Inside the Secretive Legal Process That Can Shield Police From Charges

NEW YORK — Her voice heavy with emotion, Letitia James, New York’s attorney general, stepped onto a church dais in Rochester in February to announce that a grand jury had declined to indict the police officers who were involved in the death of a Black man in their custody. “I’m disappointed — extremely disappointed,” James said. Her office had presented the jurors with what she called an extensive investigation into the death of the man, Daniel Prude, whom the police pinned facedown on the pavement until he lost consciousness. “We sought a different outcome than the one the grand jury handed us today,” James said. Sign up for The Morning newsletter from the New York Times But transcripts of the grand jury proceedings, released publicly by a judge last month at James’ request, tell a more complicated story. Grand jury proceedings almost always remain secret, and the transcripts of the inquiry into Prude’s death provide a rare view into the inner workings of the criminal justice system at a pivotal moment in the continuing national debate over police accountability. In a grand jury proceeding, prosecutors typically present a one-sided case in hopes of securing a criminal indictment. But during the inquiry into Prude’s death, lawyers from James’ office chose to present both sides of the case, effectively acting as prosecution and defense and telling the grand jury upfront that its purpose was to investigate the facts, not necessarily to indict. Some of the witnesses who were called by prosecutors appeared to absolve the officers of wrongdoing. The revelation prompted fierce criticism of James specifically and anger more broadly over a legal process that often seems to shield the police from criminal consequences. The transcripts underscore the crucial role that grand juries play in deciding whether police officers are charged — or more often, not charged — for encounters that turn deadly. The transcripts also illuminate the particular challenges of prosecuting officers, even for a law enforcement official like James, who campaigned on criminal justice reform and sued the New York Police Department this year over its handling of protests touched off by the killing of George Floyd in Minneapolis. Only prosecutors may call witnesses during grand jury hearings, and jurors never hear from the defense. In the case involving Prude’s death, prosecutors from James’ office called police trainers who testified that the officers who restrained him did not violate protocol with their techniques. The state's lawyers also presented a California doctor who is known for defending police actions. He said the officers had not caused Prude’s death. Another expert witness, a professor from South Carolina, testified that the police had used unreasonable force by failing to roll Prude onto his back after he stopped resisting. The prosecutors also questioned two officers who were facing potential indictment, asking why they had resorted to hands-on restraint instead of trying to de-escalate the situation or show more compassion. At least one juror struggled to reconcile the contradictory testimony. “It seemed like one expert had an opinion that there was no improper anything done,” said a juror whose name was redacted from the transcript. “And then, another expert had an opinion that there was some — something that was not quite properly done, am I correct?” Prosecutors told the juror it was the jury’s job to decide whom to believe. The release of the transcripts just days before Derek Chauvin, a Minneapolis officer, was convicted of murder in Floyd’s killing reignited outrage in Rochester, where the revelations surrounding Prude’s death touched off fiery protests last year. Citing the transcripts, some community leaders accused James’ office of deliberately presenting a weak case. James said in an interview that the investigation was an earnest effort to let the jury reach an independent conclusion. “It was really critically important that the grand jury engage in an exhaustive and comprehensive analysis of the facts,” she said, adding that the outcome was a result of laws that give police officers broad protections to use deadly force on the job. “These are incredibly tough cases to investigate and prosecute, but ultimately I respect the grand jury’s decision,” James said. “All of us continue to be disappointed by the criminal justice system as a whole.” On Friday, James proposed legislation that she said would strengthen police accountability. The proposal includes allowing officers to use force only as a last resort and establishing criminal penalties for officers who violate the guidelines. Prosecutors in cases where there may be a strong defense, particularly those that involve potential police misconduct, can present all sides to a grand jury; doing so can indicate how trial jurors may react to evidence. Whether James’ prosecutors presented the strongest case they could is difficult to determine, said Geoffrey Alpert, the expert from South Carolina who testified before the Rochester grand jury. “If the purpose of the grand jury is to get an indictment, then no, they could have called different witnesses,” Alpert said in an interview. “If the purpose of the grand jury was to give jurors several different perspectives, then they did.” But Michael Schiano, a lawyer for one of the officers, said that to him, it was as if the prosecutors put on a case for the defense. “Prosecutors put on the case that we would have put on anyway,” Schiano said. “They put on the witnesses we would have put on if there was a jury trial.” The transcripts show that two of the three Rochester officers who were facing potential indictment testified before the grand jury. Although the targets of investigations rarely testify, legal experts said it is more common in cases involving the police, particularly where an officer is claiming to have acted in self-defense. The officers testified that they decided to use force after Prude did not follow their instructions to stay on the ground. “We told him to calm down, and he’s telling us he wants to take our firearms,” one of the officers, whose name is redacted in the transcripts, said. “And then we tell him to stay down and he still tries to get up.” Prude encountered the Rochester police March 23, 2020, shortly after he became emotionally unstable and sprinted out of his brother’s home. Fearful for Prude’s safety, his brother called 911. Responding officers found Prude several blocks away. He was naked and spitting and claiming that he had the coronavirus. They put a mesh hood, or spit sock, over his head and handcuffed him, then pressed his head to the pavement until he lost consciousness. Although it was snowing, no one covered his body or helped him when he vomited, body camera footage shows. Prude died a week later. The medical examiner determined that his death was caused by factors that included oxygen deprivation and PCP drug intoxication. Body camera footage showed Prude becoming more agitated after the officers placed the hood over his head. The officers said they feared contracting the coronavirus. Karen Friedman Agnifilo, a former high-ranking official in the Manhattan district attorney’s office, defended James, saying the attorney general was constrained in her ability to prosecute the Rochester officers because of the broad legal protections provided to the police. “Until that law changes, this will keep happening over and over again,” Friedman Agnifilo said. Prosecutors in Minnesota did not have to rely on a grand jury to charge Chauvin. Their counterparts in about half of all states, including New York, can only bring felony charges after convincing grand jurors that there is probable cause that crime was committed, a fairly routine exercise. When the defendant is a police officer, the outcome is less certain. About 1,000 people a year in the United States die in encounters with law enforcement, but few officers are ever charged with murder or manslaughter for deaths in the line of duty. Of those that are, only one-third are convicted. Six years ago, after a Staten Island grand jury failed to indict the officer involved in the death of Eric Garner, an unarmed Black man who was placed in a police chokehold, Gov. Andrew Cuomo established a special unit in the attorney general’s office to prosecute such cases. The idea was to remove such prosecutions from local district attorneys, who often work closely with the police. But in the 43 investigations that unit has investigated since then, only three officers have been charged, according to the attorney general’s office. About one-quarter of the investigations remain active. Prude’s family did not see how he died until the summer. The video became public in September after their lawyers demanded that city officials release the body camera footage. Revelations of an apparent cover-up led to the firing of Rochester’s police chief and the suspension of the seven officers involved. James brought the case before a grand jury shortly after that. The transcripts revealed James’ selection of an important expert witness: Gary Vilke, a San Diego doctor who is typically hired by the police to defend them. (All witnesses’ names were redacted in the transcript, but some were easily identifiable.) Vilke testified that the weight of the officers pressing on Prude’s back and legs did not impair his breathing, the transcript showed, leading him to conclude that the officers had not contributed to Prude’s death. In an interview last month with a local Minneapolis television station, Vilke said it was “doubtful” that Chauvin had caused Floyd’s death. Peter Neufeld, a civil rights lawyer who has sued police officers, said it was “incomprehensible” that prosecutors chose Vilke, whom he described as a reliable defender of police. “You’re unfairly undermining your case before you get started,” Neufeld said. Vilke did not respond to multiple requests for comment. James said that Vilke had offered his expert opinion and did not tell the grand jury how to vote. She added, however, that his comments about Chauvin, which came after the case involving Prude concluded, were troubling and would “factor into any selection moving forward.” After the grand jury decided not to charge the Rochester officers with homicide, James met privately with local Black faith leaders. The Rev. Myra Brown, pastor of Spiritus Christi Church, said she confronted James there about her office’s failure to obtain an indictment. James said it was her office’s ethical obligation to lay out all the facts, Brown said. To people like Brown, James’ words of extreme disappointment ring hollow now. “Clearly she wasn’t disappointed enough to send in any real scholarship presenting an airtight case to at least get us an indictment,” Brown said, “and at least get the Prude family their day in court.” This article originally appeared in The New York Times. © 2021 The New York Times Company

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Navajo Nation Becomes Largest Tribe in U.S. After Pandemic Enrollment Surge

ALBUQUERQUE, N.M. — The Navajo Nation already had its own police academy, universities, bar association and court system, plus a new Washington office near the embassies of other sovereign nations. And during the coronavirus pandemic the Diné, as many prefer to call themselves, gained an important distinction: the most populous tribal nation in the United States. A rush to secure federal hardship benefits increased the Navajo Nation’s official enrollment to 399,494 from 306,268 last year, according to the Navajo Office of Vital Records and Identification. That jump was enough for the Diné to eclipse the Cherokee Nation, which has an enrollment of about 392,000. The tribe’s growth, which came while it was enduring some of the nation’s most harrowing virus outbreaks, could affect the disbursement of future federal aid as well as political representation in the Southwest. The Navajo Nation reservation, which is larger than West Virginia, spreads over about 27,000 square miles of Arizona, New Mexico and Utah. Sign up for The Morning newsletter from the New York Times “This is the brighter side to a really bad time in the pandemic when we watched so many people go,” said Traci Morris, executive director of Arizona State University’s American Indian Policy Institute. Morris, a member of the Chickasaw Nation in Oklahoma, said that while several tribes saw their enrollment increase during the pandemic, the 30% spike in the Navajo Nation was particularly notable. The Cherokee Nation, which normally sees about 1,200 applications for enrollment each month, has seen an increase to about 1,400 a month since the middle of last year, said a spokeswoman for the tribe. Official tribal enrollment can often be lower than a tribe’s actual population because of factors including migration from reservations to urban areas and the different policies that the 574 federally recognized tribes in the United States have for determining membership. Some tribes, like the Diné, have relatively more stringent requirements than others that have loosened such rules. Over the past year, thousands of Diné scrambled to update their enrollment information or to enroll officially for the first time to receive payments the tribe was directly distributing from its share of the Coronavirus Aid, Relief and Economic Security Act. Those payments of up to about $1,350 per adult helped many Diné weather a protracted period of economic instability while Navajo leaders put into place some of the country’s most aggressive virus mitigation tactics, including curfews and checkpoints. The Navajo Nation has also outpaced much of the rest of the country in vaccinating its population; nearly 90% of those on the reservation who are eligible have received at least one shot. At the same time, at least 1,297 citizens of the Navajo Nation have died from the virus. Residents have been particularly vulnerable because of a high prevalence of diseases like diabetes, the scarcity of running water for washing hands, and homes with several generations living under the same roof. Although Navajo enrollment numbers climbed during the health crisis, some experts think the official statistics undercount the actual Diné population. The Census Bureau has not announced how large it considers the Navajo Nation based on data collected during the 2020 census. Wendy Greyeyes, an assistant professor of Native American studies at the University of New Mexico, noted that most Diné live off the reservation, away from the offices that keep up with enrollment figures, and that the Navajo Nation maintains stricter citizenship requirements than many other tribes. The Navajo Nation requires members to be at least one-quarter Diné, in contrast to tribes like the Cherokee that forgo a specific blood quantum requirement in favor of largely basing citizenship on having Cherokee ancestry. “Living in Albuquerque, I’ve met so many members who don’t qualify for the minimum enrollment, or they may be enrolled in another tribe and cannot double enroll,” said Greyeyes, who is from Kayenta, Arizona, on the Navajo Nation reservation. Greyeyes, who assisted people wanting to enroll in the tribe in recent months, also emphasized that the process can be bureaucratically complicated, potentially keeping some Diné from becoming citizens. “It’s not an easy process,” Greyeyes said. “How do you prove your blood descent? You need to get the paperwork for your parents, the paperwork for everybody.” As the tribe has been growing, so has its political power. Diné politicians have recently made inroads in local races in places like southern Utah, and voter turnout in the Navajo Nation, which leans Democratic, is credited with helping President Joe Biden win Arizona in 2020. The Navajo Nation’s population growth is also a sign that efforts to strengthen self-determination among tribal nations are gaining momentum, building on a shift that began more than five decades ago under the Nixon administration. Previously, in the 1950s and 1960s, the federal government had adopted a policy of dismantling tribal sovereignty and encouraged thousands of Native Americans to leave reservations for American cities. Eric Henson, a citizen of the Chickasaw Nation and a research fellow with the Harvard Project on American Indian Economic Development, said the Navajo Nation’s growing enrollment stood in sharp contrast to federal policies during the 20th century that were “literally an attempt to get rid of all the tribes.” Henson said of the surging Diné numbers, “This is a really obvious way of saying, ‘Hey, we’re still here.’” This article originally appeared in The New York Times. © 2021 The New York Times Company

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Mayor Accused of Fraud Has New Problem: Drug Charges for Her Husband

The husband of the mayor of Rochester, New York, was arrested Wednesday after police said they discovered drugs and guns in searches of his car and home, the latest crisis for the mayor in a year continually whipsawed by scandal. Mayor Lovely Warren’s husband, Timothy Granison, 42, was accused of being part of a midlevel cocaine trafficking ring and charged Thursday with drug and gun possession in what prosecutors said was the culmination of a seven-month-long investigation. Six other people were charged in connection to the case, and additional charges are expected, according to the Monroe County district attorney. Sign up for The Morning newsletter from the New York Times Warren was not charged with a crime, and prosecutors have not suggested she was a target of the investigation. A lawyer for Granison said Warren had no involvement with anything of which he is accused. But Granison’s arrest, and the discovery of 31 grams of powder in his possession that the police believe is cocaine — as well as a semi-automatic rifle and an unregistered handgun in Warren’s home — threatened to once again upend Warren’s reelection campaign. The episode was the latest in a series of scandals linked to Warren, who is seeking her third term as the mayor of Rochester, a small city just south of Lake Ontario. Last summer, the city was rocked by revelations of an apparent cover-up of the death of Daniel Prude, a Black man who died in police custody, which led to the firing of its police chief and censure of top officials. In the fall, Warren was indicted by county prosecutors on campaign finance charges for financial fraud during her 2017 reelection campaign. She has pleaded not guilty. In an address from City Hall on Thursday, Warren said she was the victim of a vast conspiracy to discredit her just a month before the city’s Democratic primary election. She accused the New York State Board of Elections of manipulating the evidence in its case against her, and suggested that the district attorney was framing her because she was angry the mayor had supported her opponent. And Warren intimated that the timing of Granison’s arrest and next court date — June 21, the day before the primary — had been designed to prevent her reelection. “People will try anything to break me,” Warren said. She described the recent events biblically, as her “Job year,” and denied any involvement in Granison’s troubles; the mayor and her husband had long ago signed a separation agreement, she said, but continued to co-parent their 10-year-old daughter. At a news conference Thursday, Sandra Doorley, the Monroe County district attorney, repudiated Warren’s accusations. “I’m sure there are going to be people out there who think this was politically motivated,” Doorley said. “It was not.” Doorley described Granison as a player in a “narcotics ring,” adding that the investigation was ongoing and more arrests and searches were expected. More than 2 kilograms of crack cocaine and powder, worth about $60,000, as well as more than $100,000 in cash, were recovered across searches of the homes and other property of the seven people arrested. “We believe this whole organization was a midlevel drug organization that was affecting the city of Rochester,” Doorley said at the conference, adding that the quantity of drugs recovered was considered “significant.” Granison has had past run-ins with the law: When he was 17, he pleaded guilty to second-degree robbery after serving as a getaway driver in a jewelry store robbery. He was sentenced to five years' probation. On Thursday, he pleaded not guilty to one count of criminal possession of a firearm, and two counts of criminal possession of a controlled substance, and was released on his own recognizance. Doorley said that investigators were also assessing whether the semi-automatic rifle was legal, and said he could face charges related to that weapon if it was not. John L. DeMarco, Granison’s lawyer, said that his client also wanted to stress that his wife had not been involved. “The mayor has played no role in any of this,” DeMarco said. “Other than merely being a resident of the home, there is no involvement.” Officials declined to specify what sparked the initial investigation, but Doorley said that Granison was not one of the original targets. About three months ago, conversations captured on police wiretaps revealed he played a role, she said. Police are seeking to interview Warren but have not yet done so, according to Maj. Barry C. Chase, a troop commander with the state police. Officials declined to comment on whether the mayor was heard on the wiretap. This article originally appeared in The New York Times. © 2021 The New York Times Company

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