Court Revives Misconduct Charges Tied to Probe of Police Shooting

ALBANY, N.Y. (CN) - Reinstating charges against a former prosecutor said to have withheld evidence in the probe of a police officer who shot and killed an unarmed man, a New York appeals court on Thursday upheld a new policy adopted in the wake of Black Lives Matter protests.

“Today’s decision is a big win in our efforts to ensure that justice is served and that no person, including elected officials, is above the law,” New York Attorney General Letitia James said, announcing the decision.

The case stems from the fatal shooting of Edson Thevenin in April 2016 by Sergeant Randall French with the Troy Police Department, following a car chase. Rensselaer County District Attorney Joel Abelove convened a grand jury to investigate, only to find himself charged instead by the state when that grand jury found that French’s use of force had been justified.

Prosecutors say Abelove rigged the French investigation by withholding material evidence and allowing French to testify before a grand jury without waiving immunity.

Though Abelove secured the dismissal of his indictment by challenging the state’s jurisdiction, the Third Judicial Department of the New York Appellate Division reversed Thursday, finding Abelove’s prosecution justified by executive orders put in place by Governor Andrew Cuomo.

“The Legislature … statutorily gave power to the Governor to call upon [the Office of the Attorney General] to conduct investigations,” Justice Robert Mulvaney wrote for a four-person panel. “That the statute and executive order must necessarily work in tandem does not diminish or eliminate the statute as a source of authority for OAG to conduct the investigation.”

Cuomo passed the first of the underlying executive orders in 2015, responding in part to protests over the nonindictment of a Staten Island police officer who killed Eric Garner.

Executive Order 147 appoints the state attorney general as special prosecutor in matters where a police officer kills an unarmed civilian or where, the attorney general has doubts about whether the civilian should have been considered “armed and dangerous.” 

Cuomo issued Executive Order 163 two years later, authorizing the attorney general to bring charges related to misconduct during grand jury proceedings in the Thenevin case.

Abelove was charged with two misdemeanor counts of official misconduct and one felony count of perjury.

Abelove argued that state law narrowly limits the attorney general’s investigative power, meaning that he could be prosecuted for perjury only with respect to investigations specifically delineated by the statute.

Presiding Justice Elizabeth Garry and Justices Michael Lynch and Eugene Devine concurred in Thursday’s ruling, which Attorney General James lauded.

“The grand jury found that former District Attorney Abelove abused his power and lied under oath in an attempt to sway a grand jury and impede our investigation – actions that are patently unlawful and unethical,” she said. “We look forward to continuing this case and ensuring that justice is truly served.”

Joshua Friedman, an attorney for Abelove with the firm Dreyer Boyajian, declined to comment on the ruling, citing a policy on pending litigation. Abelove’s law practice did not return a request for comment.

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