New York Attorney General Wants To Take Police Shooting Cases From Prosecutors

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Pantaleo's chokehold led to Eric Garner's death

The public has lost confidence in District Attorneys to prosecute police shooting cases.

This lack of public trust now drives New York’s highest prosecutor, the Attorney General, to ask that he be granted power to take over such cases. It is an unusual request for a police shooting case; but not for civil rights cases.

The request in a change of authority came from national protests after the failure of a Staten Island, N.Y., grand jury to indict White police officers, including Daniel Pantaleo, involved in the choke-hold death of Eric Garner, an unarmed, Black man. President Barack Obama pledged over $77 million for police body cameras, better police training, and a Federal civil rights investigation by U.S. Attorney General Eric Holder.

New York Attorney General Eric Schneiderman wants to take-over any New York cases involving police officers shooting a civilian. In a Dec. 8 letter to New York Gov. Andrew Cuomo, Schneiderman asked to investigate and prosecute New York’s police shooting cases.

Under Executive Law, Section 63, Gov. Cuomo has the power to place the state’s Attorney General over any of New York’s District Attorneys on any criminal case. Under this authority, Schneiderman’s office could investigate any police shootings resulting in the death of an unarmed civilian bypassing the local District Attorney.

The local District Attorney’s office relies heavily on police to investigate, testify, and provide evidence in criminal cases every day. That working relationship has undermined public confidence in the District Attorney to prosecute police “especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a trial by jury,” Attorney General Schneiderman wrote.

In the police shooting death of Michael Brown, in Ferguson, Mo., the grand jury failed to indict police officer Darren Wilson. Instead of charging Wilson outright, St. Louis District Attorney Bob McCulloch convened a grand jury to decide if criminal charges should be brought against Wilson.

In a move different from how he prosecutes other criminal cases, McCulloch presented evidence for and against Officer Wilson. In the Eric Garner case, District Attorney Donovan chose a similar maneuver, presenting evidence for and against New York City police officer Daniel Pantaleo. Presenting conflicting evidence to a grand jury undermines chances for an indictment.

Additionally, assistant district attorneys working with McCulloch gave grand jurors an outdated copy of Missouri law. The outdated version stated that all was required for Officer Wilson to use deadly force against Michael Brown is a “reasonable belief” that there was a threat, as reported by Lawrence O’Donnell of MSNBC.

The U.S. Supreme Court made clear in a 1985 Memphis police shooting case, Tennessee v. Garner, that an officer must show probable cause to support their belief that there was a threat. Missouri Attorney General Chris Koster admitted to O’Donnell that Missouri’s deadly force law was incorrectly given to the Darren Wilson grand jury.

Confusion surrounding Missouri’s deadly force law may have led to the grand jury’s decision not to indict Officer Wilson. Although Wilson testified before the grand jury for several hours he never explained or was asked by prosecutors the basis of his belief that Michael Brown, unarmed, could or would take his life.

A grand jury only hears from the prosecutor and decides if there is probable cause that the suspect broke the law; if so, the suspect is indicted. The Fifth Amendment requires that either a grand jury indict a suspect or that a District Attorney bring criminal charges against a suspect before a criminal trial can take place. Then, a criminal trial jury decides if a defendant is guilty beyond a reasonable doubt.

A recent USAToday public opinion poll found 57 percent over 22 percent thought the grand jury in the Eric Garner case made the wrong decision in failing to bring charges against Pantaleo. In an interview on BET Networks, President Obama said that distrust between the Black community and police is “deeply rooted in our history” but things are better than in past generations.

Ken Thompson, Brooklyn’s District Attorney, said he is “adamantly opposed” to the New York Attorney General taking over police shooting death cases. “No one is more committed to ensuring equal justice under law” in police shooting cases, he said. Thompson is Brooklyn’s first African-American District Attorney.

In the infamous 1964 Mississippi voting rights case involving murdered college students James Chaney, Michael Schwerner, and Andrew Goodman, that state’s Attorney General took over the case when the local District Attorney failed to vigorously prosecute the Klansmen responsible for their deaths.

Patrick Lynch, president of the Patrolman’s Benevolent Association of New York City is opposed to the state taking over police shooting cases from the local District Attorney. Lynch said, “There is absolutely no reason to alter the existing system.” 


Gloria J. Browne-Marshall is an associate professor of Constitutional Law at John Jay College in New York City. She is author of “Race, Law, and American Society,” playwright, and U.S. Supreme Court correspondent for AANIC (African-American News & Information Consortium). @gbrownemarshall



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