Inside the Secretive Legal Process That Can Shield Police From Charges

NEW YORK — Her voice heavy with emotion, Letitia James, New York’s attorney general, stepped onto a church dais in Rochester in February to announce that a grand jury had declined to indict the police officers who were involved in the death of a Black man in their custody. “I’m disappointed — extremely disappointed,” James said. Her office had presented the jurors with what she called an extensive investigation into the death of the man, Daniel Prude, whom the police pinned facedown on the pavement until he lost consciousness. “We sought a different outcome than the one the grand jury handed us today,” James said. Sign up for The Morning newsletter from the New York Times But transcripts of the grand jury proceedings, released publicly by a judge last month at James’ request, tell a more complicated story. Grand jury proceedings almost always remain secret, and the transcripts of the inquiry into Prude’s death provide a rare view into the inner workings of the criminal justice system at a pivotal moment in the continuing national debate over police accountability. In a grand jury proceeding, prosecutors typically present a one-sided case in hopes of securing a criminal indictment. But during the inquiry into Prude’s death, lawyers from James’ office chose to present both sides of the case, effectively acting as prosecution and defense and telling the grand jury upfront that its purpose was to investigate the facts, not necessarily to indict. Some of the witnesses who were called by prosecutors appeared to absolve the officers of wrongdoing. The revelation prompted fierce criticism of James specifically and anger more broadly over a legal process that often seems to shield the police from criminal consequences. The transcripts underscore the crucial role that grand juries play in deciding whether police officers are charged — or more often, not charged — for encounters that turn deadly. The transcripts also illuminate the particular challenges of prosecuting officers, even for a law enforcement official like James, who campaigned on criminal justice reform and sued the New York Police Department this year over its handling of protests touched off by the killing of George Floyd in Minneapolis. Only prosecutors may call witnesses during grand jury hearings, and jurors never hear from the defense. In the case involving Prude’s death, prosecutors from James’ office called police trainers who testified that the officers who restrained him did not violate protocol with their techniques. The state's lawyers also presented a California doctor who is known for defending police actions. He said the officers had not caused Prude’s death. Another expert witness, a professor from South Carolina, testified that the police had used unreasonable force by failing to roll Prude onto his back after he stopped resisting. The prosecutors also questioned two officers who were facing potential indictment, asking why they had resorted to hands-on restraint instead of trying to de-escalate the situation or show more compassion. At least one juror struggled to reconcile the contradictory testimony. “It seemed like one expert had an opinion that there was no improper anything done,” said a juror whose name was redacted from the transcript. “And then, another expert had an opinion that there was some — something that was not quite properly done, am I correct?” Prosecutors told the juror it was the jury’s job to decide whom to believe. The release of the transcripts just days before Derek Chauvin, a Minneapolis officer, was convicted of murder in Floyd’s killing reignited outrage in Rochester, where the revelations surrounding Prude’s death touched off fiery protests last year. Citing the transcripts, some community leaders accused James’ office of deliberately presenting a weak case. James said in an interview that the investigation was an earnest effort to let the jury reach an independent conclusion. “It was really critically important that the grand jury engage in an exhaustive and comprehensive analysis of the facts,” she said, adding that the outcome was a result of laws that give police officers broad protections to use deadly force on the job. “These are incredibly tough cases to investigate and prosecute, but ultimately I respect the grand jury’s decision,” James said. “All of us continue to be disappointed by the criminal justice system as a whole.” On Friday, James proposed legislation that she said would strengthen police accountability. The proposal includes allowing officers to use force only as a last resort and establishing criminal penalties for officers who violate the guidelines. Prosecutors in cases where there may be a strong defense, particularly those that involve potential police misconduct, can present all sides to a grand jury; doing so can indicate how trial jurors may react to evidence. Whether James’ prosecutors presented the strongest case they could is difficult to determine, said Geoffrey Alpert, the expert from South Carolina who testified before the Rochester grand jury. “If the purpose of the grand jury is to get an indictment, then no, they could have called different witnesses,” Alpert said in an interview. “If the purpose of the grand jury was to give jurors several different perspectives, then they did.” But Michael Schiano, a lawyer for one of the officers, said that to him, it was as if the prosecutors put on a case for the defense. “Prosecutors put on the case that we would have put on anyway,” Schiano said. “They put on the witnesses we would have put on if there was a jury trial.” The transcripts show that two of the three Rochester officers who were facing potential indictment testified before the grand jury. Although the targets of investigations rarely testify, legal experts said it is more common in cases involving the police, particularly where an officer is claiming to have acted in self-defense. The officers testified that they decided to use force after Prude did not follow their instructions to stay on the ground. “We told him to calm down, and he’s telling us he wants to take our firearms,” one of the officers, whose name is redacted in the transcripts, said. “And then we tell him to stay down and he still tries to get up.” Prude encountered the Rochester police March 23, 2020, shortly after he became emotionally unstable and sprinted out of his brother’s home. Fearful for Prude’s safety, his brother called 911. Responding officers found Prude several blocks away. He was naked and spitting and claiming that he had the coronavirus. They put a mesh hood, or spit sock, over his head and handcuffed him, then pressed his head to the pavement until he lost consciousness. Although it was snowing, no one covered his body or helped him when he vomited, body camera footage shows. Prude died a week later. The medical examiner determined that his death was caused by factors that included oxygen deprivation and PCP drug intoxication. Body camera footage showed Prude becoming more agitated after the officers placed the hood over his head. The officers said they feared contracting the coronavirus. Karen Friedman Agnifilo, a former high-ranking official in the Manhattan district attorney’s office, defended James, saying the attorney general was constrained in her ability to prosecute the Rochester officers because of the broad legal protections provided to the police. “Until that law changes, this will keep happening over and over again,” Friedman Agnifilo said. Prosecutors in Minnesota did not have to rely on a grand jury to charge Chauvin. Their counterparts in about half of all states, including New York, can only bring felony charges after convincing grand jurors that there is probable cause that crime was committed, a fairly routine exercise. When the defendant is a police officer, the outcome is less certain. About 1,000 people a year in the United States die in encounters with law enforcement, but few officers are ever charged with murder or manslaughter for deaths in the line of duty. Of those that are, only one-third are convicted. Six years ago, after a Staten Island grand jury failed to indict the officer involved in the death of Eric Garner, an unarmed Black man who was placed in a police chokehold, Gov. Andrew Cuomo established a special unit in the attorney general’s office to prosecute such cases. The idea was to remove such prosecutions from local district attorneys, who often work closely with the police. But in the 43 investigations that unit has investigated since then, only three officers have been charged, according to the attorney general’s office. About one-quarter of the investigations remain active. Prude’s family did not see how he died until the summer. The video became public in September after their lawyers demanded that city officials release the body camera footage. Revelations of an apparent cover-up led to the firing of Rochester’s police chief and the suspension of the seven officers involved. James brought the case before a grand jury shortly after that. The transcripts revealed James’ selection of an important expert witness: Gary Vilke, a San Diego doctor who is typically hired by the police to defend them. (All witnesses’ names were redacted in the transcript, but some were easily identifiable.) Vilke testified that the weight of the officers pressing on Prude’s back and legs did not impair his breathing, the transcript showed, leading him to conclude that the officers had not contributed to Prude’s death. In an interview last month with a local Minneapolis television station, Vilke said it was “doubtful” that Chauvin had caused Floyd’s death. Peter Neufeld, a civil rights lawyer who has sued police officers, said it was “incomprehensible” that prosecutors chose Vilke, whom he described as a reliable defender of police. “You’re unfairly undermining your case before you get started,” Neufeld said. Vilke did not respond to multiple requests for comment. James said that Vilke had offered his expert opinion and did not tell the grand jury how to vote. She added, however, that his comments about Chauvin, which came after the case involving Prude concluded, were troubling and would “factor into any selection moving forward.” After the grand jury decided not to charge the Rochester officers with homicide, James met privately with local Black faith leaders. The Rev. Myra Brown, pastor of Spiritus Christi Church, said she confronted James there about her office’s failure to obtain an indictment. James said it was her office’s ethical obligation to lay out all the facts, Brown said. To people like Brown, James’ words of extreme disappointment ring hollow now. “Clearly she wasn’t disappointed enough to send in any real scholarship presenting an airtight case to at least get us an indictment,” Brown said, “and at least get the Prude family their day in court.” This article originally appeared in The New York Times. © 2021 The New York Times Company