Brooklyn Boro

Should the attorney general’s role investigating police be expanded? It’s not clear she wants that anymore.

November 13, 2019 Noah Goldberg
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When Kwesi Ashun was shot and killed by a police officer in Brownsville in October, his death triggered the same question that arises every time a New York cop uses lethal force: Who will investigate the killing?

Ashun allegedly hit veteran NYPD officer Lesly LaFontant in the face with a metal chair on Oct. 25 inside Goldmine Nails spa, after the two got into a violent confrontation over the arrest of another man who police say urinated on the salon’s floor.

One of the responding officers used a Taser on Ashun in a failed attempt to subdue him. Ashun hit LaFontant in the head with the chair, and LaFontant shot Ashun six times, killing him, according to the police account.

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The NYPD has not released any body camera footage from the incident, nor has any footage been released from inside or outside the salon. LaFontant was placed in a medically induced coma for a weekend and was released from the hospital days later in a wheelchair.

The case is being investigated by the Brooklyn district attorney — not the state’s attorney general, who investigates police killings only when the victim is unarmed. But a bill in the state legislature could change that, investing the attorney general with the power to investigate all police killings, regardless of circumstance.

But Attorney General Letitia James — who campaigned in 2018 on expanding the attorney general’s powers as special prosecutor — refused to signal support for the bill when asked about it by the Brooklyn Eagle.

Goldmine Nails spa, where Kwesi Ashun was shot and killed by police after allegedly hitting an officer with a chair. Eagle photo by Noah Goldberg

Addressing the need for oversight

In any New York case where a civilian is killed by police, there is an investigation by either the local district attorney or the state attorney general.

That investigation determines whether or not the use of lethal force was justified and  whether or not the cop in question will face criminal charges. The investigating attorney can also deliver recommendations to the police department based on their findings.

Police killings of unarmed individuals have been investigated by the attorney general in New York since Gov. Andrew Cuomo signed Executive Order 147 in 2015, largely as a response to the Staten Island district attorney declining to indict NYPD officer Daniel Pantaleo over the chokehold death of Eric Garner. Before that, police killings were investigated by local prosecutors.

Former Attorney General Eric Schneiderman brought a case against the officer who shot and killed Delrawn Small in Brooklyn in 2016. The officer was acquitted of all charges. In the Crown Heights killing of Saheed Vassell, Attorney General James did not press criminal charges, but did outline recommendations for the NYPD to avoid similar situations in the future.

Cuomo has since called for the executive order to be codified into law, but no bills have been passed to do so.

Expanding the attorney general’s role

Two New York state politicians — Assemblymember Nick Perry of East Flatbush and State Sen. Jamaal Bailey of the Bronx — introduced legislation early this year that would make that executive order permanent.

Not only would the Perry-Bailey bill codify Executive Order 147, it would also expand the role of the attorney general to investigate all killings by police — not just those in which the victim is unarmed.

“The bill makes explicit all cases of police killings and deaths would be handled by the attorney general, and they can’t be punted to the district attorney,” said Joo-Hyun Kang, who runs Communities United for Police Reform, which helped draft the language of the bill and also pushed for the 2015 Cuomo executive order.

The attorney general is not investigating the case of Kwesi Ashun. The case is in the hands of Brooklyn District Attorney Eric Gonzalez, presumably because Ashun’s alleged use of a chair as a weapon means he was “armed” — and is therefore out of the executive order’s purview.

Kang and other reform advocates argue that district attorneys’ daily work with police is a “conflict of interest,” precluding impartial investigation of officers who use lethal force, whether or not the person killed was armed.

“There’s always been doubts as to the fairness of how those cases are handled when they go through the normal process of an elected county prosecutor’s office,” said Assemblymember Perry.

“Regardless of the incredibly thoughtful, rigorous investigators who comprise local prosecutors’ offices, there is a lot to be said for even the appearance of lack of objectivity in evaluating these cases,” said Lucy Lang, the executive director of John Jay College of Criminal Justice’s Institute for Innovation in Prosecution.

Lang, who worked for Manhattan District Attorney Cy Vance, said that whether local district attorneys seem too close with police — or conversely, too antagonistic toward them — the intertwined nature of the departments makes for a complicated relationship when it comes to investigating officers.

“One of the major upsides of having a statewide agency take the jurisdiction is that, one, it communicates to the public that at the state level these cases are of the utmost priority,” Lang said. “It also eliminates any appearance of possible impropriety of a local prosecutor being too connected to local law enforcement such that they would be unable to be objective.”

“The district attorney works with police every day and relies on them to make their cases and do their job. They can’t be impartial,” said Constance Malcolm, whose unarmed son, Ramarley Graham, was shot and killed by police in the Bronx in 2012. An initial indictment of the officer on manslaughter charges was later thrown out by a judge. A grand jury declined to indict the officer the second time around.

“Time and time again [district attorneys] fail to get justice. That’s why we need the attorney general to be special prosecutor to these cases,” said Malcolm.

The Perry-Bailey bill did not pass in the legislature this past session in Albany.

Attorney general’s stance is unclear

Attorney General Letitia James has not explicitly thrown her support behind the bill, though she does want the executive order codified into law.

“I would hope that they would codify [the executive order], that was our position in the last legislative session,” James told the Brooklyn Eagle. But she also said she doesn’t support an unfunded expansion of the executive order.

“I oppose an unfunded mandate and so I look forward to working with the governor and the legislature so that if there is an expansion there are resources behind it,” she said.

“We’ll have to figure out what the math looks like in order to effectuate it,” said State Sen. Jamaal Bailey of his bill. “You never want to create extra work that is of such a significant value without putting the proper resources behind it.”

Attorney General Letitia James (center) and District Attorney Eric Gonzalez announce a lawsuit against ICE over civil immigration arrests in and around courthouses. Eagle photo by Noah Goldberg

During her campaign for attorney general in 2018, James promised to not only codify but, “expand [the attorney general’s] role as Special Prosecutor.”

“Tish James will push to expand and codify the attorney general’s role as special prosecutor to serve, not just in cases ending in death of civilians, but cases in which civilians are injured, or have been victims of sexual assault or hate crimes by police,” a press release from her campaign said in Aug. 2018.

But when the Eagle followed up on James’ comments, the Attorney General’s Office would not provide a direct response about what expansion James now supports, or whether or not she still supports an expansion of her office’s responsibilities as special prosecutor.

The office provided the following statement:

“Our top priority is to keep New Yorkers safe and ensure that justice is served. The Special Investigations and Prosecutions Unit in the Office of the Attorney General is committed to executing thorough and exhaustive investigations of every case that falls under our jurisdiction pursuant to Executive Order 147. We will continue to follow the facts of every case we investigate and work tirelessly to provide the transparency and accountability that all our communities deserve.”

Constance Malcolm, the mother of Ramarley Graham, said she’s disappointed by James’ reticence.

“During her campaign, James supported expanding the special prosecutor for all cases including sexual assault cases and instead since she took office she has been interpreting the executive order too narrowly,” Malcolm said. “She’s narrowed it down.”

“The executive order was a real step toward accountability in cases of police killings. But it’s too narrow now. The way it was written, now too many cases end up being left out,” Malcolm said, saying she wishes the attorney general would come out in support of the Perry-Bailey bill.

But Assemblymember Perry took a softer stance .

“I’m pretty relieved that she is not opposing it,” he said.

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  1. I wouldn’t say the bill “expands” the AGs power. What it could do, however, is to reallocate power and place it under the AG. This may not be a good idea because it takes away responsibilities and jurisdiction from other officials.