July 13, 2015 4:00 pm


Police Unions Protest Cuomo Tapping State AG to Probe Fatal Encounters


Will Examine Deaths of Unarmed Civilians


PATRICK J. LYNCH: Can’t indict to please public.  

Responding to protests raised when a Staten Island grand jury declined to indict a police officer in the death of Eric Garner, Governor Cuomo signed an executive order July 8 giving Attorney General Eric Schneiderman the authority to appoint himself a special prosecutor in cases of civilians who die at the hands of law-enforcement officers.

The order covers cases in which the civilian was clearly unarmed and those in which it was not clear whether the person was armed. Police unions have criticized the plan as setting up a parallel, unfairly harsh system of justice for police officers.

“Given the many levels of oversight that already exist, both internally in the NYPD and externally in many forms, the appointment of a special prosecutor is unnecessary,” Patrolmen’s Benevolent Association President Patrick J. Lynch said in a statement.

‘Pressure to Indict’

“The rules of law apply regardless of who is investigating a case. But our concern is that there will be pressure on a special prosecutor to indict an officer for the sake of public perception, and that does not serve the ends of justice.”

Louis Turco, president of the Lieutenants’ Benevolent Association, said the order was unnecessary, agreeing with Detectives’ Endowment Association President Michael J. Palladino that Mr. Cuomo already had the authority to appoint a special prosecutor. “This executive order implies that publicly-elected District Attorneys are incapable of handling these high-profile cases,” he added.

Edward D. Mullins, president of the Sergeants Benevolent Association, told Capital New York that the order sent a message to police officers that they were not trusted.

DIA: Cuomo ‘Grandstanding’

The Detective Investigators’ Association, which represents investigators in District Attorneys’ Offices, said its president, John M. Fleming, “felt the rush to action was more about a Governor grandstanding than a politician looking to find solutions to some very tough social issues.”

Mr. Cuomo, however, said the order “should go a long way towards restoring people’s faith in the system of criminal justice and their trust in government.” He spoke at a Manhattan press conference with family members of some New Yorkers who died, including Gwen Carr, Mr. Garner’s mother.

The Justice Committee, an offshoot of Communities United for Police Reform that works with families of New Yorkers who died in confrontations with police, called the order “an important step in the right direction to ending the systemic conflict of interest that exists for local DAs in cases of police killings of civilians and addressing the crisis of police violence in our state and country.”

One of the arguments advocates cite for a special prosecutor is the dependence of DAs’ offices on evidence collected by police, which the advocates argue predisposes prosecutors to clear officers of wrongdoing.

Perception a Problem

The executive order stated that “public concerns have been raised that such incidents cannot be prosecuted at the local level without conflict or bias, or the public perception of conflict or bias.”

Mr. Cuomo said that he personally did not believe District Attorneys were biased but that the order was aimed at reassuring people who were less-convinced.

Constance Malcolm, whose 18-year-old son Ramarley Graham was shot to death by a Bronx police officer pursuing him on suspicion that he had narcotics, said at the press conference that bias was evident in his case: the DA’s office had evidence, she claimed, but its indictment was dismissed on a technicality. She said there was indeed bias in the DA’s offices and, “in Eric Garner’s words, ‘It stops today.’’’

Earlier this year, Mr. Cuomo proposed legislation that would have eased grand-jury secrecy rules in police-involved shootings and created an independent monitor who could recommend appointment of a special prosecutor in cases where an indictment was not forthcoming.

Stymied by Senate GOP

But the proposal was one of many initiatives that went nowhere in the legislative session that ended last month. It had faced stiff opposition from State Senate Republicans, who opposed any changes to the system for investigating police shootings.

“That was a radical departure from a grand-jury process that has existed for almost like 200 years,” Senate Majority Leader John Flanagan said of Mr. Cuomo’s proposal. “We...did not support legislation that would have provided a monitor or something of that nature.”

The Governor said he will make another try for a permanent law next year. Executive orders expire after a year, he noted.

Ms. Carr told the New York Times that the executive order didn’t go far enough because it did not authorize Mr. Schneiderman to investigate all police-related deaths. “But it is a step in the right direction,” she said.

Mr. Garner was the first in a series of unarmed black men around the nation over the past year to die in confrontations with white police officers.

Protested ‘Loosie’ Arrest

On July 17, 2014, police sought to arrest him for allegedly selling loose cigarettes. Mr. Garner refused to submit to being handcuffed. That’s when he said, “It stops today,” as shown in a bystander’s cell-phone video. Officer Daniel Pantaleo threw his arm around Mr. Garner’s neck and brought him to the ground as he shouted, “I can’t breathe! I can’t breathe!”

Some observers believed Mr. Pantaleo used a chokehold, which is banned by the NYPD; Mr. Pantaleo told the grand jury it was a different hold. The Office of Chief Medical Examiner said Mr. Garner died of chest compression (from his time on the ground) and a chokehold, as well as obesity and general ill-health.

An ambulance was called to the scene, but Emergency Medical Technicians did not offer Mr. Garner any treatment beyond checking his pulse. He was left lying on the ground for six minutes with cops hovering nearby, then loaded into the ambulance, at which point he was given oxygen. Six minutes after that, the technicians reported that he was in cardiac arrest. He was pronounced dead of a heart attack in the Richmond University emergency room.

Non-Indictment Fallout

The announcement in December that the grand jury had decided not to indict Mr. Pantaleo sparked anger in many people who believed the video clearly showed the officer choking Mr. Garner. Weeks of demonstrations followed.

Advocates complained that the decision made no sense. Then-Staten Island District Attorney Dan Donovan, accused of steering the grand jury to a result that would please his mostly-white constituency, said the rules on grand-jury secrecy prevented him from offering an explanation.

Civil-rights organizations and Public Advocate Letitia James sued in an effort to make the grand-jury proceedings public. They lost at the trial level, but that ruling is now being appealed. Meanwhile, various advocacy groups proposed legal changes that would open grand-jury deliberations to public scrutiny. That’s when Mr. Cuomo offered his legislation.

Mr. Schneiderman proposed last December that Mr. Cuomo appoint him special prosecutor in cases of death at the hands of police, but the Governor did not acknowledge that call until his own legislation failed. The Attorney General announced the day after the press conference that he had created a special unit to handle such cases.

Own Political Concerns?

Political observers questioned whether Mr. Schneiderman, who is considered a possible gubernatorial candidate in 2018, might pull his punches in order to avoid alienating law-enforcement unions.

A spokesman replied by sending a statement in which Mr. Schneiderman said, “My office will handle these cases with the highest level of care and independence, while we continue to work with lawmakers, District Attorneys, advocates and other experts in criminal-justice reform on a long-term legislative solution to this critical matter of law and policy.”