Circuit Court to hear arguments; PA Office fights effort to disqualify it from prosecuting stalking case

     HARRISON – The 55th Circuit Court will hear arguments on whether the Clare County Prosecutor’s Office should handle the prosecution of a stalking case against a 42-year-old Clare man.
     Acting 80th District Court Judge Roy G. Mienk disqualified the prosecutor’s office and moved that a special prosecutor be appointed in a motion entered on Sept. 18.
     Joshua Farrell had disqualified himself from the matter due to his previous experiences when he had his private law practice. Mienk, of the 55th Circuit Court in Gladwin, was appointed as judge.
     Clare County Prosecutor Michelle Ambrozaitis filed a motion in mid-October to appeal the decision to disqualify the office. Ghazey Aleck, attorney for Aleck & Jenkins, LLC., filed the motion to excuse the Prosecutor’s Office on behalf of Patrick Scott Boggs.
     Boggs was charged with stalking and reckless driving in June.
     Chief Judge Thomas Evans of the 55th Circuit Court granted Leave to Appeal the decision of District Court that the Clare County Prosecutor’s Office was disqualified from the case, Ambrozaitis said.     “Basically, what this means is that we can now file additional briefs and have argument on the issue of disqualification in Circuit Court,” she said.
     Aleck filed a motion to show cause and/or dismiss after the Prosecutor’s Office filed their notice of the intent to appeal the 80th District Court decision on disqualification.
     According to 80th District Court officials, a show cause hearing on the motion will take place on Dec. 3.
Ambrozaitis said she could not comment further on the case as it was pending. Aleck could not be reached for comment.
     Aleck argued in the motion to disqualify the prosecutor that Christopher Joseph Russo Sr. campaigned for Ambrozaitis in the campaign for her election. Boggs is charged with stalking against Russo’s son.
Ambrozaitis’s motion argues Boggs and Russo Sr. had a falling out several years ago and that Christopher John Russo, the minor victim, suffered as a result.
     Stalking is punishable by one year in jail and/or $1,000 in fines and up to five years on probation.  Reckless driving is a misdemeanor punishable by up to 93 days in jail and/or $500 in fines.
     Boggs is charged with incidents that occurred between March 1, 2008 and April 23, 2009. He bonded out on a 10 percent bond of the $1,000 so he paid $100.
     To be guilty of stalking, it means that Boggs had to act with two or more separate non-continuous acts and that the harassment was repeated unconsented contact.
     Aleck argued allegations went back to 1997 and that it was impossible to ascertain what is at issue. He argued Boggs has no way to defend himself due to the time period.
     Aleck said former Clare County Prosecutor Norman Gage denied action against either party due to lack of credible evidence. Aleck argued Ambrozaitis is stuck with what the previous prosecutor decided and that evidence was lost due to the old prosecutor’s decision to dismiss.
     The Clare County prosecutor’s motion had filed a response to Aleck’s May 19 motion to dismiss. The motion argued stalking is a continuous crime and there were multiple complaints that would show a reasonable person would feel harassed.
     Incidents ranged from March, April and May 2008 to incidents in 2009. The police reports and complaints allege incidents of Boggs tailgating Russo, making gestures and giving Russo dirty looks, following Russo, driving past Russo when he was walking and video-recording him.
     It also is alleged that on May 19, 2008, Boggs and Russo approached an intersection at the same time. It was alleged that Boggs swerved into Russo’s lane just missing him and then giving him the finger.
     On April 29, 2008, Boggs is accused of driving past Russo and putting his hand in a gun shape and acting as if shooting at Russo.
     Aleck used evidence including a 1994 letter that showed Christopher Russo Sr. was not allowed on the Clare Public School grounds as evidence of issues.
     Ambrozaitis argued that the victim is not the father, but the son. Therefore, she argued that the letter and facts of that matter were not relevant to the current case.
     Aleck’s motion for disqualification of the Prosecutor’s Office included comments that Russo Sr. had made to the Clare County Board of Commissioners and Russo’s support of Ambrozaitis in her campaign for prosecutor.
     The court granted Aleck’s motion to disqualify the Prosecutor’s Office with the order being entered on Sept. 18. As part of that motion, the case was stayed until the appointment of a special prosecutor. The prosecutor’s office then appealed.
     Grounds for appeal include that the 80th District Court lacked the jurisdiction to hear Bogg’s motion for the prosecutor’s disqualification and in the alternative lacked the factual support sufficient to make such a finding.
     “First and foremost the district court was without jurisdiction to consider whether the prosecutor’s office had a conflict, which caused the appearance of impropriety let alone disqualification of the prosecutor’s office and appointment of a special prosecutor,” the motion stated.
     “Second, even if the district court had jurisdiction to address prosecutorial conflict, this case lacks a factual basis to support a finding of prosecutorial conflict which rises to the level of the appearance of impropriety,” the appeal stated.
     There was no evidence presented that the victim Russo Jr., a minor not old enough to vote, had any relationship with Ambrozaitis. The appeal argued Russo Sr. was a campaign supporter but the defense failed to introduce evidence to support the contention that there was a personal relationship between the parties that was significant enough to require disqualification.
     The motion argued that a finding of prosecutorial conflict that required a disqualification because Russo Sr. acknowledged support of Ambrozaitis, “poses a chilling effect on citizens supporting candidates for public office thereby impeding free speech, democracy, representative government and separation of powers,” the motion stated.