By Andrew Keshner, From New York Law Journal

Attorney General Eric Schneiderman has asked Gov. Andrew Cuomo to appoint his office as the temporary special prosecutor to investigate police actions resulting in the deaths of unarmed civilians, while the governor and the Legislature craft a permanent reform.

Schneiderman said on Monday that he was responding to a “crisis of confidence” in the state’s criminal justice system after a Staten Island grand jury decided an officer should not face criminal charges for a man’s death.

A grand jury’s refusal to indict officer Daniel Pantaleo last week for the chokehold death of Eric Garner, coupled with a recent return of no true bill for a white Missouri police officer who fatally shot a black man, has sparked skepticism about whether locally-elected district attorneys are capable of pressing cases against police they work with on a daily basis.

Schneiderman took pains in his letter Monday to say his request had to do with public perception, not prosecutorial ability.

He said he and fellow prosecutors “are conscientious about our ethical duty to see that justice is done in every case. Rather, the question is whether there is public confidence that justice has been served, especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a trial by jury.”

Schneiderman said Cuomo is authorized to grant the temporary order under Executive Law §63(2) and (3). The first provision says the attorney general’s office, when required by the governor, “shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform.”

The order should be written, Schneiderman said, so that his office’s authority over the cases “expire[s] when the Legislature acts to permanently address this issue in such manner as it deems appropriate.”

The proposal is under review, said Cuomo spokeswoman Melissa DeRosa.

“When people begin to lose faith in the criminal justice system, reform must follow. As the governor said, meaningful change will require thoughtful dialogue and a real top-to-bottom review with criminal justice experts, community stakeholders, and police, prosecutorial and judicial representatives,” DeRosa said.

Meanwhile, reaction from some state prosecutors ranged from cautious to dismissive.

Bronx District Attorney Robert Johnson emphasized that his office has pressed multiple cases against officers over the years.

“I understand the intensity of the current public concern. However, this is not the sort of issue which should be addressed in haste. There is a need for careful study and input from the district attorneys.”

Brooklyn District Attorney Kenneth Thompson said he “adamantly opposed” Schneiderman’s request, stressing he was the borough’s “duly elected” prosecutor.

“The people of Brooklyn have voted for their district attorney to keep them safe from all crimes, including those of police brutality. The attorney general’s proposal would override their choice, and that should not happen.”

Thompson’s office has impanelled a grand jury to decide if an officer should face criminal charges for the November shooting death of Akai Gurley, which the police have called accidental.

Erie County District Attorney Frank A. Sedita, III, president of the District Attorneys Association of New York, noted he was speaking for himself, saying he was “open to discussion on any proposal by the attorney general, but I think it’s very dangerous to rush into anything”

He said there were possible legal and constitutional issues “that have to be grappled with.”

He noted County Law Sections 700 and 701, and a large body of case law, already defined the powers of prosecutors and the rare circumstances in which they are removed.

Furthermore, Sedita said, “I think it makes any lawyer nervous” to hear the majority of citizens will be treated one way, but certain classes of citizens, by virtue of who they are or their occupation, would be treated differently.

“While I’m not rejecting the attorney general’s idea, nothing like that at all, we need to tread carefully before we change the system,” he said.

The Staten Island District Attorney’s office did not comment on Schneiderman’s request.

At his press conference, Schneiderman, flanked by numerous elected officials, said several times that his proposal was not meant to cast aspersions on the work of the state’s district attorney for whom he had the “highest possible regard.”

“But as prosecutors, it is time to acknowledge that the public has lost confidence in this part of our criminal justice system,” he said, noting that there have been many cases in which the attorney general’s office has been deputized to handle local criminal cases.

Likewise, other officials speaking at the event repeatedly said the proposal was not meant to question the work of prosecutors statewide.

New York City Comptroller Scott Stringer said the work of prosecutors was “essential to keeping our community safe and we should honor their service in New York state. However, the confidence in our system of law enforcement will erode if there is even the appearance or suggestion of a conflict of interest with the administration of justice.”

History of Appointments

New York state created a special prosecutor’s office in 1972 to explore police corruption in New York City.

Gov. Mario Cuomo disbanded the office in 1990, citing budget constraints. Calls to reinstate and extend it to police misconduct and brutality allegations have arisen over the years.

In 2008, Gov. Eliot Spitzer appointed the Attorney General’s Office, then led by Cuomo, to handle the high-profile murder case against Martin Tankleff, who had been convicted of murdering his parents, after an appellate court ordered a retrial. The office decided against retrying the matter.

In 1996, when capital punishment was still legal in New York, Gov. George Pataki tapped Attorney General Dennis Vacco to prosecute a Bronx case when Johnson took a stand against the death penalty.

In 1988, Mario Cuomo turned to Attorney General Robert Abrams to handle the racially-charged Tawana Brawley case. Grand jurors determined Brawley, who is black, made up accusations she had been abducted and raped by a gang of white men.

IMAGE: State attorney General Eric Schneiderman announces his proposal to have the governor appoint his office as special prosecutor in police-related killings at a press conference Monday. NYLJ/Rick Kopstein

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