Judge Slams Conflicted Prosecutor, Boots Case

Exclusive: Judge takes Soares off steroids case
The Albany Times Union by ROBERT GAVIN Staff Writer - November 15, 2010

ALBANY, NY -- A judge Monday dismissed the Albany steroids case against five pharmacy operators from Florida, ruling that the alleged conspirators' federal civil lawsuit against Albany County prosecutors has created a "conflict of interest" that merits removing prosecutors from the case. In response, District Attorney David Soares blasted Judge Stephen Herrick's ruling, saying it gave defendants an easy path to get rid of a prosecutor. In a six-page ruling, Herrick decided the 33-count indictment against the owners of the former Signature Compounding Pharmacy in Orlando can still be brought again in Saratoga County. He named Saratoga County District Attorney James Murphy's office as a special prosecutor. Murphy could not immediately be reached for comment. "The court finds a demonstrable potential for prejudice and a conflict of interest that the court cannot ignore," Herrick wrote. "When an impermissible conflict of interest has been established disqualification of the district attorney's office becomes necessary to prevent the undermining of the public confidence in our criminal justice system. In the present matter, the court has found a conflict of interest sufficient to warrant dismissal of the indictment. Likewise, the court finds that this demonstrated conflict of interest warrants disqualification of the Albany County district attorney's office from further prosecution of this matter." Soares fired off a statement blasting the ruling. "Judge Herrick's decision is a get out of jail free card for every criminal defendant in New York state,' Soares stated. "His message to defendants is: 'if your DA is being too tough on you, sue him, and you can get a new one.' The court's decision undermines the criminal justice system and the DA's who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick's decision and to close this dangerous loophole that he has created." The decision marked the second time Herrick has tossed an indictment in the steroids case, which started in February 2007 with a raid on the pharmacy. The case linked elite professional athletes to performance-enhancing drugs that were allegedly supplied through the Orlando pharmacy. At least 17 guilty pleas were later secured by prosecutors.

Herrick dismissed the indictment against the remaining defendants in September 2008 finding prosecutorial missteps were made in grand jury proceedings. An appeals court would later uphold his decision -- but allowed Albany County prosecutors to once again present the case to a grand jury. Prosecutors represented the case. In June, a grand jury indicted ex-pharmacy operators Naomi Loomis, her husband, Robert "Stan" Loomis; his brother and former Signature pharmacy operator Kenneth Michael Loomis; former business manager Kirk Calvert and former business manager Tony Palladino. But the defendants also filed a federal lawsuit in Florida against Soares, Orlando police and other law enforcement officials the next month seeking millions of dollars, claiming false arrest and malicious prosecution. And a federal judge, Gregory A. Presnell, later upheld the lawsuit. He stated that Soares "not only participated in, but directed (assistant District Attorney Christopher) Baynes and others to violate plaintiffs' Fourth Amendment right to be free from unlawful arrests," adding, "Rather than wait for any documentary evidence that plaintiffs had committed a crime in New York and comply with the very limited requirements of federal and state extradition statutes, Soares decided to orchestrate plaintiffs' arrests without valid New York warrants and, in the process, garner significant media attention." In his decision Monday, Herrick stated the judge's decision was a "scathing analysis" that "chronicled the alleged actionable conduct by members of the Albany County district attorney's office with regard to the criminal case defendants." Herrick stated that while defendants are not allowed to "manufacture a conflict to create a tactical advantage," the civil suit against Soares had survived a motion to dismiss it and is scheduled for trial before Presnell in Florida. The indictment against the defendants alleged steroids were sent from Florida to Colonie, Cohoes and Albany in 2005 and 2006. It said the defendants used affiliates such as Palm Beach Rejuvenation in Jupiter, Fla.; Infinity Longevity in Deerfield Beach, Fla.; MedXLife in Orlando; Oasis Longevity & Rejuvenation in Delray Beach, Fla. Cellular Nucleonic Advantage in Houston. Defense attorney E. Stewart Jones, who represents Kenneth Loomis, Calvert and Palladino, said he expects to meet with Murphy. He said he hopes the Saratoga County prosecutor will determine the case does not need to be tying up courts in New York state. "The case should never have been prosecuted in New York -- if there was any offense at all, it should have been prosecuted in Florida," Jones said. "New York should be done with these cases ... it's time to move on."