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Wrongly Convicted Database Record
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Charge: |
Trespassing |
Sentence: |
$125 fine |
Years Imprisoned: |
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Year Crime: |
2014 |
Year Convicted: |
2014 |
Year Cleared: |
2016 |
U.S. State or Country of Crime: |
New York |
County or Region of Crime: |
Washington |
City of Crime: |
Fort Ann |
Result: |
Judicially Exonerated |
Summary of Case: |
"Rory Russell and his codefendant Deborah Busch, who was also his girlfriend, were wrongly convicted on November 12, 2014 of misdemeanor trespassing on the property of their neighbor in Fort Ann, New York on July 13, 2014. Busch and Russell lived in Albany County, but Russell owned a home on Lake George in Washington County. Russell had an acrimonious relationship with his next-door neighbors -- Thomas Bolen and Carole Bolen -- who he believed was poisoning him and Busch by not complying with state and federal lead abatement techniques in the scraping of lead-based paint from their vacation house. Russell thought lead dust was drifting into his home and making him ill — and he had blood tests that confirmed he had elevated lead levels. The prosecution of Busch and Russell was based on the Bolens arriving at their home they saw Busch and Russell “crouching down on the porch.” Bolen yelled for them to get off his property, and Busch and Russell left. Bolen found a lead-testing kit where he saw the two had crouched. Bolen filed a complaint with the New York State Patrol, and told them he wanted Busch and Russell " “arrested and prosecuted to the fullest extent of the law.” Busch and Russell rejected a plea bargain prior to their trial. During their bench trial, Russell testified that he and Busch were on the porch for two minutes to get paint scrappings to be tested for lead. He testified, “When someone is poisoning you, you should have the right to go on that property and figure out where the poison is coming from.” Busch also testified regarding Busch being present: “She didn’t do anything but follow me. … She had nothing to do with this. We just started dating. She didn’t know there was any contentious situation." Busch testified that she and Russell had spent $12,000 in legal fees. After being convicted of trespassing by Fort Ann Town Justice James Richardson following a two day bench trial, Busch and Russell were each fined $125. After her conviction Busch blasted town and county officials for refusing to deal with the Bolen's lead problem and forcing Russell to take proactive action to protect his health and safety. Busch told a reporter, "Though I'm very disappointed in the ruling, I am much more appalled of the way we had such a malicious prosecution over really a bogus charge." Busch and Russell appealed their convictions. On June 29, 2016 Washington County Judge Kelly S. McKeighan vacated the convictions of Busch and Russell and acquitted them on the basis the prosecution introduced insufficient evidence they had committed trespassing. Judge McKeighan rulings noted their was legal precedent in New York that being on a neighbor's porch was not automatically presumed to be trespassing -- because it may be "open to the public." He noted that Busch and Russell immediately left the Bolens' property when told to do so, and the Bolens had never "personally communicated" to Busch and they had never told Russell to stay off their property. Judge McKeighan wrote: “In a free society, a balance must be struck wherein some degree of limited encroachment is tolerated in order to allow people to freely converse, while retaining for the property owner the right to revoke a person’s ability to so advance. As a practical matter, to hold, as the People suggest, would subject to threat of prosecution, any member of the public visiting a person’s porch without prior consent, the chilling effect upon our society would be intolerable." In a footnote in his decision Judge McKeighan wrote that if the State's interpretation of the trespassing statute was accepted, than "Any visiting neighbor, lost individual, office seeker, petition carrier, delivery person, postal employee, salesperson, even those seeking consent to be on the porch would be subject to a charge of trespass." With the acquittal of Busch and Russell, Fort Ann Town will be required to reimburse the fines they paid. Busch lived in Berne, New York, and at the time she was charged she was a Republican legislator representing Albany County's largely Democratic Hilltown district. In November 2015 Busch lost her bid for re-election by 200 votes and she credited publicity about the case for her loss. The day after her conviction was overturned she told reporters, “I know the needs of the Hilltowns and served them well. We lost our traction…One thing people in the Hilltowns won’t tolerate is criminal behavior." She also said, "Mr. Bolen filed a false accusatory instrument, and when you do that to someone who has a political career and professional career such as myself, you injure them and you injure them out of malice and spite." After his conviction was overturned, Russell told reporters, “Our professional reputations have been irrevocably tarnished and the expense to defend ourselves financially exhausting. This has been two years of mental distress.” He said he plans to seek the filing of charges against Thomas Bolen for lying to state troopers that he had repeatedly told Busch and Russell to stay off the property -- and it was those lies that resulted in the filing of the false trespassing charges against him and Busch." |
Conviction Caused By: |
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Innocence Proved By: |
"On June 29, 2016 Washington County Judge Kelly S. McKeighan vacated the convictions of Busch and Russell. Judge McKeighan rulings noted their was legal precedent in New York that being on a neighbor's porch was not automatically presumed to be trespassing -- because it may be "open to the public." He noted that Busch and Russell immediately left the Bolens' property when told to do so, and the Bolens had never "personally communicated" to Busch that she wasn't welcome." |
Defendant Aided By: |
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Compensation Awarded: |
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Was Perpetrator Identified? |
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Age When Imprisoned: |
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Age When Released: |
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Sex: |
Male |
Skin/Ethnicity: |
White |
Information Source 1: |
"Judge tosses trespass conviction of ex-Albany County lawmaker: Ex-legislator says she lost seat over coverage, By Amanda Fries, Times Union (Albany, NY), July 14, 2016" |
Information Location 1: |
http://www.timesunion.com/local/article/Ex-Albany-lawmaker-Fort-Ann-trespassing-8355179.php |
Information Source 2: |
"Albany lawmaker calls her conviction 'a failure of government': County legislator, boyfriend decry idling on lead issue, By Jordan Carleo-Evangelist, Times Union (Albany, NY), November 13, 2014" |
Information Location 2: |
http://www.timesunion.com/local/article/Albany-County-lawmaker-convicted-in-trespass-trial-5888944.php |
Information Source 3: |
"Busch, boyfriend convicted in Fort Ann trespassing case, By Jordan Carleo-Evangelist, Times Union (Albany, NY), November 12, 2014" |
Information Location 3: |
http://blog.timesunion.com/localpolitics/16193/busch-and-boyfriend-convicted-in-fort-ann-trespass-case/ |
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Innocents Database Created and Maintained by Hans Sherrer innocents@forejustice.org