criminals go free because they aren't being prosecuted quickly enough?

District Attorney John Trice says that's not the case.

But several police agency representatives think so, and as a result have endorsed Elmira lawyer Weeden Wetmore, Trice's opponent in the Republican primary in September.

So far, Trice has received the endorsement of the Police Benevolent Association of the New York State Troopers.

But Wetmore has been supported by the Chemung County Deputy Sheriffs Association, the Elmira Heights Police Benevolent Association and the Police Conference of New York in Albany, which made its endorsement at the request of the Elmira Heights PBA.

Wetmore also has been endorsed by Local 3978, Council 82 of the American Federation of State, County and Municipal Employees, the union that represents county correction officers.

That doesn't come as a surprise to Kate Bronfenbrenner, director of labor education research at Cornell University.

While she is not familiar with the details of the local district attorney race, she said the endorsements of the challenger seem to reflect a pattern she has observed across the country in increased union- organizing activities by police.

A common theme among the groups that support Wetmore is that police are making good arrests and, for whatever reason, the district attorney is not prosecuting them in a timely manner, resulting in charges being dropped.

Their endorsements reflect their frustration, she said.

"You work hard and your cases are lost not because of the issues of the case, not because the judge is ruling against you on the merits of the case, but because it didn't get processed in time," Bronfenbrenner said.

"It's not easy being a cop. It's one of the harder jobs, and you take great risks. And if you work this hard and you risk this much, and then your work is for nothing, then that's the frustration level," she said.

"There's a sense of unfairness that makes people willing to stand up to those in power and actually take some risks to fight for what you believe in."

That is the reason workers organize unions in the first place, Bronfenbrenner said.

If police feel they haven't gotten a fair shake or they're not able to do their jobs, they will end up being more active politically, whether it's for district attorney, the mayor or judges, she said.

In order to endorse Wetmore, the Elmira Heights PBA had to amend its bylaws, and then the endorsement had to be unanimous.

"That's how strongly we feel in this," said Patrolman Jerry Pesesky, a past PBA president and part of the police department for almost 20 years.

Elmira Heights PBA Vice President Steven Pickering said the association met with both candidates in mid-March.

The PBA asked Trice about several cases, and he said he would look into them and get back to the PBA, he said.

"To this day, we have still not heard anything back on several cases that we've asked him about. That's the real frustrating part," Pickering said recently.

One case in particular involves a motorist who assaulted an Elmira Heights police officer after a traffic stop.

The officer was knocked unconscious briefly and taken by ambulance to a hospital for treatment.

The suspect was arrested on several charges that included assault and resisting arrest.

But because the DA's office did not present the case to a grand jury within 45 days, the charges were dismissed and the case records sealed.

"We did research that case, and in order to charge assault in the second degree, it was a struggle," Trice said.

As police wrestled with the suspect to get him under control, one officer was knocked down, hit his head on the ground and he was knocked out, receiving a concussion, Trice said.

Even so, the prosecution would have had to prove physical injury, which means impairment of physical condition and/or substantial pain, he said.

"None of those factors were present in that incident. In other words, the officer was fine after that," Trice said.

"It wasn't as though his knee was sore for a couple of days so he couldn't use it, things of that nature," he said.

"We could not prove physical injury beyond a reasonable doubt."

Elmira attorney Robert Siglin, Wetmore's campaign manager, said Trice didn't do an investigation.

"I don't know how he can draw that conclusion," he said.

"Never once did he call the officer and interview him," Pickering said.

Pesesky concurred. "For him to say it doesn't meet the threshold when you don't even interview the victim, how do you determine it?" he said. "What are you basing it on?"

Trice said he can understand the concerns of police, but even though the grounds of an arrest may be top-notch, the burden of proof in court often is a more difficult hurdle.

"The arrest is many times excellent," he said. "But to be able to prove it in a court of law without it getting thrown out before we even get it to a jury, that's where things become somewhat tenuous and problematic."

As an example, Trice cited an incident in which a youth was shot in the leg.

He charged the shooter with second-degree criminal possession of a loaded weapon with the intent to use it unlawfully against another person.

He had considered a charge of second-degree assault until he talked with the victim, he said.

"The way the bullet went in, it was kind of a surface wound," he said. Asked about the pain, the victim said at first it stung and then was fine, and he participated in sports the next day and was not affected at all, he said.

Even though there were holes in the victim's skin, he could not prove a physical injury, he said.

"Don't get me wrong. Police do a great job. They're out there under very difficult circumstances. I understand that," Trice said.

"At times, they'll make the arrest, and the arrest is a good arrest because it's based on what we call in New York state 'reasonable cause,' more or less probable cause," he said.

"But again, when I take a case to trial, I've got to prove it beyond a reasonable doubt, which is a much higher standard."

Lt. Michael Decker, president of the Chemung County Deputy Sheriffs Association, said if the courts had higher expectations for reasonable doubt, nothing had ever been relayed to the sheriff's office about it.

"If you look at the cases that weren't prosecuted, if there was a problem, I guess the communications between the district attorney's office and the officer on the street probably should have been more fluent," he said.

That way, if there had been a problem, they may have been able to rectify it, he said.

"If the police officers are doing something wrong, then they need to be told. But in the same sense, if the cases are solid and they're using that as an excuse to say 'Well, we've kind of overlooked it' well, I guess one excuse is as good as another," Decker said.

"But I know some of the cases that were up there, and to us, I think they were solid."

New York State Troopers PBA President Daniel De Federicis was traveling and not available to comment for this story, his office said Friday.

In announcing the PBA's endorsement, De Federicis said Trice was "professional, hard-hitting and successful in his prosecution of the suspects in the murder of New York state Trooper Andrew J. Sperr."

Sperr was shot and killed March 1, 2006, while investigating a suspicious vehicle occupied by men who had just robbed a Big Flats bank.

Richard Wells, president of the Police Conference of New York, was on vacation last week, his Albany office said. Conference members include the Elmira Heights PBA.