Attorney General Letitia James owes us an explanation

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Shakespeare might describe the situation as “there’s something rotten in the state of Denmark.” Though, in this case, we are talking about the New York attorney general’s office. 

On Feb. 23, shortly after the grand jury investigating the death of Daniel Prude chose not to indict any of the Rochester police officers involved, Attorney General Letitia James made prepared remarks that placed the grand jury’s decision in the following broader context. “The criminal justice system has frustrated efforts to hold law enforcement officers accountable for the unjustified killing of unarmed African Americans … and history has unfortunately repeated itself again in the case of Daniel Prude.” 

Alex Zapesochny

She then went on to indicate that “the system is built to protect and shield officers from wrongdoing and accountability.” James vowed that she would be pursuing various reforms to hold the police accountable for using “deadly force without justification,” and also highlighted the need for grand jury reform.

Given her other key statement that day (“my office presented an extensive case, and we sought a different outcome than the one the grand jury handed down today”), the implication was clear. James was claiming that her office did its best to seek an indictment, and that it was the grand jury—reflecting a historical trend of race-based grand jury actions—that took it upon themselves to go in a different direction. 

To place the observations in this piece into perspective, let me note some things about my experience. Early in my career I was a prosecutor in the Bronx, during which time I presented around 200 cases to grand juries and reviewed grand jury minutes from numerous other cases. 

That prosecutorial experience taught me one clear lesson: grand juries nearly always do what the prosecutor wants them to do. Out of the approximately 200 cases I presented, only one came back being “no billed” (i.e., with no indictment). And in that one case, that is the result I was hoping for, which I am sure the grand jurors picked up on.

The nature of grand juries in following the prosecutor’s lead is not some hidden secret or limited to New York. It is an extremely common and widespread criticism. An article in the Harvard Law Review on restoring the legitimacy of the grand jury process noted that federal grand juries in 2010 declined to indict in only 11 out of 162,351 cases, which means that prosecutors got their indictments 99.993 percent of the time. 

Why would prosecutors present a case to the grand jury that they don’t really wish to see result in an indictment? This generally happens when a case is weak, and the prosecutor strongly suspects that it will be lost at trial. But because the case is fraught with some political or public relations risk, the prosecutor presents the case and subtly guides the grand jury to essentially dismiss it. That way, the prosecutor can claim that the office has done everything in its power, and can deflect disappointment and blame onto the grand jury members. 

In reviewing the more than 1,200 pages of grand jury proceedings in the Prude case, I found numerous subtle but telling signs that prosecutors were angling for the outcome that they ultimately got. But for the sake of simplicity, let’s just review the two critical factors in this investigation.

For the grand jury to have indicted any of the officers, they would have needed evidence that: 1) the actions of one or more of the officers contributed to Daniel Prude’s death, and 2) that the actions of the police were not legally justified under the circumstances. If the grand jury believed that either of the foregoing was not true, that would have been enough to decline to indict. Yet the prosecution put on evidence directly contradicting both of these critical elements. 

With regard to the first factor (whether any of the officers caused or contributed to Prude’s death), the prosecution brought in a California-based expert witness, Gary Vilke M.D., who clearly stated that: “none of the officers, their impact, individually or collectively, would have caused or contributed to that cardiac arrest.” Prosecutors also used Vilke’s testimony to expand on Prude’s purported “excited delirium” state and the potential causal link between excited delirium and lethal cardiorespiratory issues.

Letitia James

To be clear, sometimes prosecutors are surprised by the testimony of witnesses. But that applies to eyewitnesses or to expert witnesses that prosecutors are stuck with (e.g., a medical examiner who did an autopsy). But prosecutors are never surprised by the testimony of outside expert witnesses that they are choosing to bring into a grand jury. Prosecutors know beforehand what the expert will say, and they have a strategy behind why that testimony is being introduced in the first place. Vilke’s testimony, in no uncertain terms, indicated that there was no causation between the actions of the officers and Prude’s fatal heart attack, and Vilke even provided an alternative theory for the cause of Prude’s death: PCP-induced excited delirium, leading to cardiac arrest.

With regard to the second factor (whether the officers’ actions were justified under law), prosecutors used the testimony of Vilke and several other witnesses to establish the link between “excited delirium” and the kind of aggressive, erratic behavior that made it an appropriate use of force to restrain Prude. Vilke went so far as to call the restraint of Prude “protective” and that “[t]he way they held him, avoiding the respiratory or ventilatory structures was—was—it would be textbook in my mind. … They actually did a good job.”  

After hearing all of this evidence put forth by the prosecution, 15 out of the 20 grand jurors did what the prosecutors clearly wanted them to do all along. In fact, there is a very telling interaction at the end of the grand jury minutes. A juror proactively spoke out: “Can I say something? I’m sure I speak for everybody. You guys did amazing work. If it wasn’t for everything that you presented to us, I don’t think anybody would have come up with a decision.”  A true statement on multiple levels.

In responding to growing criticism, James has already indicated that this grand jury was meant to only “investigate” the death, and that her office was trying to be fair and not necessarily push for a particular outcome. But that diametrically contradicts her initial statements that her office was seeking a different outcome and placing the grand jury’s decision in the context of racism and police brutality. 

To be clear, the integrity of the criminal justice system and its interplay with race is an important issue. But so is the integrity of our elected officials, especially those that have the hammer of the legal system behind them. 

The release of the grand jury minutes has provided some clarity, but it has also spawned important new questions. It is time for Letitia James to say much more about her office’s strategy in presenting the Daniel Prude case to the grand jury.

Alex Zapesochny is Rochester Beacon publisher.   

3 thoughts on “Attorney General Letitia James owes us an explanation

  1. Mr. Zapesochny has said out loud what I and many others have been thinking . The very reason these type of cases go to the NY State AG is local District Attorneys are loathe to work for an indictment against police they work with in order to get convictions . The conviction rate is the “batting average ” they use when asking for reelection . This very change was made after the DA for Staten Island failed to obtain an indictment in the Eric Garner case , a case where Garner was killed , with video , and his last words , ” I can’t Breathe ” were clearly heard . One must add to this scenario that there are many medical experts who would testify for the prosecution that there is no such thing as a medical diagnosis of “excited delirium ” . Though there are research papers on both sides of this issue by credible medical experts , the World Health Organization , American Psychiatric Association , and American Medical Association do not recognize “Excited Delirium ” as a legitimate medical diagnosis .

  2. This article clearly describes Letitia James’s devious role in the Grand Jury’s failure to indict anyone for the Prude murder. Coupled with City Council’s Celli report that proved Mayor Lovely Warren’s devious role in the coverup of Prude’s murder, there is certainly something rotten in Rochester. And we are owed more than an explanation; there must be accountability.

    When we compare the comprehensive, successful prosecution of Derek Chauvin in the murder of George Floyd to the egregious absence of any prosecution whatsoever in the murder of Daniel Prude, action is required. In the streets, at the ballot box, in the mainstream media, wherever else. Attention must be paid!

  3. Zapesochny already offers the explanation he seeks. He writes: “Why would prosecutors present a case to the grand jury that they don’t really wish to see result in an indictment? This generally happens when a case is weak, and the prosecutor strongly suspects that it will be lost at trial. But because the case is fraught with some political or public relations risk, the prosecutor presents the case and subtly guides the grand jury to essentially dismiss it. That way, the prosecutor can claim that the office has done everything in its power, and can deflect disappointment and blame onto the grand jury members.”

    The AG in the George Floyd trial explained that he could not have built a successful prosecution only on the videos of Chauvin killing Floyd. He needed the testimony of witnesses to have a case. In Rochester there were no witnesses of Prude’s midnight murder other than the cops and there was no video other than body camera footage. So it’s reasonable to conclude that AG James thought she couldnt win her case and steered the Grand Jury away from indictment.

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