ITHACA, N.Y. -- A misdemeanor charge against a Tompkins County sheriff's deputy was dismissed after Assistant District Attorney Wendy Franklin neglected to inform a witness of the trial date, records show.
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A misdemeanor charge of second-degree criminal contempt against Jeremy Vann -- who is still facing a 16-count indictment at the Tompkins County Court -- was dismissed in Ithaca City Court on March 14 after Franklin did not inform a witness of the trial date or offer a reason for not informing the witness.
Vann was accused on Oct. 9 of violating an order of protection issued for a witness in the county court case, which alleges that he robbed and assaulted a woman, among other accusations.
The case was dismissed and mistakenly sealed. But on April 8, The Ithaca Voice formally requested that the court unseal the record as a matter of public interest and because it was mistakenly sealed before a 30-day allotted time frame. It was unsealed by the court on April 22.
New charge for Tompkins deputy facing 16-count indictment
What happened in court?
A 16-page written decision by Judge Scott Miller -- which can be read in its entirety at the bottom of this story -- detailed the following narrative:
A woman referred to as M or Ms. M to protect her identity said Vann violated an order of protection when he did not leave Island Fitness after he saw her working out on a stationary bike on Oct. 9. She claims that Vann made eye contact with her and then proceeded to work out in another area of the gym, instead of leaving immediately, as the order of protection demands.
After several court appearances and a not guilty plea, on Dec. 18, Vann and his attorney Ray Schlather told the court they wanted a bench trial. A bench trial is a trial without a jury.
At the same appearance, Franklin informed the court that Ms. M would not be in the country in February and asked for the trial to happen in January or March. Ms. M is not an American citizen and in the country for work.
Throughout this time period, Franklin was in contact with Ms. M via email and phone call and Ms. M was also responsive to Franklin, emailing the prosecutor back within the same day of receiving emails from her.
On Feb. 4, the court informed the lawyers that the trial was schedule for March 14. Neither lawyer objected.
On March 8, 33 days later, Franklin filed two motions with the court:
The first asked for the trial to be adjourned to a later date because Ms. M would not be in the country on March 14. Franklin did not say why she waited to inform the court of this fact, nor was she able to say how long she knew about it.
The second motion asked the court to recuse itself from the case because of, "statements made during the Defendant's October 28, 2015 arraignment."
Both motions were denied by Miller.
During the trial several days later, Franklin did not call three other witnesses to appear in court either because she said she did not believe the case could go forward without Ms. M.
Witness never informed of trial date
The written decision states, "The Court (Miller) asked the People (Franklin) whether they had ever informed Ms. M of the March 14 bench trial which had been scheduled nearly six weeks earlier. The People responded that they did not in fact inform Ms. M of the March 14 trial date."
Franklin said she did speak with Ms. M after Feb. 4 via phone call, but does not think she informed the witness of the trial date at that time.
Miller, citing several court cases in his written decision, said Franklin was "guilty of neglect" for the following reasons:
She did not inform Ms. M of the March 14 trial date.
She did not provide an explanation to the court for why she didn't tell Ms. M about the trial date.
In a letter dated Feb. 12, Franklin provided a letter to use with U.S. Immigration officials to be allowed in the United States to act as a witness during the felony trial. The letter, however, did not mention the March 14 bench trial.
Franklin did not offer an explanation to the court about why she stopped communicating with Ms. M after Feb. 12.
Schlather asked the court to find Franklin in contempt of court for not having witnesses available for trial despite the court's refusal on March 10 to deny an adjournment she requested, which would have rescheduled the trial for a later date.
Miller declined to do so because, "The people's conduct in this case does not amount to intentional misconduct or wilful disobedience of any order of this Court."
Dismissal of charge in "furtherance of justice"
Miller dismissed the case "in the furtherance of justice," also considering the seriousness of the crime, evidence of guilt and extent of harm caused by the offense.
He said that while a guilty verdict for second-degree criminal contempt has a maximum sentence of a year in prison, Vann would likely only be sentenced to a year of conditional discharge if found guilty. Conditional discharge means Vann would serve no jail time and, instead, is required to not commit other crimes or he could face more serious repercussions and sentencing from the court.
Factors that would have influenced that sentence include Vann's limited criminal history -- a petit larceny conviction in 2004 -- and more serious order of protection violations the court has seen in other cases over the past few years.
District Attorney says the actions of ADA were likely a trial strategy
District Attorney Gwen Wilkinson said she read the court's written decision for the first time Friday night after being forwarded the document by The Voice. She said she was not given a copy of it prior to leaving work Friday, the day the documents were released.
Wilkinson -- who confirmed that Franklin's last day with the District Attorney's office was Friday -- said she has not spoken to Franklin about the issue as of Saturday morning.
Franklin submitted a notice of resignation from her role as an Assistant District Attorney some time in mid-March. Wilkinson could not provide the exact date of the resignation because she did not have the notice at her home Saturday morning during a phone interview with The Voice.
She said Franklin's departure from the office and the court's finding of negligence in this case are not related.
"It was not my request that she leave. I did not fire her. I did not suggest that she seek other employment. And it was, as far as I know, solely a function of her desire to pursue other professional opportunities,” Wilkinson said.
She went on to say that ADAs usually provide the office with 10 days of notice before leaving. Franklin gave the office several weeks of notice.
Official: Tompkins Assistant District Attorney resigns to pursue other opportunities
"In so far as his (Miller's) finding that the people engaged in neglect of the case which, technically, I guess, he is legitimate in saying that. Let me hasten to say that it is not unusual that a witness may be unavailable and that the attorney who is calling the witness may choose to request an adjournment to produce the witness even on the day that they're required to be in court," Wilkinson said. "This is not that egregious or unusual a situation although technically the judge is entitled to call it case neglect if he, you know, if that is his finding.”
She went on to say that Franklin did not break any laws or commit ethics violations by not informing the witness of the trial date. However, she said that Franklin should have informed the court that the witness could not make the trial date sooner. Even if Franklin was intending to try to set back the trail date, it would have been a better decision to tell the witness about the set trial date on March 14.
"It is not normal to not tell a witness about a date even if you as a prosecutor are trying to get the date moved,” Wilkinson said. "I will concede that it is unusual and not best practice for a prosecutor to make that decision without informing the witness in any way shape or form of the court date."
Wilkinson said it seems like Franklin's strategy could have been this:
Ms. M is a witness in two cases against Vann: the misdemeanor dismissed at city court and the 16-count indictment in county court.
Ms. M was in another country when the city court trial date was set and, it seemed likely, would continue being out of the country because her work in America had been completed.
Rather than have Ms. M travel back to the United States for the March 14 trial and again on April 11 -- when the felony trial was slated to start -- Franklin likely intended to move he dates closer together so Ms. M could testify at both proceedings in one trip.
Court records do not verify this account.
"I would say that Wendy dd not tell Ms. M about the march 15 trial date because she believed in good faith that it was going to be possible to move that date,” Wilkinson said.
She said that despite the decision, Franklin was prepared to go to trial against Vann on the indictment charges on April 11. The trial, however, was adjourned by several months just a few days before it was scheduled to begin.
Wilkinson said it was not her office who requested the adjournment and Franklin would have definitely been the prosecutor on the case, regardless of this decision by Judge Miller.
"Case neglect is not prosecutorial misconduct…it means you didn’t do something the court thought you should have done. It doesn’t mean you’re a horrible prosecutor and you should be drummed out of the (American) bar Association, " Wilkinson said.
“She is not the first prosecutor who’s been chastised by the court. She certainly won’t be the last. And the same is true of the defense bar.”
Wendy Franklin; Tompkins ADA
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