Poughkeepsie Journal

Ulster D.A.'s discretion finally justly applied on gay vows

VALLEY VIEWS

By E. Joshua Rosenkranz

Rosenkranz

Ulster County District Attorney Donald A. Williams purported to act for "the People of the State of New York" when he decided to bring criminal charges against New Paltz Mayor Jason West, a year and a half ago. He acted in the people's name, too, recently, when he abandoned the prosecution, just as the court was about to set a date for a jury trial, conceding the prosecution "would be lacking in a viable public purpose" and "would not be in the best interests of the community."

That about-face teaches us an important lesson about the limits of prosecutorial power. There is no dispute about the basic facts of the "crime" Williams chose to prosecute: Mayor West was guilty, he charged, of performing marriage ceremonies for loving couples ­ all competent adults who vowed to honor and cherish each other and to make lives together in committed monogamous relationships. When these couples asked West to officiate, he faced a choice: whether to follow his oath "to support the Constitution of the United States and the Constitution of the State of New York." He did.

Williams faced a choice, too: Not whether he agreed with West, but whether this was a case worth prosecuting.

From the very start, we argued that the answer was no. West had declared he would refrain from marrying same-sex couples ­ in compliance with an order from another court. We argued that a criminal prosecution of the sitting mayor served no purpose. It was a waste of taxpayer money. We argued it was a distraction. It was unduly divisive.

To date, more than 6,000 same-sex marriages have been performed across the country, but Williams distinguished himself as the only district attorney in the country to proceed with criminal charges. He cited a pressing need to vindicate the rule of law. (He also prosecuted two reverends, but when the trial judge threw out those charges, he declined to appeal, modifying his position to an imperative to vindicate the rule of law as applied to public officials.)

Williams pursued the charges against the mayor vigorously, for a year and a half, through every level of the judiciary.

Only Williams knows why he brought the charges in the first place, or why he dropped them.

What is clear, however, is that his explanation for the retreat invokes all the reasons we pressed from the start, casting doubt on whether there was ever any principle at all behind either the prosecution or the retreat.

Money wasted

Williams has not offered a public accounting of how much taxpayer money he wasted pursuing the right to try a case he has now lost interest in trying. It could not have been cheap. But the wasted money is the least of the concerns.

Generation after generation, we relearn the dangers of unfettered prosecutorial discretion. From the Salem witch trials to the bogus Red Scare prosecutions in the wake of World War I and World War II to the trumped-up charges brought under the discredited FBI counterintelligence operation to tame activism from the Black Power movements, we witness what can happen when overzealous prosecutors use the hammer of criminal laws, especially in response to the actions of citizens pressing for liberty and equality.

These are the images Williams evokes when he touts the principle (as he put it to a local reporter) that he had the raw power to decide "with full and unfettered discretion" whether to proceed.

Yes, the people vested an awesome power in Williams. But we, the people, entrust that power to an elected official with the expectation that he would exercise it carefully, thoughtfully and in a principled manner.

E. Joshua Rosenkranz, a partner at Heller Ehrman LLP, defended New Paltz Mayor Jason West against criminal charges for marrying same-sex couples.