GloucesterTimes.com, Gloucester, MA

October 22, 2008

Judge: Case vs. Goldin flawed on several counts

By Richard Gaines

The judge who dismissed attempted extortion and improper solicitation charges against environmental activist Stevan Goldin yesterday faulted the construction of a case built by a police detective and validated by a court clerk — not a grand jury.

In a two-page written decision, District Court Judge Joseph Jennings explained that the case against Goldin was full of holes, failed to deliver what it promised in evidence, and contained exculpatory material.

It is unusual for a white collar felony case such as the failed prosecution of Goldin, which charged a well-known and active opponent of real estate development, without a presentation to and vote by a county grand jury, according to criminal defense lawyers. Conviction on all charges could have put Goldin in prison for five years with a $5,000 fine.

It was not clear yesterday precisely who made the decision to proceed with the prosecution.

Neither Steven Mizzoni, the police detective who investigated and built the case against Goldin, or city Police Chief John Beaudette returned phone calls, and police prosecutor John Jenkins could not be reached.

Goldin's lawyer, Bradford Keane, said it was "premature" to discuss the unusual path in the development of the case, "but it begs the question why a police officer would undertake a months-long investigation on behalf of big business developers to silence someone who felt the developments were injurious to the community."

Keane added that "it is very odd that this prosecution arose based upon what I would consider the judgment calls of a police officer, who has a skewed, if not a defective understanding, of constitutional law."

He said Goldin was "weighing his options" for filing a civil suit.

Stephen O'Connell, spokesman for Essex County District Attorney Jonathan Blodgett, declined to answer written questions sent to his office by the Times about the case — including how often white collar felony cases are brought outside the grand jury system, whether Blodgett was asked and declined to bring Mizzoni's investigation to a grand jury, and whether the district attorney intends to appeal the judge's dismissal of the case.

"We are not going to comment on this matter while it is under review," O'Connell said.

Based on Mizzoni's report, court clerk Margaret Crateau in June found probable cause to prosecute Goldin for attempting to extort $375,000 from builder Jay McNiff and an uncertain sum, roughly $100,000, from Gloucester Crossing developer Sam Park.

Crateau said the law does not allow her to hold a probable hearing on the extortion charges. Instead, she said she did what she was required to do — reviewed the police investigation in the "most favorable" light, before agreeing that the case should be prosecuted.

At that point, it was handed to the district attorney's office.

Crateau said she was allowed to — and did hold — a probable cause hearing on the misdemeanor charges of illegal solicitation.

Crateau said she guessed that the police consulted with the district attorney's office before asking her to find probable cause against Goldin, but "I'm not sure."

Had the district attorney taken the case, it would have been presented to a grand jury where indictments are voted.

Jennings, who announced his decision from the bench Monday, released his memorandum of decision to the clerk's office early yesterday afternoon.

He agreed with the legal reasoning in Goldin's lawyer's brief that the probable cause finding by Crateau based on the written report of the investigation by police Detective Mizzoni described Goldin "exercising his First Amendment petitioning rights" rather than attempting to extort developers Jay McNiff and Sam Park.

Goldin was described in Mizzoni's report, which was validated by Crateau in June, as demanding money in negotiations over a condo project McNiff is planning for the former Cape Ann Anchor and Forge property and the Gloucester Crossing shopping center Park is planning off the Route 128 Blackburn Circle.

"The incidents portrayed as extortionate demands were negotiations for 'linkage' payment and 'mitigation' that (Goldin) recounted in open sessions of municipal agencies during his characteristically dogged studies and harsh critiques of the Park and McNiff projects," Keane wrote as Goldin's attorney.

Assistant District Attorney Kate Hartigan, meanwhile, never filed a brief in response to Keane's. But in the hearing, which Judge Jennings held on the defense motion to dismiss the charges, Hartigan did argue — as Keane had predicted — that the nature of Goldin's approaches to the developers were questions for the trial jury to answer.

Jennings disagreed. He dismissed the misdemeanor charges first, noting that, at the time he was soliciting for his Wingaersheek Fund, a 501(c)3 charity, Goldin had not been made aware that the Internal Revenue Service had not validated the charity. The notice arrived one week after the second solicitation.

"The notice and the mailing are defective," the judge wrote.

Then, he turned to the felony charges of attempted extortion.

Although officer Mizzoni's report states that he had received information from other developers (beyond McNiff), he only identified Sam Park as one complaining of the defendant soliciting monies.

"Mizzoni further reports that Park provided 'documentation,' however, it was not identified or otherwise explained," the judge wrote.

He then dealt with the issue of Goldin's intentions.

While implying that the case seemed solid on one element — defined by the attempted extortion statute used against Goldin — Jennings went on to write that according to McNiff's own sworn affidavit taken by Mizzoni, all Goldin was doing was attempting to incent McNiff to make a contribution to the Wingaersheek Fund.

Quoting McNiff's account of his dealing with Goldin, the judge wrote that he agreed to "refrain from exercising his First Amendment petitioning rights if there were a mutual agreement to fund linkage payments for arguably the public welfare."

In his affidavit, McNiff quoted Goldin as offering that "you and I both can be board members (of the Wingaersheek Fund) and we'll talk about who should be on this board, but basically it should go to something worthwhile such as something to do with the environment."

Keane characterized Jennings' ruling as "constitutional law at its most basic form."

"If somebody decides that a development is injurious to the area or community," he said in a telephone interview yesterday, "silencing an activist is the most blatant form of unconstitutional action that the government can take."

"This reaffirms my faith in an independent judicial system," Goldin told the Times after the judge's ruling Monday. "It protects us from arbitrary government activity, which is the foundation of the democratic political system.

He said the "same independent review ... is what gives citizens the right to appeal disastrous projects."

"Town and city boards are often complicit with developers whose plans are railroaded through over neighborhood opposition," Goldin said. "That's why they went out to get me. They thought they could intimidate people."

Richard Gaines can be reached at rgaines@gloucestertimes.com