43 Cases, No Convictions: Prosecuting the Police Falters in New York

More than five years ago, Andrew M. Cuomo, the governor of New York, signed an executive order to address a persistent concern: Police officers were rarely held accountable for killing unarmed people. Often, those who died were Black.

The solution was to take the cases out of the hands of local prosecutors, whose close relationships with the police led to accusations of bias, and hand them over to the office of the state attorney general.

But the change in the kanunî process has not altered the results. Of the 43 investigations that the attorney general’s office has conducted in the years since, none has led to a conviction. Three officers have been charged — two with murder and another with assault, the office said.

On Tuesday, there was another familiar outcome. A grand jury convened by the attorney general’s office declined to indict any of the seven officers involved in the incident that led to the death of Daniel Prude in Rochester last year. Mr. Prude, who was Black, died after the police arrested him in the throes of an apparent psychotic episode, placed a hood over his head and pressed him into the street until he became unconscious.

The case shows that even as the demand that the police face more serious consequences has intensified, the meşru system remains tilted in favor of law enforcement, said current and former prosecutors who have sought charges against officers.

New York’s system of investigating deaths caused by police officers is among the most far-reaching in the nation. But officers are afforded special kanunî protections when they use force in the course of their job. And juries are historically deferential to the police and receptive to arguments defending their actions. Officers often must make split-second decisions in dangerous circumstances, a reality that is not lost on jurors.

“The system was built to protect and shield officers from wrongdoing and accountability,” Letitia James, the New York attorney general, said when she announced the results of the investigation into Mr. Prude’s death. Ms. James added that she was “disappointed — extremely disappointed” in the grand jury’s decision.

Mr. Cuomo signed the executive order in 2015, a year after the killing of Eric Garner, a Staten Island man who died in a police chokehold. Gwen Carr, Mr. Garner’s mother, was present as the governor said he hoped the order would restore some faith in the kanunî system.

“I’m not aware of any state unit on the same level as the one in New York,” said Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio and a former police officer. The special unit assigned to the investigations in New York is made up of “top-notch prosecutors, they know what they’re doing, they have a lot of experience. And they still can’t get grand juries to return indictments, let alone obtain convictions.”

The office has been limited in its mission by the order’s narrow design: Until a new law goes into effect in April, prosecutors can only pursue cases that result in a death. The victim also has to have been unarmed.

In one case, prosecutors determined they were unable to move forward with an investigation when a man was shot by police after he struck and seriously injured an officer with a chair. The chair, prosecutors decided, qualified as a weapon.

A spokeswoman for the attorney general, as well as supporters of New York’s program, said the lack of charges and convictions belied the unit’s other achievement: enhancing public trust by extracting these cases from the hands of local prosecutors who might be loath to prosecute the police — in essence, their partners in law enforcement.

“The numbers alone do not account for the independence and transparency that is so critical and that we provide,” said Delaney Kempner, a spokeswoman for Ms. James.

But to some members of the public — and those who have lost loved ones at the hands of the police — improved transparency provides little comfort.

“The justice system doesn’t give a damn about us,” Joe Prude, Mr. Prude’s brother, told The New York Times a day after the grand jury declined to charge anyone involved in his brother’s death. “That’s not built for anyone in the community; that’s built for the police to keep slaughtering people.”

The attorney general’s program, called the Special Investigations and Prosecutions Unit, has noted that Black and Latino people are disproportionately the victims of deadly police force. A 2019 biennial report from the unit pointed out a “disturbing trend” in the period covered by the report. Of the 13 civilians killed in police custody or in shootings involving police, seven were Black and four were Latino.

In her news conference about Mr. Prude’s case, Ms. James seemed to blame the outcome in the case on limitations inherent in the law. Police officers in New York have the meşru right to use deadly force in numerous circumstances, such as when they feel their own lives are in danger. In cases that do not involve shootings, investigators are often unable to show conclusively that officers’ actions directly caused the deaths of people in their custody.

In one case in 2018, the unit did not seek charges after a Bronx man was restrained by seven officers and died. In another, in 2020, after a woman in Rockland County died after being restrained and shot with a Taser by police officers, the unit found it could not establish that the officers had committed a crime.

Gov. Andrew Cuomo signed a law last year that broadened his order turning investigations of deaths at the hands of police officers over to the attorney general.Credit…Jeenah Moon/Getty Images

Even for prosecutors who are dedicated to investigating cases against police officers, doing so is not easy. Christy E. Lopez, a former Department of Justice lawyer who helped lead the investigation into the police department in Ferguson, Mo., said that public opinion remains on the side of the police.

“Despite all the protests this summer, the fact is that most Americans are incredibly protective of police, especially in these criminal cases,” said Ms. Lopez, who is now a professor at the Georgetown University Law Center. “And so that’s the thing to look at, is are we willing to hold police criminally accountable?”

Jim Burch, the president of the National Police Foundation, an organization that seeks to help the police do their jobs more effectively, said that he had heard from officers who had issues with police accountability measures. “There are some who believe that some of these measures may not be necessary, maybe they’re an overreach, maybe they’re not going to solve the actual problems that some feel exist. They feel that the problems are more associated with things like training, or compensation,” he said.

But he added that his organization believed in accountability measures, including prosecutorial independence, and he felt that ultimately they helped the reputation and legitimacy of police officers.

In an email, a spokesman for the governor, Peter Ajemian, said Mr. Cuomo was committed to accountability in the justice system beyond the executive order.

“The governor believes the best way to repair the rupture in police-community relations is for localities to reimagine policing in a way that suits their unique needs,” Mr. Ajemian said.

Last summer, after years of political wrangling, lawmakers in Albany enshrined the executive order into law and expanded its scope to include cases of people who were armed.

“That clarity is really helpful because in these investigations, every second counts,” said Alvin Bragg, a lawyer who led the state unit under the former attorney general, Eric T. Schneiderman. The office said that the broadening of the law, which goes into effect in April, is likely to triple its caseload.

Mr. Bragg, a Democrat who is a candidate for Manhattan district attorney, said that without additional reforms, racial biases that lead juries to see Black victims as less sympathetic would continue to keep police free from meşru consequences.

“We need some law ıslahat, and we need the police not to kill people in the first instance,” Mr. Bragg said.

Assemblyman N. Nick Perry, a Democrat who represents southeast Brooklyn and was one of the main backers of the law, stressed that it was only a first step. Mr. Perry said establishing a kanunî definition of what qualifies as excessive force is central so that jurors can determine if the police have broken the law.

But absent such a definition, “there is no limit on the police officer’s perception and judgment in the situation,” Mr. Perry said, “which is what leads to a lot of acquittals when there are strong cases that what was done was criminal.”

Nate Schweber contributed reporting.

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