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Judge: DA's office must pay $5,000 fine for contempt

The York Dispatch

Wednesday August 05, 2009

By Elizabeth Evans

The York County District Attorney’s Office must pay a $5,000 contempt-of-court fine for refusing to divulge the name of a confidential informant in a drug-dealing case, a county judge ruled on Tuesday.

District Attorney Stan Rebert said taxpayers will not be on the hook for the five grand.

“Ultimately, I guess I pay the fine,” he said.

But first, prosecutors will appeal the ruling, Rebert said.

Rebert said he’s unsure if the appeal will go directly to the state Superior Court, or if his office will first file a motion asking Common Pleas Judge Michael J. Brillhart to reconsider his ruling.

Rebert acknowledged the judge could have ordered him — and other prosecutors — to serve time in county prison.

“We were prepared for that,” he said. “We had a notice of appeal typed and ready to go.”

The criminal case in question was that of defendant Douglas McClain Jr., 27, of Baltimore, who was charged with marijuana possession with intent to deliver, driving with a suspended license, and prohibited offensive weapons. Prosecutors said McClain was accused of possessing a pound of pot.

What happened: According to court records:

On June 5, Brillhart acted on a defense request and ordered prosecutor David Maisch to provide the defense the name of the confidential informant who gave police information about McClain.

Maisch asked the judge to reconsider, but Brillhart refused.

On July 14, the District Attorney’s Office refused to obey the court order.

The next day, defense attorney Shawn Dorward of Harrisburg asked the judge to throw out the case against McClain, but the judge refused that request as well.

On July 15, prosecutors withdrew the charges against McClain with prejudice, meaning they cannot refile. Rebert said that was his decision, and one that disappointed him.

Brillhart said he scheduled Tuesday’s 3:30 p.m. contempt hearing to determine what sanctions to impose.

The hearing was brief, with Rebert, Maisch and senior deputy prosecutor Tom Reilly each insisting he was responsible for the decision.

“(Maisch) acted under my direction,” Reilly told Brillhart. “I made the decision, judge.”

“This is my case … this is my responsibility,” Maisch said.

But Rebert trumped his prosecutors by telling the judge, “The buck stops here.”

Safety at issue: In handing down the sanction, Brillhart said prosecutors “at no time” advised him “of any reasons for non-compliance.”

Outside the courtroom, Rebert and other prosecutors said they had two reasons for refusing to disclose the confidential informant’s name.

“The initial reason was (the informant’s) safety,” Rebert said.

The second reason is that prosecutors believe Brillhart erred in finding them in contempt, he said.

In most drug cases, the names of the confidential informants are never brought up at trial, according to first assistant district attorney Jeff Boyles.

And if a defense attorney wants to obtain an informant’s name, he must show that the identity of the informant is relevant to the case, Boyles said.

Brillhart never had the defense go through that process, prosecutors said.

‘Highly unusual’: Rebert said it’s rare for York County prosecutors to be held in contempt of court.

“It’s highly unusual,” he said. “I’ve never known it to actually happen. Certainly, it’s been threatened, but I’ve never seen it happen.”

It’s also highly unusual for a prosecutor to refuse a judge’s order, he said.

“It doesn’t usually get to this point,” Rebert said. “There’s usually some kind of accommodation that can be made.”

The law requires prosecutors to turn over their evidence to the defense. But Rebert characterized this case as an exception.

Dorward, the defense attorney, was in trial on another matter and could not immediately be reached for comment.

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