The two Buffalo police officers who were being investigated in the death of unarmed suspect Wardel Davis told the state Attorney General's Office they were willing to be interviewed, but only if they could be interviewed together.
And the AG's Office refused that deal.
In the end, state investigators who were trying to determine whether Officers Todd C. McAlister and Nicholas J. Parisi should face criminal charges never interviewed them, according to an AG's report about Davis' death released Wednesday.
The AG's Office determined no criminal charges were warranted against McAlister or Parisi based on evidence reviewed, including written statements the officers made just hours after Davis stopped breathing Feb. 7 on Hoyt Street while they were trying to handcuff him. The investigators also reviewed statements the two officers made to other Buffalo police officers and their supervisors as well as to a deputy chief medical examiner who handled the autopsy.
Two separate pathologists concluded Davis died of an acute asthma attack exacerbated by the struggle with police, the AG's Office said in concluding its 10-month investigation.
State Attorney General Eric T. Schneiderman's Office took over the investigation into Davis' death based on a 2015 executive order by Gov. Andrew M. Cuomo authorizing the AG to act as a special prosecutor in cases of police-involved deaths of unarmed civilians.
The police officers had the right to refuse to talk to Schneiderman's investigators, noted the AG's report.
"Officers Parisi and McAlister have a Fifth Amendment right not to speak to the OAG [Office of Attorney General]," the AG report said.
It also gave two reasons for why the AG's Office rejected the joint interview: First, that "well-established best practices (and the OAG's own practice for all witnesses in this investigation) make clear that witnesses, especially interested witnesses, should be interviewed separately" and second, the AG's Office already had other statements the officers made.
An "interested" witness is a witness who could potentially be charged or has a personal stake in the outcome of the investigation.
McAlister's attorney, Thomas H. Burton, defended his client's refusal to be interviewed separately from his partner.
"We had a joint defense," Burton said. McAlister and Parisi "encountered Mr. Davis together as partners. They faced the same concerns regarding [Davis'] non-compliance as partners. They got into a street brawl with [Davis] as partners and they tried to save his life as partners."
Thomas said he and fellow attorney Joseph LaTona, who represented Parisi, made the offer of the joint interview multiple times, verbally and in letters. "The fact that the AG did not want to speak to these officers is a self-imposed limitation on their investigation, contrary to what we offered to let these cops tell the AG what happened," Burton said Thursday.
A spokeswoman for the AG's Office said it's "incredibly uncommon to interview two witnesses of any kind together."
"Joint interviews of witnesses — especially interested witnesses who are closely aligned with one another — can muddy independent recollections of key events and create an echo chamber, resulting in the two witnesses coalescing around a joint narrative, either subconsciously or purposefully,” said AG's Office spokeswoman Amy Spitalnick.
The Buffalo Police Department said in a statement Wednesday that an internal investigation was still ongoing. The officers have been on paid administrative leave since their encounter with Davis.
News Staff Reporter Lou Michel contributed to this report.