In a series of legal setbacks faced by an Albany District Prosecutor, he has finally found an ally in the appeals court. An associate Appellate Division justice ruled recently that District Attorney P. David Soares should be reinstated in the Florida steroid case. He also reinstated the 33 count of felony charges against operators of a Florida Pharmacy who were allegedly involved in a nationwide steroid distribution.

Judge William E. McCarthy made the decision while the petition of the office of the Prosecutor Soares is being heard. In the filing of the legal counsel of Soares, he argued that the decision of Judge Stephen W. Herrick was flawed and could become a very dangerous precedent. Judge Herrick dismissed the charges against the pharmacy owners and removed the NY prosecutor from the case due to conflict of interest. The defendants sued Soares for $75 million for damages as a result of their arrests and raid conducted on their business in 2007.

Soares’ Petition

From the information gathered by the Times Union, Soares and his group told the appeals court that the ruling of Judge Herrick of Albany and Judge Presnell of Florida were erroneous. “Herrick has far exceeded his authority and has violated separation of powers principles, potentially causing irreparable harm to the reputation of the Albany County District Attorney’s Office and individual prosecutors involved in this case,” said Christopher D. Horn, a special counsel for Prosecutor Soares.

They also pointed out that both judges committed errors in their judicial orders, by allowing a lawsuit against the prosecutors and citing conflict of interest as a result of the lawsuit. “The decision and orders at issue undermines the public confidence in the criminal justice system because it gives defendants (particularly those with deep-pockets) the ability to veto a duly elected District Attorney from prosecuting them by the simple expedient of filing a lawsuit against the District Attorney before a criminal action has been terminated in their favor,” Horn said.

Assistant prosecutor Christopher Baynes, the Orlando Police Department and several other law enforcement agencies were also involved in the case.

Basis of the Decision of the Two Judges

In the decision of Judge Gregory Presnell, he questioned the authority of Prosecutor Soares in arresting the defendants. Signature Pharmacy operates in Florida but have ties with doctors in other states particularly in New York. Doctors made prescriptions of anabolic steroids for clients and filled by the pharmacy. The Albany District court already charged several medical practitioners who were involved in this multi-state steroid distribution conspiracy. But judge Presnell ruled that the defendants have never done business in New York which makes the arrests illegal.

Judge Stephen Herrick, on the other hand, cited the decision of Judge Presnell in his ruling. The federal civil rights lawsuit filed in Florida was used as his basis in citing conflict of interest. Judge Herrick appointed a special prosecutor when he removed Soares from the case. The original indictments were also dismissed.

The petition named Judge Herricks and 5 other defendants who run the Pharmacy in Florida as respondents. They have until Dec. 27 to submit legal arguments.

One of the lawyers of the defendants told the Times Union that the district attorney’s office in Albany should be standing aside and letting the case move on through Fanciullo or back in Florida. They believed that Herricks decision was proper and they expect that the appeals court will rule in favor of the defendants. “I think it’s ultimately going to fail just as is the notice of appeal by the district attorney’s office. This case never should have been brought in this county or in the state of New York,” said the lawyer.

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