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State’s DAs call executive order on special prosecutors ‘gravely flawed’

It took no time at all for New York’s district attorneys to confer about how they viewed the governor’s executive order that a special prosecutor be appointed to investigate whenever a law enforcement officer is involved in the death of an unarmed civilian.

The state District Attorneys Association was holding its annual conference when the executive order was issued last week, and on Monday it released a response that said the order “is gravely flawed and invited serious legal issues” regarding how such civilian deaths will be investigated.

“It’s the elevation of politics over public policy,” said Erie County District Attorney Frank A. Sedita III, chairman of the district attorneys association board. “There’s no factual basis for the claim that prosecutors cannot fairly present these cases.”

Gov. Andrew M. Cuomo’s order cites the weakening of public confidence and trust in the criminal justice system and the public perception of bias in explaining the reason for creating the special prosecutor position.

The district attorneys said in their statement, “rather than quelling this false notion, they fed it and gave it legitimacy. The fact that many prosecutions have successfully been undertaken by local district attorneys of police officers who have committed crimes belies this claim.”

Sedita pointed out that Cuomo later said in an interview with the Rev. Al Sharpton that he doesn’t necessarily believe local prosecutors would be biased or have a conflict on interest when prosecuting officers.

Cuomo called his order a “simple solution” to a public perception problem, as it states, “to ensure that a full, reasoned, and independent investigation and prosecution of any such incident is conducted without conflict or bias, or the perception of conflict or bias.”

Sedita’s answer to that explanation is, “Since when are we basing such important public policy decisions on feelings?” rather than years of legal precedent.

The district attorneys’ objections focus on two points: whether creation of the special prosecutor position is even necessary, and how the order’s “serious ambiguities” might undermine future prosecutions.

“The documents are loaded with ambiguity and uncertainty about who is supposed to be doing what,” Sedita said. “They override legal rules that have withstood years of challenges. Nobody thought through the mechanics of this.”

Cuomo does have the support of Attorney General Eric T. Schneiderman, who had written to the governor in December requesting that his office be charged with investigating and, when appropriate, prosecuting cases of deaths of unarmed civilians at the hands of police.

At about the same time, the district attorneys association proposed its own plan – which it also sent to the attorney general’s office – for independent monitoring of cases involving fatal police-civilian encounters.

Among its proposals are:

• To allow a grand jury to issue a report on its decisions in such cases, or to have the district attorney issue a letter explaining the basis of the grand jury’s ruling without being limited by grand jury secrecy rules.

When a Staten Island grand jury declined to indict the police officer involved in the death of Eric Garner, an unarmed man whose arrest was captured on cellphone video, there was a large public outcry from many who saw the image of Garner on the pavement telling the officers “I can’t breathe.”

• That cases of fatal police-unarmed citizen encounters that don’t lead to indictment would be reviewed automatically by an independent monitor. District attorneys would provide the independent monitor with the grand jury minutes, charge and exhibits, as well as other evidence within 60 days and the independent monitor then could make a recommendation to the governor if so warranted.

• A special prosecutor would be appointed only if the independent monitor finds a reasonable probability that an indictment would have resulted but for substantial errors by the DA, or there is newly discovered evidence that creates a reasonable probability that a grand jury would issue an indictment.

Statewide, police unions also have criticized the governor’s order, saying they also feel it is unnecessary.

The head of the New York City’s Patrolmen’s Benevolent Association, Patrick Lynch, issued a statement saying in part, “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.”

A spokesman for the Buffalo Police Department declined to address the governor’s order specifically, but said instead, “Buffalo is focused on providing education and training to its police officers to prevent such instances from occurring.”

While Sedita has no reservations about his objections to the governor’s pre-emptive creation of the special prosecutor’s office, he also pointed out that his office regularly has taken law enforcement officer to court. A Buffalo police officer was convicted in the past month of taking money from a wallet he was asked to return to its owner; a sheriff’s deputy is awaiting trial on charges of smuggling contraband into the jail.

“There’s this effort to portray the legal system in New York as something out of 1960s Selma,” Sedita said. “We prosecute officers, but we don’t do it every day. It’s a man-bites-dog thing; most officers are honest. ”

email: mmiller@buffnews.com