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Rain will need to avoid conflicts in transition to DA

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CANTON — Mary E. Rain’s busy schedule as a defense attorney is coming to an abrupt end as she transitions into her new job as St. Lawrence County prosecutor.

Ms. Rain, the Republican who defeated two-term Democrat Nicole M. Duve, has 16 clients she is representing in St. Lawrence County Court on felony charges. Three of those cases are scheduled for trial before the end of the year.

“The very first thing is, she won’t try any more cases in County Court,” Albany Law School professor Laurie Shanks said. “She has to make sure there is not either a conflict of interest, or the appearance of a conflict of interest.”

Ms. Rain said her plan of action is to try to resolve as many of her cases as she can through plea deals hammered out with Ms. Duve before the end of the year.

“Technically, I have until Dec. 31. Obviously, I would like to get those done a lot more quickly,” Ms. Rain said. “But it really depends on the district attorney’s office.”

Ms. Duve did not return messages seeking comment.

The district attorney-elect’s former cases that remain open after she takes office Jan. 1 will be tried by a special prosecutor, likely from Franklin County, at a cost of up to $150 an hour. One high-profile case likely to be tried by the special prosecutor involves Bobbie Jo Zeller, the Norfolk woman accused of bilking a priest and others out of some $300,000. Ms. Rain is representing Ms. Zeller in Massena Town Court on unrelated petit larceny charges.

Franklin County District Attorney Derek P. Champagne said his office has helped surrounding counties, including St. Lawrence, by providing special prosecutors when circumstances create potential conflicts of interest in the court, but within reason. Limited service is often provided for free, but Mr. Champagne said his office already has absorbed as many free cases as possible and recently has had to deny a request by St. Lawrence County Judge Jerome J. Richards for pro bono assistance.

“Judge Richards called and asked to assign six or seven more cases,” Mr. Champagne said. “I told him that we couldn’t absorb that right now, but what I could do is assign one of my assistant district attorneys and they would just bill the county hourly.”

But those added fees are something the county had not anticipated, and will further stress an already tight budget, County Administrator Karen M. St. Hilaire said.

“As with all of those unexpected expenses we usually go to contingency fund, but last year it was cut to $500,000, down from $750,000,” Ms. St. Hilaire said. “And there have been a number of things that have caused us to tap into that fund.”

Ms. St. Hilaire said an increase in St. Lawrence County jail inmates has required tapping into that dwindling contingency fund for overtime, medical and food expenses. She said the added expense of paying a special prosecutor will mean the county will have to tap into the fund balance, which she said is also low and will mean the county will have to borrow through bonds.

“We will have to bond out for additional funding, like we have for the last three years, and I see us continuing to do this for at least three more years,” Ms. St. Hilaire said. “The fund balance was at $6.5 million at the end of last year, which is an increase of $1.5 million, which is good, but not enough. And it won’t be, until we get up to about $12 million. And special prosecution is just an additional hurt on the county.”

In addition to taking over conflict-of-interest cases, a special prosecutor would go through all of Ms. Rain’s files, including pending cases in the DA’s office, Ms. Shanks said.

“And it’s not always the defendant; it’s the codefendant; it could be a witness that was represented by her,” Ms. Shanks said. “So someone is literally going to have to go through the file, identify any and all defendants and witnesses and then make a determination as to whether or not that is going to be a conflict.”

The same would have to be done for the cases of any other defense attorney she may hire from the county, Ms. Shanks said.

Ms. Rain said she has not decided who would be filling positions in her office, but she has sent a letter to the St. Lawrence County Bar Association to start finding attorneys interesting in filling positions.

“I haven’t picked anyone yet,” Ms. Rain said. “What I want to do is concentrate on hiring a staff because I want everybody up and running by Jan. 1.”

Ms. Rain said she has reached out to members of Ms. Duve’s staff and told them that if she is successful in taking over the office after the absentee ballots are accounted for and more than 100 affidavits are reviewed, she wants to consider all applicants in order to maintain continuity in the office. She received 51.8 percent of the votes on election day compared with 48 percent for Ms. Duve, according to unofficial results from the county Board of Elections.

Ms. Duve trailed by 695 votes. For her to pull ahead, she would have to take home all 178 absentee ballots yet to be counted in Canton, 75 in Gouverneur, 158 in Massena, 131 in Potsdam and 146 in Ogdensburg, in addition to picking up others from smaller communities.

The St. Lawrence County Board of Elections will begin counting the 1,146 absentee ballots at 9:15 a.m. today.

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