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No convictions, but officials say prosecutor unit boosts trust

From left, Gwen Carr, mother of Eric Garner,

From left, Gwen Carr, mother of Eric Garner, Constance Malcolm, mother of Ramarley Graham, and Valerie Bell, mother of Sean Bell, in Manhattan on Oct. 17. Credit: Marcus Santos

ALBANY — Four years ago, New York established a special prosecutor’s unit to investigate civilians’ deaths at the hands of law enforcement.

Seventeen cases have been reviewed and closed by the unit, which operates from the state attorney general’s office, with a handful or more pending. The deaths involved firearms, Taser guns and car crashes.

Not a single case has resulted in a conviction.

State lawmakers and the lawyer who initially ran the special prosecutor’s office say it’s not surprising given the individual cases and the difficulty of persuading a jury to convict police officers. They said the goal of the initiative primarily was to restore transparency and trust in a process that had become tainted in the public’s view.

“It might change the degree to which we have doubts in the system, but I don’t know it will cause any more convictions,” said Assemb. N. Nick Perry (D-Brooklyn), sponsor of a bill to make the investigative office permanent. “The most the special prosecutor’s office will do is create more public trust and more transparency for the families. That’s the most the law can do.”

The lack of convictions is noticeable, some said.

"The results are not good, from the perspective of representing victims, in terms of holding police accountable," said Sanford Rubenstein, who has represented decedent's families in two cases investigated by the special prosecutor's office. "But it's a positive step forward. It maintains a certain degree of independence in prosecutions — if not for anything else, the public’s perception of fairness."

"We haven't seen the level of accountability we desire," said Monifa Bandele, vice president of MomsRising, a group that has pushed for change. She said the lack of convictions is "problematic" as well as the lack of indictments in some cases, underscoring the need to strengthen oversight.

In contrast, a top Republican said the four-year record of the office raises questions as to whether it was needed at all.

“Like any civilian death, the kinds of cases now under SIPU’s jurisdiction deserve the utmost scrutiny. But the notion that Albany can take over investigations and do a better job was always ludicrous and insulting to local prosecutors,” Assembly Minority Leader Brian Kolb (R-Canandaigua) said, using the acronym for special prosecutor’s office. “After four years, the results certainly raise questions as to the need for such a dramatic step in the first place.”  

Most seem to agree the new office has improved transparency, saying the investigation and process is far better than in the police-related deaths of Eric Garner and others, which sparked the creation of the office. But they also call for changing the legal standard for evaluating a police officer's use of force in confrontations with civilians.

“I think it’s a system we should keep, but it’s not a cure-all,” said Alvin Bragg, who was the original head of the special prosecutor's office. “Having a special prosecutor day in, day out, the transparency is a big piece. Even when there are no charges (filed in a case), there’s a real value add.... . But, additional measures, such as amending the legal standard for the use of force, need to be taken."

Bragg, who plans to run for Manhattan district attorney, said those changes include making clear to police they must "exhaust all other alternatives" before using "lethal force." 

"That would make a difference in charging decisions," he said.

Families who have had to meet with the special prosecutor have been shocked — in a good way — at how much information is provided, Bandele said. 

"So many families were comforted" to be able to hear the details of the investigations and the legal strategy, she said. Previously, they were shut out. But there still is pain and disappointment when no indictment or conviction results, she said.

The office was created in 2015. It was born of compromise.

Activists and Democratic state legislators wanted a new law to specifically block local district attorneys from handling cases of civilian deaths involving law enforcement. They said local prosecutors face an inherent conflict of interest in trying to investigate and prosecute the police officers they work with on regular cases daily.

The State Senate, then controlled by Republicans, opposed the proposal, siding with the state District Attorneys Association. Stalemated, Gov. Andrew M. Cuomo sidestepped the Legislature by issuing an executive order to create a special prosecutor’s office housed within the state attorney general’s office.

But there were compromises within the compromise. Chiefly, the special prosecutor’s office has jurisdiction only when the civilian was unarmed and when death resulted. Severe or crippling injuries don’t qualify. Further, the executive order is short on defined legal terms, making it fuzzier than a typical state statute, Bragg said.

More obviously, an executive order can be undone by the next governor, meaning the office has no permanent grounding.

Since its launch, the special prosecutor’s office has reviewed hundreds of cases but asserted jurisdiction in relatively few.

Just one resulted in charges.

It involved an off-duty police officer shooting and killing Delrawn Small in East New York in 2016, following an alleged road rage confrontation. The officer, Wayne Isaacs, was charged with murder and manslaughter but acquitted by a jury.

In another case, the office sought to level charges in the death of Andrew Kearse after he died of cardiac arrhythmia while under arrest and being transported by a Schenectady police officer in a patrol car. The attorney general’s office said the police officer failed to respond appropriately to Kearse’s complaints of dizziness and difficulty breathing. But a grand jury decided not to indict the officer.

The family of Kearse, who lived in the Bronx and was visiting Schenectady, later received $1.3 million to settle a civil rights lawsuit, according to published reports.

No charges were filed in the one Long Island case to be handled by the special prosecutor.

Walter Perez died in 2017 after Nassau County police shocked him 13 times with stun guns.

Letitia James, a Democrat who was elected attorney general in 2018, issued a report in February saying the use of force was justified because Perez refused to be taken into custody, repeatedly challenged officers to a fight, punched one cop and bit the hand of another.

James, however, did issue a set of recommendations to Nassau police — including to review its methods for defusing incidents with people in mental health crisis.

Debra Cohen represents the family of Jonathan Maldonado, who died in Westchester County after a Taser was used on him by police. No charges were filed and a medical examiner attributed his death to the ingestion of fentanyl and heroin shortly before police arrived — a finding the family is challenging in a civil lawsuit. Cohen said the special prosecutor's office needs to go further when making recommendations in the aftermath of a case.

"The main role these attorney general investigations could play, beyond bringing an investigation, is to provide an objective, independent and thorough analysis from the law enforcement best-practices perspective that shows what police may have done wrong even if it doesn't rise to the level of criminality," Cohen said. "If they don’t use their pulpit to educate the public and the police as well, it’s a wasted opportunity."

The attorney general's office said SIPU is committed to "thorough and exhaustive" examinations of every case it handles.

James' spokeswoman Delaney Kempner said: "The Special Investigations and Prosecutions Unit is committed to executing thorough and exhaustive investigations of every case that falls under our jurisdiction ... We will continue to follow the facts of every case we investigate and work tirelessly to provide the transparency and accountability that all our communities deserve."

A Cuomo aide, while not commenting on the results of the special prosecutor's investigations, said the initiative helps restore faith in the system.

" … the special prosecutor has investigated dozens of cases and it has resulted in far more transparency and accountability with these tragic events," Cuomo aide Jason Conwall wrote in an email.  

“You can’t guarantee a conviction. That would not be due process nor justice for either side,” said Sen. Jamaal Bailey (D-Bronx), a key Democrat in the push for a raft of criminal-justice changes implemented over the last four years. “Nothing can bring a loved one back. But you want to be able to say what happened, why it happened and that we had a fair day in court."

Perry and Bailey want to establish the office by law, so that it’s not subject to the policy positions of a governor. Perry also believes its jurisdiction should be expanded to include cases when the victim is armed, among other things. Cuomo has proposed turning his executive order into law, but Democrats in the Legislature said the governor's version doesn't go as far as Perry's. Negotiations failed to produce an agreement before the Legislature adjourned in June, ensuring lawmakers will revisit the issue in 2020.

The last thing Perry wants is to go back to the old system. The new one, he said, has had a real impact even if it hasn’t produced any convictions.

“I think it’s had impact as to the public psyche,” Perry said, “to the public view of how the system is handling police cases where deaths occur.”

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