by DARIEN LAMEN
ROCHESTER NY--As Rochester anxiously awaited the announcement from NYS Attorney General Letitia James Tuesday in the case of Daniel Prude, many attempted to read the signs for a hint of the news to come.
Many saw the newly-placed concrete barriers outside the downtown Public Safety Building as the surest sign that a Monroe County grand jury had decided not to indict Rochester police officers on any criminal charges related to the in-custody death of Daniel Prude in March of 2020.
But the state's track record in prosecuting these sorts of cases would have proven as good a predictor of the outcome as any sign or omen.
Since the New York State Attorney General's office first assumed responsibility for investigating and prosecuting police officers involved in the deaths of unarmed civilians, the OAG has not secured a single criminal conviction.
In fact, available records indicate the Attorney General has filed criminal charges in 6 of the cases it investigated since 2015. In 3 of those, including most recently the Daniel Prude case, a grand jury decided not to indict. In 2, the law enforcement officer was acquitted. The most recent, involving a single 2nd degree assault charge, has yet to go before a grand jury.
Dismal track record
The Office of the Attorney General first became responsible for investigating and prosecuting police killings of unarmed civilians in July 2015. Following the killing of Eric Garner by NYPD officers, Governor Cuomo issued an executive order giving the Office of the Attorney General "exclusive prosecutorial powers" for incidents "involving the death of an unarmed civilian caused by a law enforcement officer." State legislators recently enshrined that executive order into law last summer.
Since 2015, the OAG has assessed dozens of deadly encounters between civilians and law enforcement officers to see whether their office has jurisdiction as established in the governor's executive order.
Out of 163 incidents that occurred between 2015 and 2019, the OAG determined that just 28 of them--a little over 17%--met the necessary criteria, namely, that a civilian died, that the civilian was not armed or dangerous, and that a law enforcement agent caused the death.
According to biennial reports issued by the OAG, the overwhelming majority of incidents that office has assessed and investigated involves men of color. The average age of the people killed in those incidents was between 36 and 42. Over 90% were men. And according to the AG's report, nearly 80% of the incidents investigated between 2017 and 2019 involved civilians "who were displaying signs of a mental crisis."
"Strongest case possible"
During her visit to Rochester Tuesday, NYS Attorney General Letitia James said she was "very disappointed" with the grand jury's decision in the Daniel Prude's case.
"We presented the strongest case possible," James told a restricted audience of press and elected officials at Aenon Missionary Baptist Church. "But today the grand jury decided not to indict any police officer on charges related to Daniel Prude's death."
James would not disclose what criminal charges her office had presented to the grand jury, nor any details about that process, citing grand jury secrecy law. But she did release a report detailing her office's investigation that contains clues about the narrative and evidence prosecutors might have put forward.
The report prominently features the opinions of two "subject matter experts" the OAG retained during its investigation.
Most notably, the OAG's medical expert, Dr. Gary Vilke, contradicts the Monroe County medical examiner's determination that the primary cause of death in Daniel Prude's case was "homicide by asphyxiation in the setting of physical restraint."
"Dr. Gary Vilke opined that Mr. Prude’s ingestion of PCP precipitated a medical condition that he (and the Medical Examiner and the paramedic) deemed 'Excited Delirium.' He noted that people suffering with this medical condition are particularly vulnerable to death by cardiac arrest (as did the Medical Examiner), and he further concluded that it was this – cardiac arrest - that ultimately caused Mr. Prude’s death," the AG's report states.
Meanwhile, the OAG's use of force expert, Geoffrey Alpert, was asked to review the RPD officers’ conduct and techniques in restraining Prude.
"His assessment, upon reviewing the evidence in the matter, including the officers’ training, was that placing the spit sock over Mr. Prude’s head, taking him to the ground, and performing the 'segmenting' maneuver, were all within the scope of reasonable (though not best) police practices," the AG's report reads.
It's still unclear whether the AG's specially-retained expert testimony was part of what the AG's office presented to the grand jury. We may soon know more. But if so, it raises questions about why prosecutors decided to solicit and introduce secondary interpretations that sow doubt about the evidence already available in the medical examiner's report and body worn camera footage.
"Excited delirium" cited in 25% of AG investigations
The notion that Daniel Prude was experiencing "excited delirium" during his encounter with RPD officers emerges as a recurring thread throughout the AG's report, as anchored by Dr. Vilke's testimony. The report suggests in several places that this drug-induced "medical condition" made Prude vulnerable to cardiac arrest, which in turn was what caused his death--not the forcible restraint and newly trained technique of segmentation (a euphemism for using one's body weight to force a person's head into the ground) to which the handcuffed and naked man was subjected.
The AG's reliance on the concept of "excited delirium" is noteworthy because it is not widely recognized by the medical establishment as a medical condition. Moreover, criminal justice reform advocates have long warned that "excited delirium" and the idea that those experiencing it can exhibit superhuman strength and dangerous behavior provides a convenient alibi for police officers who use deadly force.
In fact, reference to "excited delirium" or a similar "excited" state appears in 8 out of 32 incidents the OAG has investigated since 2015--a full 25%. In all of those other cases, the AG determined that the individual died of cardiac arrest while in a drug-induced state of excitement, after also being restrained, kicked, or tased by police officers.
In all of those other cases, the OAG decided not to file criminal charges against the officers involved.
Following Tuesday's press conference, Attorney General James announced that the judge in the Daniel Prude case had agreed to unseal the minutes of the grand jury proceedings at her request.
"As I have contended throughout my entire career, there can be no accountability without transparency, and the public deserves to know what transpires behind closed doors," James said in a statement Tuesday night.
"That is why I filed a motion with the court to have the grand jury proceedings of this case unsealed and made available to the public, which the judge has just granted this evening."
It's unclear how soon the court might release that information. But when it does, the public may have more information by which to judge whether the Attorney General's office did indeed present "the strongest case possible" in Daniel Prude's case.
Editor's note: this story has been updated to include information about an active case in which the OAG announced charges in December 2020.
DARIEN LAMEN is news director/producer for Reclaiming the Narrative. He can be reached at firstname.lastname@example.org.