Pro-family activism that makes a difference!

Confrontation between Judge and prosecutor in Peter D'Attilio hearing Feb. 9 -- before case was thrown out!

Judge berates prosecutor over weak case and false charges

POSTED: Feb. 12, 2012

The following discussion took place between Judge Stephen Ostrach, Defense Attorney Stephen Foley, and the prosecutor from the Norfolk County District Attorney's office during the Feb. 9 hearing on the Peter D'Attilio case. The judge had serious questions about the propriety of the two charges: disturbing the peace and resisting arrest. After a tortured attempt at "explanation" by the prosecutor, the judge had finally had enough and subsequently threw out all the charges and dismissed the case.

The dialogue below is as verbatim as possible -- the result of two observers in the courtroom simultaneously taking notes.

The judge first pauses and reads the police report. Then he looks up and motions to the defense attorney to speak first.

Defense Atty: Mr. D'Attilio was standing on property. He was not told to remove himself from the property. He was merely approached, and in fact he was not allowed to leave the property. He was asked to produce an identification. He refused to produce an identification and he was told if he did not produce an identification, he would be arrested. And he walked away.

Judge: Once he became arrested, even if it was an arrest without a probable cause, does he have a Constitutional right to resist?

Defense Atty: I submit an individual doesn't just have to stand passively. If an individual just moved his arm, or doesn't willingly submit, I submit that does not rise to the level of resisting arrest.

Judge: Resistance itself has a certain threshold, you're right. You don't have to cooperate. You don't have to enthusiastically march to whatever step the officer wants. On the other hand, you can't punch him in the face. But that doesn't seem to be the case here.

Defense Atty: That's correct

Judge: The resistance here seems to be certainly within the law. It's interesting, it [the police report] begins by saying the person in charge of the property wanted the party removed from the property. And instead of removing the person from the property, the police chose to keep him on it.

Prosecutor: I don't necessarily think that that's what happened there. I don't think that the text should be read in that particular light. There was an individual there, and the officer was told that the owner of the property, or the person who maintained the property, wanted the person removed. They were investigating a trespass offense at that time. They went up to . . .

Judge: It's not a trespass until the person is told to leave and he refuses to do so. Is there any indication here that the defendant had ever been told he was supposed to leave?

Prosecutor: No. It was . . .

Judge: It was a festival. It was open to the community. He was passing out pamphlets on a political issue. Where does it say they were investigating a trespass?

Prosecutor: The police officer said they wanted the person removed from the property.

Judge: What should have been done, the police officer should have approached the suspect, and told him he should leave the property…

Prosecutor: When a police officer is conducting an investigation …

Judge: An investigation of what?

Prosecutor: A tresspass.

Judge: Where's the probable cause that there's a trespass?

Prosecutor: I don't think it's required in regards to that. There's an investigation that's taking place.

Judge: So, he's investigating an accident. "I'd like your ID." "I don't want to give you my ID. And I'm going to leave now." Look, the man wanted to leave. "I want to leave now." "I told him to stop and started to block him with my arm extended."

Prosecutor: He didn't say that he was going to leave. I think it was the exact opposite, that he wanted to stay and continue his behavior. That's what the inference should be drawn . . .

Judge: [Reading the police report:] "…started to leave. Subject, later identified, started to leave."

Prosecutor: By that time, the police have a right to conduct an investigation in regards to . . .

Judge: I'm sure they do. They can investigate from today until the cows come home. But what business do they have laying hands on this man? What right did they have to block this man from leaving?

Prosecutor: What right did they have?

Judge: Yes.

Prosecutor: They were conducting an investigation at that time. They were speaking to him and . . .

Judge: . . .And he chose to walk away from the police.

Prosecutor: He chose to walk away from the police at that time.

Judge: And they didn't want him to.

Prosecutor: That's correct.

Judge: And so they decided they were going to physically restrain him.

Prosecutor: Physically restrain him? I think that's a leap. What we have here is that the contact was brought by Mr. D'Attilo in that he pushed past the officer -

Judge: So if Mr. D'Attilio had turned and walked the other way away the policeman wouldn't have stopped him -- if he went the other way. There was something about his particular direction -- the police officer was concerned about?

Prosecutor: I don't know that.

Judge: Let's assume for the moment that the police have no reason to arrest Mr. D'Attilio, but they still tell him he's going to be under arrest. Now I agree with you that you can't resist an arrest even if it's a patently illegal arrest. Did he resist?

Prosecutor: I would suggest there was nothing patently illegal . . .

Judge: I appreciate your suggestion.

Prosecutor: Well, just in terms of his conduct and the way he handled himself with the police by pushing past them and then causing a scene. When he's causing a scene -

Judge: He was causing a scene?

Prosecutor: Yes.

Judge: He's causing the scene.

Prosecutor: That's right. He was not placed under arrest for disturbing the peace until after -

Judge: It says that if he did not produce an ID he was going to be placed under arrest for disturbing the peace because he was creating a scene. In other words, "Disturbing the peace" is not providing your ID? That's a remarkable way of disturbing the peace. It's the middle of the night in the wilderness and there's no one else around. "Give me your ID." "No." "You're disturbing the peace!" Nonsense.

Prosecutor: But he was . . .

Judge: Forget about that. I want to hear about this resisting arrest.

Prosecutor: It indicates that while he was being placed under arrest he begins to pull away and is resisting being placed into custody, physically restrained and then handcuffed. And that was after he pulled away, resisting being placed into custody. I don't have the case law in front of me. I know that part of the jury instructions, the supplemental portion on resisting arrest, indicates that when we look at the reasons why we have the resisting arrest statute, it's for officer safety, which would be in existence whether it was a lawful or unlawful arrest.

Judge: [Opens up the jury instructions book regarding 'resisting arrest' and reads from it] "And during and after an arrest, when the officers had him under color of authority, and he resists either by using or threatening to use physical force or violence against the police officer or some other means he created substantial risk of causing bodily injury to the police officer." What is the evidence that the defendant "used or threatened to use physical force or violence against the officer or by some other means created substantial risk of causing bodily injury to the police officer"?

Prosecutor: The Commonwealth would suggest that by pulling away from the officer who was making an arrest under the color of authority -- it created that threat.

Judge: [Very long pause . . . then clears his throat.]
Motion to dismiss is allowed by finding endorsed on the face of it.
Thank you gentlemen.