Eric Schneiderman may get temporary nod to probe fatal confrontations with cops

ALBANY -- Gov. Andrew M. Cuomo may provide state Attorney General Eric T. Schneiderman temporary authority to investigate fatal confrontations between police and civilians until broad changes in criminal justice procedure occur, administration officials said.

"The law is broken. It has to be fixed," Schneiderman said Monday. "You have to recognize the loss of confidence in the process."

Cuomo is reviewing Schneiderman's request "as we pursue this broader approach that seeks to ensure equality and fairness in our justice system," said Cuomo spokeswoman Melissa DeRosa.

"When people begin to lose faith in the criminal justice system, reform must follow," DeRosa said. Cuomo has proposed better police training, new rules and procedures for grand juries and prosecutors and other aspects of criminal justice statewide as a result of the Garner case.

Schneiderman's call to take any new police cases away from local prosecutors comes after a grand jury on Staten Island decided against charging a New York City police officer in the apparent choking death of Eric Garner in July. Garner's last words -- "I can't breathe!" -- have become a rallying cry in demonstrations nationwide.

The decision in a secretive grand jury process that dates to 17th century British law sparked renewed protests over how police deal with African-Americans following a long string of tragedies over decades.

The Garner decision came days after a Missouri grand jury decided against charging a police officer in the fatal shooting of another African-American suspect, Michael Brown, and weeks after Akai Gurley was shot by police in the dark stairwell of a Brooklyn apartment last month. The Gurley case is expected to go to a grand jury.

State Division of Criminal Justice Services data shows just 3 percent of all felonies brought to grand juries statewide result in no charge, or "no bill."

"We can't continue to see these investigations go into the black hole of the grand jury system," said Brooklyn Borough President Eric Adams, a former state senator and New York City police officer. In other states, an elected district attorney who works closely with police daily can be replaced by a special prosecutor from another state office or appointed by a judge to avoid the appearance of conflicts of interest, said Professor Peter A. Joy, of Washington University Law School in St. Louis.

"I think there is every reason to have a special prosecutor in place . . . in instances when there is a claim of excessive force by police," said Joy, who researches legal ethics, criminal justice, and trial practice.

Joy said the grand jury could be replaced in such cases by a judge in a preliminary hearing where a defense attorney could cross-examine witnesses in open court.

But the secretive grand jury process also has the advantage of allowing grand jurors to avoid reprisal by suspects and helping prosecutors better examine evidence to see if charges should be leveled publicly, Joy said.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.