Judge assigning special prosecutor to investigate Greene DA
A special prosecutor is being assigned to investigate Greene County District Attorney David Russo over his decision to file charges against two county officials following complaints about the ballot placement for candidates in the May primary.
President Judge Lou Dayich signed an order Tuesday in which he said there was probable cause that Russo abused his prosecutorial powers with 鈥渨illful and gross negligence in the execution of his duty,鈥� paving the way for the special prosecutor.
Dayich is expected next week to appoint an attorney who will investigate the case to determine if charges should be brought against Russo, and whether he should be removed from office.
The issue centers around Russo鈥檚 investigation and eventual charges against Greene County Commission Chairman Mike Belding and solicitor Robert 鈥淓ugene鈥� Grimm over their handling of the 鈥渃asting of the lots鈥� in March to determine the ballot order for candidates in the May 16 primary election. The district attorney鈥檚 chief detective, Zachary Sams, filed the charges and then Russo referred the case to the state Attorney General鈥檚 office, which withdrew all counts against Grimm and Belding a month later after reviewing the investigation and not finding sufficient evidence to mount a criminal case.
Grimm filed a complaint on May 12 against Russo alleging misconduct, and Dayich held a hearing on Aug. 29 to listen to details of his accusations. Russo was a candidate in the primary running for reelection, which Grimm said made it a conflict of interest for him to investigate the case rather than refer it to other authorities first.
In his order, Dayich said there was no evidence that Grimm participated in the ballot selection process itself, so there was no 鈥渧alid reason鈥� to file charges against him.
Dayich added that he found there was enough evidence against Russo for the case to move forward through the unusual legal procedure allowed by state law when a district attorney is accused of wrongdoing.
鈥淭here was a clear conflict of interest presented when the Greene County District Attorney鈥檚 Office filed these charges when Mr. Russo was a candidate for office and the power of prosecution was used to achieve personal gain,鈥� Dayich wrote in his order. 鈥淎lthough the matter was later referred to the Attorney General鈥檚 Office, the filing of the charges and later referral after the filing of the charges does not negate the establishment of probable cause in this regard.鈥�
Neither Russo nor his attorney, Ryan James, responded to phone messages seeking comment Thursday. Grimm declined comment about the case when reached by email, but referred to Dayich鈥檚 order as a 鈥渨ell-drafted opinion.鈥�
The appointment of a special prosecutor to possibly bring charges against a sitting district attorney is 鈥渧ery unusual,鈥� which indicates the seriousness of the case, according to Bruce Antkowiak, a law professor at St. Vincent College in Latrobe.
鈥淵ou鈥檒l occasionally see a case by disgruntled criminal defendants (filing motions against district attorneys), but they鈥檙e usually dismissed,鈥� Antkowiak said. 鈥淭he possibilities of this are numerous due largely to the unprecedented nature of the circumstances. You鈥檙e further down the line than these things normally ever get.鈥�
He said the special prosecutor will have to show Russo acted with 鈥渨illful and gross negligence,鈥� which Antkowiak admitted is a 鈥渉odgepodge of different mental states鈥� that can be difficult to prove. Still, he said the attorney that Dayich taps to serve as special prosecutor might feel 鈥渄uty bound to move forward鈥� with an indictment since the judge already determined there was probable cause to proceed.
鈥淲hoever is appointed is going to have to draft an indictment. They will certainly look at (Grimm鈥檚) allegations,鈥� Antkowiak said. 鈥淚t would be very difficult for an attorney appointed under this to say, 鈥榃ell that鈥檚 fine, but I don鈥檛 think there is enough to prosecute this.鈥� I don鈥檛 think it is built into the statute for the attorney to say that (an indictment) isn鈥檛 there.鈥�
While Dayich鈥檚 order did not specify what charge or charges Russo could potentially face, the lowest level of misdemeanor conviction includes up to one year in jail, a $1,000 fine and vacating the office. Antkowiak added that if an indictment is filed, the special prosecutor could also negotiate a plea deal.
Regardless of what happens, Russo is leaving office at the end of the year after losing the Republican primary to challenger Brianna Vanata, who also secured the Democratic nomination through a write-in campaign. Meanwhile, Sams, who is not currently accused of any wrong-doing, left his position as chief detective shortly after Russo鈥檚 primary election defeat.
In his order, Dayich mentioned the high burden needed to remove a public official from office.
鈥淭he District Attorney is the chief law enforcement officer of the county and he is imbued with tremendous powers and was serving in his capacity as an elected official when charges were brought against Mr. Grimm,鈥� Dayich wrote in his order. 鈥淚t is fundamental to our democracy that elected officials are permitted to serve and they should not be easily removed by Court action or by an individual who has been prosecuted by the elected officials.鈥�
The legal process is expected to move forward against Russo, who was elected in 2019, even if it continues into next year when he is out of office.