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Last updated: July 7, 2005


Court Orders Records of Protesters' Prior Dismissed Cases to be Resealed

New York State Court of Appeals reverses lower Court Decision

by Eric Monse

Protestors block 5th Avenue in Protest of Occupation of Palestine and Rachel Corrie killing.

photo by Fred Askew

In a unanimous reversal of a lower court's decision, the State Court of Appeals decided today that it was unlawful for District Attorney Robert Morgenthau to unseal defendants‚ prior dismissed cases to use the information in seeking harsher sentencing for the convicted defendants.

Based on the unsealed cases, District Attorney Robert Morgenthau is requesting 10 days jail time for four non-violent protesters who were convicted in a demonstration against U.S. and Israeli war crimes that took place in March of 2003. Other protesters present at the demonstration who were convicted of the same offenses but did not have prior dismissed allegations have been sentenced to community service.

This decision by the Court of Appeals, the highest court in the state of New York, is said by observers to be a sweeping rejection of the prosecution‚s aggressive attempts to jail political protesters and establishes a new boundary for the unsealing of dismissed cases and ACD‚s (adjournment in contemplation of dismissal).

"The court of appeals unanimously found that the prosecution was wrong to ask and the court to unseal these records; that the court was wrong to grant the opening up of dismissed cases so that the cases could be treated as if the defendants had been proven guilty when in fact the charges had been dismissed," commented Stephen Edwards, the defendants‚ lawyer.

"We're grateful that the court of appeals upheld the legislature's intent that "Iinnocent until proven guilty"‚ is the law in New York," said Rob Newman from the Legal Aid Society who also filed briefs on behalf of the defendants. "We're relieved that many innocent defendants who accept ACD's in order to avoid the expense and inconvenience of pressing for a trial in criminal court can now continue to accept ACD's without fear that a prosecutor will turn around in the future and try to use the arrest against him as if he had been actually guilty of the charge."

Many protesters are given an adjournment in contemplation of dismissal, known as an "ACD", to resolve their cases. An ACD falls into the category of a "favorable disposition". Thus, the records in many, if not most, protest cases are sealed. 

Legal watchdog organizations suggest the illegal unsealing indicates District Attorney Morgenthau's willingness to turn the law upside down in an attempt to punish citizens for their political activity and point to the courts dismissal of 90% of the arrest cases during New York City's hosting of the Republican Nation Convention. 

"I'm gratified that New York's highest court has knocked back the Manhattan District Attorney's attempt to eviscerate New Yorkers' presumption of innocence in his zeal to jail us for a non-violent protest. I can only assume that the unprecedented harshness with which this prosecution was pursued stems from the District Attorney's hostility to a message of our demonstration: U.S. support for Israel's war on Palestinians must end," said defendant Herbert "Steve" Quester

Protestor in front of Mock Bulldozer similar to the one which killed International Solidarity Activist Rachel Corrie

photo by Fred Askew

The four individuals involved will be sentenced on August 1st without consideration of the District Attorney's sentencing letter that currently includes references to the previous allegations. The sentencing court will be prohibited from considering those cases. 



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