The increased public attention to cases involving the deaths of individuals in police custody and in police officer-related shootings has resulted in intense scrutiny and contributed to protests and violent uprisings in some cases.

Fairly recent developments in the investigation of these cases have thrust the office of the New York State Attorney General to the forefront of these high profile and complicated matters. Notably, there are only a few pockets in the law where the Attorney General has original criminal jurisdiction, which is typically the province of the local district attorneys.

Historically, these police cases were handled by local district attorneys. In New York, there are 62 counties and depending on the location of the underlying incident that county’s district attorney would have jurisdiction to handle the matter and present the case to a grand jury.

When utilized properly, the purpose of the grand jury is to allow between 16 and 23 citizens from the community to act as a screening panel to make a determination whether there is probable cause to believe that a person has committed a crime. In these cases, the stakes are very high, as the grand jury would likely be considering whether to bring homicide charges against a police officer. All grand jury proceedings are secret as a matter of law. The unlawful disclosure of grand jury matters by a public servant having official duties related to a grand jury matter is a felony, punishable by up to four years in state prison (see, Penal Law section 215.70).

In theory, if the proof presented to the grand jury sustains the standard that there is “reasonable cause” to believe that a person committed the crime, the grand jury would vote to indict the individual. If the grand jury found that there was insufficient proof to meet that standard, the vote would be for a “no bill,” meaning that no charges would be authorized and the case would be concluded.

In New York, unless a defendant waives his right to presentation of a case to a grand jury, all felony prosecutions must be presented to a grand jury. At these presentations, only the prosecution is permitted to present evidence and witnesses; thus, the target of an inquiry has no control over the process other than to decide whether to testify on his or her own behalf. In the vast majority of criminal cases a target does not testify, as to do so would give the prosecution an opportunity to cross-examine him or her aggressively in advance of a trial, which might be a significant tactical mistake by the defense.

In cases involving the police, the dynamic can be very different. In a county setting the local police and the district attorney work very closely together. The prospect of one law enforcement partner investigating another could lead to questions of objectivity, particularly if the grand jury concludes that no criminal conduct occurred even if that is a clear and sound determination. Unlike most criminal cases, in the past it was not unusual for a police officer to waive transactional immunity that accompanies a grand jury target under NY law, and testify before the grand jury. When this occurs, the officer is sometimes counseled that offering his or her side of the story will convince the grand jury not to indict and the matter will be concluded. That tradition seems to be changing given the deterioration in confidence in the perceived fairness of grand jury inquires involving police officers. Police officers, like any target of the grand jury, cannot be compelled to testify before the grand jury unless transactional immunity is granted.

In 2014, Eric Garner died in Staten Island while police tried to subdue him using a chokehold. In the Garner investigation conducted by the Richmond County District Attorney, the grand jury decided not to indict the police officer involved, sparking public protests and rallies.

Concerns over this dynamic and a series of high-profile cases across the country, including the Garner case, led Governor Andrew Cuomo to issue Executive Order No. 147. EO 147 authorized the New York Attorney General to investigate and present these cases to a grand jury. Gov. Cuomo relied on Executive Law section 63(2) to trigger the Attorney General’s criminal jurisdiction.  This action served to eliminate the perceived bias that might be argued in situations where the local district attorney was investigating its law enforcement partners in the local police agencies.

Another notable investigation that tested the new paradigm involved a police shooting of an individual in Troy, New York. After presentation of the case to a grand jury by the elected district attorney, and a subsequent investigation by the Attorney General into the matter, the local district attorney was alleged by the Attorney General to have improperly granted the police officer transactional immunity in the grand jury, which effectively inoculated the police officer from prosecution. The Attorney General indicted the elected district attorney for official misconduct and perjury, but the trial court dismissed the charges. On appeal, the Appellate Division, Third Department reinstated the charges and upheld the Governor’s appointment of the Attorney General in these cases, and remanded the case back to the trial court where it remains pending.

Recently, the City of Rochester was pushed to the forefront due to the March 2020 death of Daniel Prude while in police custody. The Attorney General has reportedly been reviewing the matter and after public reports that the case was ruled a homicide, a grand jury was impaneled to hear evidence in the case. The case has sparked a series of protests and violent behavior on the streets of the city.

Just like a local prosecutor, in the Daniel Prude investigation the Attorney General will have significant power to control the evidence and information that comes before the grand jury, which will logically influence the grand jury in its ultimate decision of whether to charge, or not charge, anyone in connection with the death of Daniel Prude.

Under the framework of the EO, the choices of the grand jury include an indictment or a “no bill.” In the case of a “no bill” it must be accompanied by a public report that includes “an explanation of that outcome and any recommendations for systemic reform arising from the investigation.”

Regardless of the outcome of the Prude investigation, given the tense nature of these situations, the possibility of criticism of the grand jury determination remains. However, if a “no bill” is issued, the added feature of a fulsome report helps reduce the opaqueness of the grand jury that has existed in state law for many years. How the public reacts to the potential outcomes in the Prude case will provide an indication of whether these reforms are enough to restore confidence in the process.

Partner Karl Sleight is a former New York Assistant Deputy Attorney General. Partner Joan Sullivan is a former New York County Assistant District Attorney. 

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.