In New York, Attorney General as Special Prosecutor

New York Gov. Andrew Cuomo signed an executive order appointing the state Attorney General's Office as special prosecutor in certain cases.

July 17, 2015

Following controversial grand jury decisions in the police killings of Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, New York, Gov. Andrew Cuomo signed an executive order last week appointing the New York State Attorney General’s Office as a special prosecutor in cases involving unarmed civilians killed by police officers. Under the executive order, New York State Attorney General Eric Schneiderman can also review cases where it's unclear if a civilian was armed and dangerous at the time of death. The order will be in effect for one year.

The 2015 legislative session in Albany was marked by state legislators debating various ideas from requiring prosecutors to publicly disclose what charges they are asking grand juries to consider to compelling prosecutors to release the details of grand jury deliberations. Senate Republicans had raised concerns about making changes to the grand jury process and stripping power from district attorneys.  And New York’s highest judge also voiced a concern with the state’s current grand jury system. New York State Chief Judge Jonathan Lippman proposed an increased role for judges to oversee the grand jury process in these types of cases.  State legislators ultimately failed to reach an agreement about how to improve the grand jury process or whether to create a statewide independent prosecutor.

Under the executive order signed by Gov. Cuomo, Schneiderman’s office will take over from local prosecutors to act as a special prosecutor for cases when a police officer is involved in the death of an unarmed civilain, a change that aims to ensure impartial proceedings. Schneiderman would have the ability to investigate and, if necessary, prosecute the officer; these are closely guarded prosecutorial powers that have traditionally been reserved for local prosecutors.

The idea here is that the New York State Attorney General’s office is more removed from day-to-day interactions with local police because of their broad, statewide jurisdiction. Because of the close working relationship between the county district attorneys and local police officers, Schneiderman had   been lobbying Gov. Cuomo to give his office the power to independently investigate these cases.

To investigate and oversee these new cases, Schneiderman has created a Special Investigations and Prosecutions Unit to handle cases referred to the office of the Attorney General .

The 62 locally elected district attorneys have expressed concern about the order. The District Attorney’s Association of the State of New York had proposed their own improvements. Their proposal included releasing the legal instructions given to the grand jury and establishing a mechanism for grand jurors to issue a report on the nature of the evidence as well as to create an independent monitor to review the proceedings.

The idea of a permanent special prosecutor for these cases is rare, despite a recommendation made in the report from The President's Task Force on 21st Century Policing encouraging, “policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.”

New York State is currently the only state to have given its Attorney General the authority to supersede all district attorneys by executive when it comes to prosecuting cases where police kill unarmed civilians. Interestingly enough, Connecticut law had previously given the chief state's attorney authority to appoint a prosecutor from another district in the state to investigate a case resulting in death after being killed by police. And legislation passed this year now requires that cases involving deadly police encounters be assigned to prosecutors from outside of the police officer’s jurisdiction. The law is aimed at preventing appearances of conflict of interest. Wisconsin also passed a law in April of 2014 for mandatory outside reviews of police killings.

While states have begun to debate structural changes to the way local prosecutors handle these types of cases, most of the legislation introduced in the wake of these high profile killings did not pass. Legislation failed in Maryland this year that would have granted authority to Maryland’s Office of State Prosecutor, a small agency that investigates political corruption cases, the authority to investigate any case in which a police officer kills an individual in the line of duty.

In Ferguson, Missouri, all eyes are on the Ferguson Commission - a panel appointed to study social and economic issues following the unrest in Ferguson last year – that is reviewing the possibility of recommending that the state attorney general serve as a special prosecutor in cases of police use of force that end in death or shooting injury.

Some view Cuomo’s order as a gesture to the community that the criminal justice system in New York will take steps to hold police officers accountable.  While a nod to communities of color, this is merely one step toward ensuring that our judicial and legal systems treat all Americans equally.