New York’s Attorney General, Letitia James, made an arguably remarkable statement last week. A Rochester, New York grand jury empaneled by her office had declined to indict several police officers. Daniel Prude, a Black man—half naked in freezing temperature in the street and having digested PCP—was having a psychotic episode (claiming he had COVID, and actively spitting). It ultimately led the police to place a mesh hood (a “spit sock”) over his head and pin him face down to the pavement. They held him down with weight pressure applied for more than two minutes, until he lost consciousness. He later died.
When the grand jury declined to indict the police–even though the Attorney General said she affirmatively wanted an indictment—she said that “The criminal justice system has demonstrated an unwillingness to hold law enforcement officers accountable in the unjustified killing of unarmed African-Americans.” Indeed, James connected Prude’s death to many other Black suspects that have died in police custody in recent years across the country.
But complaining about “the System”? Kind of odd given her claim that her office enthusiastically presented the case. Generally, when police have been investigated in such circumstances with no indictment resulting, the public outcry, particularly in the Black community, has been that the prosecutor’s office is in bed with the police and therefore essentially discouraged the grand jury from indicting when it presented the case. So why, at bottom, didn’t the grand jury indict: “bad law”; race; a prosecutor not really wanting to indict? A combination?
Regarding Prude’s death, the non-indictment followed a presentation by a boldly progressive African American purportedly intent on reversing the trend of non-indictments when Black people die in police custody—particularly in cross-racial encounters. Indeed, James was empowered to pursue the case because, in 2015, Governor Andrew Cuomo’s executive order transferred to the Attorney General’s office (then occupied by her predecessor) all New York cases where unarmed civilians die in police custody. Cuomo’s purpose was to eliminate any basis to be concerned about inappropriate motivations by prosecutors when police killings of minorities, Black people in particular, don’t result in indictments. The Attorney General’s office, of course, doesn’t typically depend on local police for its criminal cases.
So what’s the deal? James wants to prosecute, but somehow can’t get the grand jury to indict? It seems to undermine, or does it, the famous aphorism of the retired Chief Judge of New York, Sol Wachtler, that “if a district attorney wanted, a grand jury would indict a ham sandwich.” Indeed, after the grand jury voted “no” in the Prude case, James surprisingly asked a judge to release the full grand jury transcript–proof, ostensibly, that her prosecutors had wanted to indict, and that the non-indictment wasn’t the result of a “dive” on their part. (The judge—somewhat extraordinarily—has granted the request, but the transcript is not yet public). In explaining why her grand jury presentation “failed,” James also issued a public statement plainly arguing that “the law” is bad—“[T]he system too often allows officers to us deadly force unnecessarily and without consequence.” Paraphrasing, “Not my office.”
Additionally, James released a public report, simultaneously with announcing the non-indictment, which elaborately details the Prude-related evidence and the required legal instructions that the prosecutors would have been required to administer to the grand jury. (Yes: no judge is present in the grand jury room–the prosecutor both presents the evidence and instructs the grand jury on the law, with no defense lawyer present. Indeed, an imposing subject for another day).
An attorney for the Prude family, Elliot Shields, unsurprisingly thinks differently. He says that the expert presented to the grand jury by the prosecutor is a proponent of “Excited Delirium Syndrome.” The testimony, as reported by James, would have been that the weight applied to Prude for such a period of time, as contrasted with other factors involved, would simply not have caused the cardiac arrest in question. Shields sees EDS as simply “junk science.” He goes so far to say that EDS was the best defense the police officers’ defense could have presented. So, argues Shields, in an interview, why would the Attorney General have presented it? I’m not in a position to fairly weigh in on Shields’ concern that James actually didn’t want the officers indicted. Was it to placate the “Blue Lives Matter” constituency in case she seeks the governorship one day?
Contrarily, however, and this may be key: maybe James fairly recognized that she might have been able to obtain an indictment–easily, as Judge Wachtler whimsically notes—but that she would ultimately have lost the case at trial where the burden of proof is so much more onerous for the prosecutor. And so, she presented the case to the grand jury “right down the middle” including a proponent of EDS similar to what the defense would surely have called at trial.
Indeed, even though James does publicly claim that she affirmatively wanted an indictment, it is hardly ridiculous for a prosecutor to present a case, from the perspective of both sides, and let the chips fall where they may. Especially if she knows, going in, that a defense will invariably be able to put a serious dent in the prosecutor’s case at trial. The real question–if this is what happened–is why the Attorney General chose a different public stance: i.e., “I wanted an indictment!” If the unlikelihood of gaining a trial conviction was what drove the presentation—and it’s a big “if”—shouldn’t she have been more transparent with the public? But, maybe something else was at play, too–something James didn’t mention. We don’t know the racial composition of the grand jury. What was its demographic? Did that contribute to why the grand jury didn’t indict? Monroe County, New York, from which the grand jury was drawn has a mixed population, reportedly 76-percent white. But what about the jury itself? We simply don’t know–although minority jurors may have been more likely than whites to empathize with Prude, an African American.
Yes, this issue might not apply. But think back, in this context, to the O.J. Simpson prosecution. There, then-Los Angeles County District Attorney Gil Garcetti could have placed venue in Santa Monica with a largely white population, but chose a downtown LA jury which was largely minority. Those who studied the fallout from Simpson’s acquittal remember the breakdown in America generally over the case. It’s definitely an overgeneralization, but white people who followed the trial largely would have found Simpson guilty and Black people largely would have acquitted. The demographic of a jury is important, however disturbing that reality may be.
Now, of course, the Simpson trial and the Prude grand jury presentation present radically different circumstances. Nonetheless, was race at play in both? Garcetti, a politician, couldn’t publicly complain that Simpson was acquitted because of a minority jury. And James, likewise a politician, can’t argue publicly that race–if it did— might explain what happened in her case (of the seven police, one officer was Black and one Latino). Would the perception of the result have been different if the grand jury had sat in Bronx County, or police-friendly Staten Island? For sure. Suppose, then, the law wasn’t at fault; James’s office ably presented the case intending to indict; and the result was largely occasioned by the jurors’ implicit bias in favor of police.
Put simply, we just don’t know. These cases are intensely fact-specific. Beyond that, though, grand jury proceedings are shrouded in secrecy. We typically don’t learn what actually occurred behind closed doors. Attorney General James’s decision to make public the Prude proceedings is an important step to help shed light on it. Remember though, and it is important: grand jurors are not necessarily subject to a voir dire needed to excavate the kind of biases that may impact them. No defense lawyers participate; but even the prosecutors don’t always have a true opportunity to learn if the potential grand jurors have essentially voted “no” before the presentation even begins.
Did James affirmatively want an indictment? Did the law stand in the way? Was community bias a roadblock? And, lest it go unsaid, perhaps the idiosyncratic facts of the case simply didn’t warrant an indictment in this case. We can’t ignore that very real possibility.
The Prude grand jury investigation is complicated, as are many. Chief Judge Wachtler, mentioned above, has publicly advocated against the grand jury system generally. The unique circumstances presented in Prude raise important considerations about the sometimes questionable nature of grand jury presentations; conflicting prosecutorial motivations; disturbing aspects of police training and enforcement mechanisms; the limitations of statutory tools needed for effective prosecutions of police; and the impact of race generally. It might present just the confluence of factors needed to more seriously consider Judge Wachtler’s thinking.
Joel Cohen practices white collar criminal defense law at Stroock & Stroock & Lavan, LLP. He is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publishing, 2014) and an adjunct professor at both Fordham and Cardozo Law Schools.
[Image via Rochester Police]
This is an opinion piece. The views expressed in this article are those of just the author.
