Former New York Chief Judge, and inmate, Sol Wachtler famously wrote in 1985 that “if a district attorney wanted, a grand jury would indict a ham sandwich.” Most people focus on the end of the quote rather than the beginning: If a district attorney wanted. Perhaps the problem for Attorney General Letitia James is that she’s not a district attorney.
Unlike most other states, the attorney general in New York isn’t a law enforcement position. The AG is basically the civil attorney for the state, while county district attorneys prosecute criminal offenses. After the Eric Garner fiasco, where the Staten Island District Attorney Daniel Donovan sabotaged the indictment, Governor Andrew Cuomo issued an order authorizing the attorney general to prosecute police killings. It made a lot of sense from a conflict of interest perspective, but the problem was that the AG’s office lacked trench experience in prosecuting cases. Sure, they did some cases, but not a lot and, well, they weren’t very good at it.
But after the video of Daniel Prude’s death in Rochester went public, and viral, the new AG and former New York City Public Advocate, Tish James, was on it. There is nothing, but nothing, she would have wanted more than to secure indictments against the police officers involved. And, of course, how hard could it be to indict a ham sandwich? Too hard for James, apparently.
On a snowy night last March, Daniel Prude sprinted shirtless out of his brother’s home in Rochester, N.Y., seemingly in the grip of a psychotic episode. Distraught, his brother called police for help.
Instead, the officers handcuffed Mr. Prude, placed a mesh hood over his head and pressed him into the pavement until he lost consciousness.
While the New York Times description of what happened to Daniel Prude is misleading and woefully inadequate, it nonetheless reflects how little it should take to spin the facts into an indictment. Bottom line is that the cops handling of Prude was outrageously callous and ended in death while in police custody. For the purpose of an indictment, that’s pretty much all that’s needed. Any prosecutor who wanted an indictment of these cops should have been able to get one.
On Tuesday, the New York attorney general, Letitia James, announced that none of the officers who arrested Mr. Prude would face charges in connection with his death. A grand jury convened by Ms. James to investigate the case declined to charge any of the seven officers on the scene that night with a crime.
How is this possible?
“The criminal justice system has demonstrated an unwillingness to hold law enforcement officers accountable in the unjustified killing of unarmed African-Americans,” Ms. James said, her voice growing emotional at a news conference at Aenon Missionary Baptist Church in Rochester. “What binds these cases is the tragic loss of life in circumstances in which the death could be avoided.”
So the problem wasn’t James, or her office, or handling of the presentation, or even the citizens sitting as grand jurors who heard the evidence, if only one sided, and were duly instructed by an assistant attorney general as to what they law is and what they should do, again only one sided, and then vote. No, the problem was “the criminal justice system.” A district attorney could indict a ham sandwich, but Tish James couldn’t indict killer cops, and it’s the “system.”
When James announced the “no true bill,” it must have been humiliating. She immediately turned to the court to seek an order permitting disclosure of the grand jury minutes, which are otherwise secret. To be fair, she sought the same relief in the Eric Garner case, when she was public advocate, but that was to show that Donovan ditched the indictment. This is different
In an unusual move, a Monroe County Court judge, Karen Bailey Turner, on Tuesday evening granted the attorney general’s request to release minutes related to the grand jury’s investigation, records that are generally protected under seal. “The public deserves to know what transpires behind closed doors,” Ms. James said. The date to make the documents public has not been set.
It is unusual, and for good reason. Defendants against whom an indictment are sought remain presumptively innocent, which they remain until such time as they plead guilty or are convicted. When a grand jury refuses to return an indictment, that’s not an opening to have accusations against presumptively innocent defendants revealed to the public and tried in the court of public opinion.
In this case, however, it’s not as if Schrödinger’s cat isn’t already out of the bag, even if the grand jury transcript remains under seal. The names of the cops are known. The video went viral. Rochester erupted in protest and scandal. The public knows what happened, whether they deserve to or not.
Ms. James noted Tuesday that legal standards can make prosecuting police officers particularly challenging. “The system too often allows officers to use deadly force unnecessarily and without consequence,” Ms. James said.
While this is certainly true, that’s not the problem here or the reason for seeking unsealing of the grand jury minutes. The only person charging the grand jury on the law is the AAG. The prosecutor owns it. They are the “system” in the grand jury. No, this is about Tish James’ need to prove to the public that her office, she, didn’t sabotage the grand jury presentment to let the cops walk. This is about her humiliation at failing to get indictments against these cops. This is about her inability to indict a ham sandwich.
“Daniel Prude was in the throes of a mental health crisis, and what he needed was compassion, care and help from trained professionals,” Ms. James said. “Tragically, he received none of those things.”
There is little doubt that Daniel Prude didn’t have to die and shouldn’t have died, and that the handling of his situation by the officers was disgraceful and awful. That doesn’t make it criminal, but that’s usually a determination made before grand jury presentment or at trial. When it fails at the grand jury stage, it’s either because a District Attorney ditches the case or, now, the presentment was handled by Attorney General Letitia James.
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