In a prior entry, we noted that a local reporter had been charged with Obstruction of Governmental Administration, allegedly for asking police officers at a crime scene for information. At the time, the reporter’s employer, the Post-Star of Glens Falls, NY, protested and declared an intention to fight the arrest.
We have since heard, via the Post-Star, that the charge has been ‘resolved’. Apparently, the court has granted an adjournment in contemplation of dismissal (lawyers often call it an ‘ACD’). As the Post-Star puts it, “prosecutors have agreed in principle” to drop the charge.
Is this a thunderous vindication of the press? Not really.
An ACD works like this. The case is adjourned (literally “put off until another day”) for six months. If the court hears nothing further in that time, the charge is automatically dismissed.
As soon as the adjournment is granted, the defendant is released “on his own recognizance” and if bail was posted it must be returned. Once the case is dismissed, the law requires that mug shots and fingerprints be destroyed, and the file is sealed.
These are good things. When you have a client who’s behind the legal eight ball – and just about all criminal defendants are – you’re very happy when an ACD is offered.
However, when you take a good look at the definition of an ACD, it by no means implies exoneration. The statute says that an ACD “shall not be deemed to be a conviction or an admission of guilt.” You could guess from this alone that an ACD is actually a form of judicial diversion – a program for those guilty parties who may – after a trial period – be found worthy of absolution.
But there’s more.
The court can put strings on an ACD. A defendant might have to observe an order of protection, for instance, and stay away from a particular person or place. Or the court can impose community service. Community service might be the mildest form of punishment a court can hand out, but it would be hard to argue that it’s not punishment.
And, of course, the charge isn’t dead, it’s only dormant: if a defendant fails to comply with the court’s requirements, or is charged with an offense more serious than a traffic violation, the prosecution can be put back on the calendar.
In fact, a case will be revived any time the prosecutor can convince a court “that dismissal of the accusatory instrument would not be in furtherance of justice.” This standard gives the prosecutor a lot of leeway without giving the court a lot of guidance.
In one case we handled, the loose standard worked in our client’s favor: the judge announced when he granted the adjournment that certain specified activities our client might engage in – activities that some might find offensive – would not warrant reopening the matter.
In another case in another court, however, an ACD had already been granted, and our client had done nothing to merit its cancellation. The prosecutor, nevertheless, discovered that dismissal “would not be in furtherance of justice.” Why? The complaining witness had screamed bloody murder when he found out about it.
Here, the Post-Star originally said its reporter was arrested in a public roadway “four hours after [an] incident. There was no police tape up and the reporter [was] only guilty of asking the officers questions about the incident.”
We discussed the definition of ‘obstruction’ in our June 24th entry, and the rights of the press and public at a crime scene in our August 4th submission. Unless there was much more to the story than the paper reported, the facts wouldn’t seem to support the charge.
In any case, this particular dismissal doesn’t look like victory from here.