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Appeals court revives journalist's suit over harassment charges

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Appeals court revives journalist’s suit over harassment charges

  • Journalist given chance to show DA acted in bad faith in bringing 11 prosecutions.

June 5, 2003 — A federal appeals court in New York (2nd Cir.) on Monday gave freelance journalist Richard Kern another hearing in federal court so he may present evidence supporting his claim that he was prosecuted in bad faith by the Erie County District Attorney Frank Clark.

The appeals court vacated the judgement of a federal court, saying the federal court erred in dismissing Kern’s complaint that Clark prosecuted him unfairly. The appellate court told the lower court to hold a hearing to resolve the disputed issue of whether the prosecution was brought in bad faith.

Kern’s case goes back to charges filed in June 2001 against him by Clark based on allegations that Kern harassed Buffalo Housing Authority Director Charles Flynn. Clark charged Kern with harassment, aggravated harassment and stalking. This was the 11th prosecution against Kern in the last four years for various harassment charges involving public officials. Most of Kern’s cases have been dismissed.

Kern allegedly stalked Flynn outside his home, left harassing messages on Flynn’s answering machine and during personal encounters called Flynn “a disgrace to the community and a liar.”

Kern maintains that he was working on a story. At the time, Kern was writing extensively on housing issues and city employees violating the law that required them to live in Buffalo by residing outside the city.

Kern has fought the charges in state court, but his attorney also sought an injunction in federal court against further prosecutions. Cases in both courts have proceeded simultaneously.

“I hope this will focus more of public attention on the district attorney Frank J. Clark, III, for his violation of his oath of office,” Kern said. “The city governance is highly disrespected and this is symbolic of problems that need to be discussed.”

Michael Kuzma, Kern’s attorney, said that this decision shows the district attorney’s office that journalists can seek refuge in the federal courts and that the First Amendment is alive and well.

“This case has a chilling effect on Mr. Kern and other journalists because they don’t know if the D.A. will prosecute me for attending a meeting,” Kuzma said. “Who will it be tomorrow? This is a strong message that the penal law should not be used as an instrument of oppression.”

Clark said he had no comment on the cases.

(Kern v. Clark, Drmacich and Zavah; Media counsel: Michael Kuzma; Buffalo, N.Y.) LG

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