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New York Attorney General Letitia James criticized for handling of Daniel Prude killing after Cuomo investigation

"What the investigation into Andrew Cuomo shows is that when her office wants to put resources towards conducting a thorough investigation, they know how to do that," an attorney for Prude's family said.

New York Attorney General Letitia James has been lauded for leading an intensive inquiry that led to Gov. Andrew Cuomo's resignation Tuesday. Now questions are being raised about whether she was equally diligent in pursuing the case against police involved in the death of a Black man in their custody last year in Rochester.

This month, James' office released a 165-page report documenting sexual harassment allegations against Cuomo from 11 women. Cuomo has denied improper conduct.

The report and the fallout have put a spotlight on James and renewed criticism of her office's investigation into the death in March 2020 of Daniel Prude, a Black man who died a week after he was held down by Rochester police on a city street on a frigid night during a mental health episode.

James' office did not persuade a grand jury to charge the officers who put a spit hood over Prude's head and pressed his naked body against the street. His death touched off weeks of protests of police treatment of Black people.

"What the investigation into Andrew Cuomo shows is that when her office wants to put resources towards conducting a thorough investigation, they know how to do that," said the Prudes' family attorney, Elliot Shields. "If her office had put the same focus and determination into securing an indictment of the police officers who killed Daniel Prude that they did towards bringing down Andrew Cuomo, they would've gotten an indictment."

Andrew Cuomo speaks in Albany on April 17, 2020.Matthew Cavanaugh / Getty Images file

James' office did not respond to requests for comment about the criticism of her handling of the Prude case. After the grand jury decision, James said her office had "presented the strongest case possible" and acknowledged that the outcome might disappoint many people.

Critics say the lack of an indictment is a black eye for the office of James, a progressive attorney general who openly challenged the National Rifle Association and former President Donald Trump and was unafraid to call out Cuomo — who had endorsed her for attorney general — for his handling of the state's response to Covid-19 in nursing homes. James has said the number of nursing home residents who died from Covid-19 may have been undercounted by as much as 50 percent.

Those accomplishments and the sexual harassment investigation into Cuomo only underline the profound disappointment some feel about her handling of the Prude case.

Rebecca J. Kavanagh, a defense lawyer in New York, said James "very successfully spun the failure to get an indictment" in the Prude case, "tweeting that she had done everything she could to secure justice for Mr. Prude — and most people seemed to buy that wholeheartedly."

Kavanagh compared James' actions to those of Kentucky Attorney General Daniel Cameron, who did not get an indictment of the police officers who killed Breonna Taylor in Louisville.

"Essentially, she had done exactly what Daniel Cameron had done in Breonna Taylor's case, but because she is a Democrat who is considered a progressive, it seems her actions weren't questioned," Kavanagh said. "Maybe the case wasn't as high-profile as Breonna Taylor's or Attorney General James had created this image of herself as a trailblazer prosecuting the NRA and Trump, but whatever it was, she essentially threw the case against the cops who killed Daniel Prude in exactly the same way Daniel Cameron did the cops who killed Breonna Taylor, and no one really blinked."

Cameron has said two of the officers who shot at Taylor were justified because her boyfriend shot at them first.

Taylor, 26, was killed in her apartment in Louisville during a botched police raid. A grand juror who spoke publicly said the jury was not given the option to consider homicide charges and accused Cameron of using the grand jury "as a shield to deflect accountability and responsibility" and of planting "more seeds of doubt in the process."

No one was charged in connection with her death. The grand jury indicted a former Louisville detective involved in the raid, Brett Hankison, on charges of wanton endangerment for firing shots without a clear line of sight that went into another apartment with people inside. He pleaded not guilty.

In Prude's case, critics say the blame falls to James because a low burden of proof makes it not particularly difficult for prosecutors to win indictments.

"The grand jury system is set up so that prosecutors present the evidence they choose to present," Kavanagh said. "A defendant can testify, but that's it. When police don't get indicted for killing people, it is because the prosecutor chose not to present a strong case."

Video of Prude's encounter with police was released in September after Shields obtained it through a public records request. Not long afterward, James met with Shields and Prude's family in Rochester and then convened a grand jury to review evidence, Shields said. Emails later made public showed that city officials tried to conceal the video.

Kavanagh and Shields said prosecutors overseeing a grand jury investigation into Prude's death undermined their case with testimony from Dr. Gary Vilke, a professor at the University of California, San Diego School of Medicine who regularly testifies on behalf of police.

Michael Schiano, an attorney for one of the officers who was at the scene when Prude was arrested, told The New York Times: "Prosecutors put on the case that we would have put on anyway. They put on the witnesses we would have put on if there was a jury trial."

Vilke said the officers' actions had no impact on Prude's breathing. Official police reports said Prude died of a drug overdose, but an investigation by the Monroe County medical examiner listed the manner of death as homicide caused by "complications of asphyxia in the setting of physical restraint" and cited PCP as a contributing factor.

Joe Prude, brother of Daniel Prude, right, and his son Armin, stand with a picture of Daniel Prude in Rochester, N.Y., on Sept. 3, 2020.Ted Shaffrey / AP

The medical examiner and the attorney general's expert both concluded that Prude was in a state of excited delirium because of his drug use. There is no universally accepted definition of excited delirium, which is used to describe a person's exhibiting agitated and aggressive behavior from drug use or mental illness.

According to a report by the Brookings Institution, a nonprofit public policy organization in Washington, the term is disproportionately applied to Black people and often used to justify police brutality.

The day before his encounter with police, Prude had been released from a hospital, where he had undergone a mental health check, said his brother, Joe Prude.

James' office asked the grand jury to consider charges against only three of the seven officers at the scene, according to minutes of the proceedings released in April. The names of the officers, as well as those of witnesses and jurors, were redacted. Grand jury proceedings are typically secret.

Officers who testified before the grand jury said that they used force because Prude did not follow their instructions to stay on the ground and that they placed the hood over his head because they feared contracting Covid-19 from Prude, who had been spitting and said that he had the coronavirus. Police body camera video showed that after officers restrained Prude, some of them stood around him laughing and smiling as he spoke incoherently. At one point, Prude asked for a gun, video shows.

James, whose office took over the investigation, said her office had "presented the strongest case possible." But Prude's relatives believe James and her office failed them and the public.

"These officers now are going to face no criminal liability," Shields said. "When they're standing around callously making jokes and laughing while he's sitting there dying, I mean, I can't see how you can watch that video and make the determination that there's no criminal liability. But that's the case her office presented."

Shortly after she failed to get an indictment, James proposed new criminal justice reform legislation — the Police Accountability Act — which she said would make it easier to prosecute police officers.

"In New York, our laws have essentially given police blanket defense to use force in interactions with the public, making it exceedingly difficult for prosecutors to go after officers who have abused this power," James said in May when she announced the legislation. "Not only is that gravely unjust, but it has also proven to be incredibly dangerous."

Kavanagh said the proposal was "smoke and mirrors."

Shields shares that belief.

"In theory, additional legislation making sure that police officers don't use excessive force against people is a good thing, but in this case, it was a response to her failure," Shields said. "She blamed the system, but she's the system that failed Daniel Prude."

Gloria Browne-Marshall, a professor of constitutional law at John Jay College of Criminal Justice at the City University of New York, said that even with progressive attorneys general like James, Dana Nessel in Michigan and Robert Bonta in California, "the system is so corrupted from a history of hundreds of years of racial bias that it's very difficult without reforming the system itself to have even progressive-minded people make a dent in what we see is a race-based criminal justice system."

"And so there is a criticism in California of Bonta, of Letitia James, of Nessel that they haven't done enough," Browne-Marshall said. "But the system itself is so skewed. It's very difficult to use such a skewed system in a way in which progress can be accomplished or even quantified."

She said she often wonders why prosecutors give up when they fail to secure indictments against police officers accused of harming civilians.

"There is no limit on the number of times in which prosecutors can put evidence before a grand jury and seek an indictment," she said. "My question is: Why do these prosecutors only do so once and then say: 'Oh, I'm sorry. We didn't get an indictment. We tried'?"

Browne-Marshall said the Prude case, like many others in which law enforcement officers are suspected of wrongdoing, highlighted the deference afforded to those accused of using excessive or deadly force. More than 1,000 people die in encounters with law enforcement officers in the U.S. every year, she said, but few officers are ever charged with murder for on-duty deaths.

"We get a relative handful of prosecutors who choose to actually attempt to get an indictment and we think we're seeing progress," Browne-Marshall said. "That's not progress."