Abelove Dismissed; New York Attorney General Reached Too Far

The notion of jurisdiction is both foreign and arcane to most people. Something wrong happened, and thus someone should be able to do something about it. In the case of Rensselaer County District Attorney Joel Abelove, the wrong he did in sabotaging the prosecution of Troy Police Sgt. Randall French for the killing of DWI suspect Edson Thevenin deserved scrutiny.

Before his downfall for kinky proclivities, feminist-ally, Trump-hater and then Democratic Attorney General Eric Schneiderman seized the opportunity to do that something. He indicted Abelove for first degree perjury based upon his testimony in a grand jury investigating his conduct. The case was set for trial on June 20, but Abelove moved to dismiss the indictment based upon the AG exceeding his (now hers, since Barbara Underwood has replaced the disgraced Schneiderman in the meantime) authority.

And Abelove, dirty as he may be, crushed the AG’s office and the indictment in a decision by Acting* Supreme Court Justice Jonathan Nichols.

It may come as a surprise to some that the New York Attorney General, despite the bravado about prosecuting Michael Cohen and perhaps his one-time benefactor, is not a roving prosecution. In fact, the AG’s prosecutorial authority is highly limited, and its office is regarded as decidedly second-string when it comes to handling prosecutions. They’re mostly civil lawyers defending the state in civil proceedings. They lack the chops and experience to handle criminal matters.

So what went wrong here? As is often discussed, words matter, and the authority given the AG stems from Executive Law §63(2), providing the governor, Andy Cuomo in this case, to “require” the AG to conduct a criminal prosecution. Cuomo issued an Executive Order that would authorize the AG to investigate and prosecute the killing of Edson Thevenin under a general order making the AG prosecutor in cases of police shootings. What Cuomo’s order neglected to do is authorize the AG to investigate and prosecute Abelove for his misconduct and perjury.

Absent an executive order conferring jurisdiction to prosecute Abelove on the AG, there was none.

But in a complicated 10-page decision signed on Monday, Justice Jonathan D. Nichols questioned the scope of the authority included in the Thevenin executive order and ruled that the attorney general’s office “was without jurisdiction and hence unauthorized to appear in front of the grand jury,” in relation to the perjury charge.

The decision wasn’t complicated at all, except to someone who refuses to grasp that the AG isn’t an omnipotent super-prosecutor. Granted, this might be hard to believe, given the adoration poured on the AGs office for its pursuit of trendy causes, but it nonetheless remains the law.

More to the point is that the AG could very easily have been given the jurisdiction by Governor Andy, had he simply issued an appropriate executive order doing so. Instead, they relied on a chaos theory of authority stemming from the dubious general order and winding its way down to Abelove’s perjury.

Amy Spitalnick, a spokeswoman for Barbara Underwood, the state’s new attorney general, said her office was “determining how best to move this critical case forward.”

“Our indictment detailed a disturbing pattern of misconduct that violated the law and undermined a criminal investigation,” Ms. Spitalnick said. “We respectfully disagree with the court’s decision.”

It’s certainly true that the indictment detailed some serious wrongdoing by Abelove in his effort to cover Sgt. French’s butt for killing Thevenin. But that’s got nothing whatsoever to do with the limits of the AG’s jurisdiction. Even if this was the worst murder ever, the authority to prosecute stems from statute and is limited to only that which the governor requires of the AG.

What Abelove did was a terrible wrong. All the more reason for the junior varsity not to blow it. Abelove’s sabotage of the prosecution of Sgt. French was a travesy and worthy of prosecution, but that doesn’t mean sad tears from the AG’s office are a substitute for competence. The statute was clear. The executive order relied upon is dubious, but clearly falls short of second tier prosecution of an elected DA.

This could have been easily remedied, had Schneiderman, as Attorney General, told his boss, Gov. Andy, to issue another executive order conferring jurisdiction on his office to prosecute Abelove. Or had Gov. Andy, also a lawyer, just figured out how law works on his own or through his counsel. None of this happened.

Law isn’t rocket science, but it also isn’t an episode of Queen for a Day. Edson Thevenin’s killing has gone untested, unprosecuted, because the Rensselaer District Attorney, Joel Abelove, decided to kill it. Now Abelove will go unprosecuted because the AG and governor blew it. No sad tears will compensate for what happened here. Thevenin’s killing demanded better than this.

*For reasons that have nothing to do with this case, many New York Supreme Court Justices are “acting” because they are borrowed from other posts, such as Criminal Court or Court of Claims, to fill spots because of a need for justices and inadequate number of positions created by statute. It’s utterly common for “acting” justices to serve for decades until they retire.

6 thoughts on “Abelove Dismissed; New York Attorney General Reached Too Far

  1. KATHY MANLEY

    Well, maybe this helped in getting the NYS Senate to pass the bill to set up a Commission on Prosecutorial Conduct. S2412D – They just passed it 44-12. Now it goes to the Assembly where I believe it is expected to pass.

      1. KATHY MANLEY

        I had zero faith in them and was shocked it came up for a vote and was passed in the Senate by such a big margin. It seems to be a goodbye gift to Sen. DeFrancisco who was a big supporter of it. We”ll see if the other pieces actually fall into place. (The Senate was thought to be the major obstacle.)

  2. KATHY MANLEY

    It just passed the Assembly 86-35. Gov. is expected to sign, but if not, both votes were more than 2/3 so should be veto proof. Looks like it will happen.

    1. Scott Jacobs

      Even if it becomes law, it has to actually be used.

      I somehow suspect that prosecutors will not be eager to punish prosecutors for conduct a large number of them, to some degree, engage in.

  3. Keith

    Now Abelove will go unprosecuted because the AG and governor blew it.

    Update (by way of the NY Law Journal):

    “State Attorney General Barbara Underwood’s office has filed a motion to reargue the dismissal of charges against Rensselaer County District Attorney Joel Abelove, who was accused of perjury and misconduct in a matter stemming from his office’s handling of a police-involved shooting last year.”

    “Our indictment detailed a disturbing pattern of misconduct that violated the law and undermined a criminal investigation,” Underwood Spokeswoman Amy Spitalnick said in a statement. “As we’ve said, we respectfully disagree with the court’s decision, and have now filed both a notice of appeal and a motion to reargue.”

    “The use of all three terms in executive order 163 signifies the governor’s intent to confer very broad authority on the special prosecutor,” the motion said.

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