Did Troy Police Sgt. Randall French murder 37-year-old DWI suspect Edson Thevenin? Maybe.
French told investigators that he fired eight rounds from his service weapon, killing Edson Thevenin, a 37-year-old DWI suspect who was unarmed. French opened fire when Thevenin’s car rolled into the officer’s legs, pinning him against a police cruiser following a brief pursuit, according to Troy police officials.
Two people who told police they witnessed the shooting, Keith Millington, 26, of Cohoes, and Phillip E. Gross III, 35, of Troy, told investigators they did not believe the officer was in imminent danger when he fired the rounds through Thevenin’s windshield. Millington told investigators he was very close to the incident and saw Thevenin’s car roll forward after the shots were fired, according to a person briefed on his statements to investigators.
If nothing else, there is a good chance that French fired eight bullets for no good reason, and that the “car roll” excuse was a lie. And even so, there remains a logical gap between killing Thevenin and the excuse, since killing a driver doesn’t prevent a car from rolling, and is likely to cause it to happen, as the witnesses claimed it did. But that’s just logic, which plays no particular role in “split second decisions” made by cops with guns.
So did French commit a crime? We’ll never know, because Rensselaer County District Attorney Joel Abelove made sure he could never be prosecuted.
Rensselaer County District Attorney Joel Abelove declined to obtain a waiver of immunity from a Troy police sergeant when the officer testified before a grand jury that cleared him of wrongdoing in the shooting death of a Watervliet man, according to two people briefed on the matter.
In New York, even in the hinterlands, a grand jury witness receives transactional immunity for testifying in the grand jury, with the proviso that his testimony be responsive to the questions posed to him. That means that the state can’t prosecute French for anything about which he testified, like killing Thevenin.
But that’s just the start of the problems. After the killing, Abelove was informed that Attorney General Eric Schneiderman was “reviewing” the matter. That’s because Gov. Cuomo (the son) issued an order following the Eric Garner “no true bill” fiasco to put controversial cop killings into the AG’s hands when the state lege failed to come up with a solution.
So Governor Andy Cuomo felt the need to do something. From the AP:
With lawmakers unable to agree on an approach as the legislative session ended, Gov. Andrew Cuomo announced Tuesday he’d use executive power to appoint Attorney General Eric Schneiderman for a year as special prosecutor for police killings.
Schneiderman sits in the chair that was warmed by Cuomo’s butt before him, and Eliot Spitzer before Cuomo. Both used it to jettison themselves to glory in their quests to be governor, and turned it into an effective bully pulpit despite the fact that the AG job wasn’t really what they tried to make it out to be.
The attorney general isn’t really a criminal prosecutor, but the state’s “chief legal counsel.” While there are some prosecutorial functions, such as Medicaid fraud and charity oversight, it’s got no statewide general criminal authority. That’s what district attorneys are for, though you wouldn’t know it from the way Spitzer used the office.
Problem solved? Hardly. You see, Abelove is the elected District Attorney. He doesn’t answer to Cuomo. Cuomo doesn’t get to give him orders on how he is to perform the duties of his office. The district attorney’s duties are determined by law, and law is determined by the legislature. Handsome as Cuomo may be, he still doesn’t get to pronounce the law by executive fiat.
And Schneiderman’s “we’re reviewing” isn’t exactly the same as “we’re taking this over, so keep your untrustworthy local mitts off this cop,” anyway. Sure, Abelove could have been cooperative, but when the local DA doesn’t want to be, he can give the AG the middle finger any damn time he wants.
This is the part of the scenario that got the New York Times’ goat.
Mr. Cuomo must now deal with the case of a district attorney who simply defied his order. An investigation will determine whether Joel Abelove, the D.A. in upstate Rensselaer County, also committed acts of malfeasance that would obligate Mr. Cuomo to remove him from office. His conduct in this case has certainly raised doubts about his fitness to continue in office.
The governor has the authority to remove a district attorney from office, after notice and an opportunity to be heard, under the New York Constitution, Article XIII, § 13, so it’s not like Cuomo has no juice to get Abelove to behave himself. And that’s what the Times demands.
The governor’s order gives the attorney general the right to intercede “where, in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his or her death.” It requires that a district attorney get state authorizations before making grand jury presentations in cases where civilians were unarmed or where there is a question about whether the person was armed or dangerous.
The Times challenges Abelove for “rushing recklessly ahead” despite Schneiderman’s “reviewing” letter. In the process, it conflates the governor’s ability to dictate what an elected district attorney gets to do with what it mistakenly describes as the attorney general’s “right.”
The state attorney general’s office says that when the Troy case began to unfold, it informed Mr. Abelove that it was reviewing the matter, which meant that he was bound to refrain from actions that might jeopardize a possible prosecution. He plunged ahead, which is what the executive order was expressly intended to forestall. He hastily took the case before a grand jury — just five days after the shooting — and the jury failed to indict the officer.
Abelove did nothing recklessly. He wanted to immunize his cop, and that’s exactly what he did. This isn’t some vast mystery in the criminal justice system, but a game prosecutors can play to protect their own, their buddies upon whom they rely. No doubt Abelove has the undying support of the police, because he did what they would expect the district attorney to do. He covered Sgt. French’s butt.
Was this malfeasance of the most disgraceful sort? You bet it is. Abelove protected a potential killer by giving him transactional immunity. While it’s within the realm of possibility that Cuomo can remove him from office, that raises all sorts of political issues that have nothing to do with Abelove’s being complicit in a killing, an accessory after the fact.
So while Abelove’s decision to absolve Sgt. French of the killing is about as wrong a move as a prosecutor can do, his ignoring Schneiderman, and Cuomo, in the performance of his duties as an elected District Attorney means pretty much nothing. That’s what happens when executives think they can order others to do their bidding from their Albany thrones. And a killer cop walks.
H/T Hinterlands Correspondent Kathleen Casey, who has been on this from the start