By Neale Gulley
Niagara Gazette
NORTH TONAWANDA —
State Supreme Court Judge Richard Kloch on Wednesday defended the decision of North Tonawanda City Court Judge William Lewis last week to accept a plea deal that spared the daughter of a North Tonawanda councilwoman a DWI trial.
“When you have a district attorney whose job it is to prosecute the law, when they come to an agreement with (the defense) and a judge says ‘no, I’m not going to allow that to happen,’ doesn’t that judge put himself in the shoes of the prosecutors?” Kloch said. “Excuse me, we haven’t even had a trial and the Constitution of the United States says people are innocent until proven guilty.”
Sara Donovan, 23, daughter of Alderwoman-At-Large Nancy Donovan, maintained her innocence in court and, under the deal, did not have to answer charges related to driving under the influence of alcohol.
Instead she agreed to two vehicle and traffic tickets and was ordered to attend a victim’s impact panel by Niagara County District Attorney Michael Violante in a deal agreed to by her attorney.
But that’s after police documents state Donovan hit two parked cars on Payne Avenue while on her way home from a bar on Webster Street around 1 a.m. July 11, registering a 0.13 percent blood alcohol content.
Lewis accepted the plea deal — which he said is rare but not unprecedented — though Kloch suggested rejecting it would have been more uncommon than Violante’s offer to drop the DWI charge in the first place.
“A judge should rarely if ever deny a plea because otherwise he’s buying into an interest in the litigation,” Kloch said.
Central to that theory is the fact that the case didn’t go to trial and therefore Lewis could not be the arbiter of all the facts surrounding the arrest. In cases resolved using plea deals, it is the district attorney who weighs such evidence.
In essence, according to Kloch, because the DA made no case for Donovan’s guilt, Lewis was bound to presume her innocence and accept the plea.
The reasons for the deal are required by law to be included in court, and they were. DWI prosecutor Ted Brenner listed them on a plea slip: that Donovan has never before been arrested, that the damage she caused was covered by her insurance and that her level of intoxication was 0.13. Since then, Lewis has also disclosed that prosecutors were worried Donovan could lose her license as a certified public accountant and thus the punishment would have been too harsh.
Other DWI experts, including a former Erie County prosecutor specializing in DWI, have said the plea Donovan received was extremely rare.
In a statement released Wednesday, Violante maintains the deal he brokered last week with prominent attorney and one-time Niagara County GOP party boss Henry Wojtaszek, who represented Donovan in the case, served “the interest of justice.”
He did not address what many have suggested are undertones of political influence on the part of Wojtaszek, a fellow Republican who supported Violante in his bid for the DA’s office while chairing the party — and who is simply a well known local figure.
Kloch also noted Wojtaszek is legally bound to seek the best possible outcome for his client. Contact between defense lawyers and the district attorney’s office is common in such cases.
“If the fix was in she would have never been charged,” Kloch said. “(The police) did their job and (Wojtaszek) obviously did a good job and said the right words and got Violante to agree to this deal. That’s what he’s supposed to do. If he doesn’t he can be held accountable for not doing his job.”
In the statement, Violante defends the arrangement he authorized.
“Much has been said and written of my decision in the case involving Sara Donovan,” his statement begins. “Cases involving DWI are always taken very seriously by this office, especially those involving a property damage crash. And while I am required to administer justice evenly, I must review all of the relevant facts surrounding an arrest and treat each case individually and each person as an individual.
Plea offers such as the one involved in this case have occurred in the past and may very well occur in the future where a disposition outside the usual and common practices serve the interest of justice.”
Kloch shed light on the range of considerations judges and district attorneys must weigh, providing a hypothetical example of a man whose wife is diagnosed with a terminal illness, who seeks refuge in a bar, drinks to the brink of a DWI but is sentenced and loses his job as well as health care for his dying wife.
“You don’t want the DA to have the ability to take a look at that? Do you want to cut out the human element in every single case? Are we monkeys? Or are we supposed to use out hearts somewhere along the way?” he said.
He said it’s likely the publicity surrounding this case will likely already have a chilling effect on such deals being offered in the future.
