Rensselaer D.A. Should Be Punished for Trying to Sabotage Police Shooting Investigation

The best example of why local prosecutors cannot be trusted to investigate police shootings of civilians is the conduct of Rensselaer District Attorney Joel Abelove, who recklessly and unlawfully has tried to prevent a fair and thorough investigation into a fatal police shooting of an unarmed civilian. Abelove last month knowingly defied the request of state Attorney General Eric Schneiderman, made pursuant to Governor Andrew Cuomo's Executive Order appointing Schneiderman as special prosecutor, to refrain from investigating the case, and to turn over his files to the attorney general's investigators. Instead, Abelove rushed the case into a grand jury, apparently gave the police officer immunity, did not call two key civilian witnesses who saw the shooting and disputed the officer's account, and then got the grand jury to clear the officer.

Edson Thevenin, a 37-year-old African-American, was shot to death by Sgt. Randy French in the early hours of April 17 when he was pulled over by French for allegedly driving while intoxicated. The police claim that Thevenin fled in his vehicle, was briefly chased by police cruisers, and after Thevenin's car allegedly struck French, French shot him eight times through the windshield, striking him four times in the head, and four times in his body. Thevenin was unarmed. French claims he suffered minor leg injuries in the encounter. Thevenin's wife claims a police detective told her that her husband died in a car accident

Schneiderman's office immediately got involved. They went to the scene, but were rebuffed by the police. Schneiderman the next day informed District Attorney Abelove that his office was reviewing the case, directed Abelove to take no action pending Schneiderman's review, and sent him a letter requesting the files. Notwithstanding Schneiderman's explicit and repeated directives and requests, Abelove quickly empaneled a grand jury, apparently called only two police witnesses, and gave the grand jury legal instructions. The grand jury found no basis to indict the officer.

Schneiderman thereafter sued Abelove in court to invalidate Abelove's defiance of the law, which according to Schneiderman, flagrantly violated the Governor's Executive Order, "flew in the face of the public concerns," effectively sneaked the case through the grand jury without notifying Schneiderman's office, and presented the case in such a partisan, police-friendly manner as to undermine the integrity of the grand jury process. Moreover, as the lawsuit suggests, Abelove was hardly a fair and impartial prosecutor sworn to serve the cause of justice. He acted in bad faith, and abused his power. Indeed, this is the first time that a local district attorney has attempted to violate the Governor's Executive Order, but it should not surprise anyone. Abelove himself in an Op Ed in the Times Union eight months ago mocked the idea of a special prosecutor, arguing that he had "grave concerns" over the Governor's order, that the order was confusing and contradictory, and that he would not succumb to a "vocal minority" and refrain from prosecuting police shootings of civilians despite the Governor's order.

Several questions need to be resolved. First, did Abelove grant Sgt. French, who fatally shot Thenevin, immunity from prosecution? If he did, why? And if he did give French immunity, can that immunity be rescinded if Schneiderman decides to open his own investigation and bring formal criminal charges? Moreover, what did the two civilian witnesses see? It appears that one of the witnesses saw the entire incident and gave the police a written statement. A second witness allegedly took a cellphone video of at least part of the incident and claims that Sgt. French may have opened fire before the car struck French. Of course, if French shot and killed the motorist before he was shot, it's hardly a surprise that the car, now driven by a dead motorist, may have lurched forward. The testimony of these witnesses may determine whether French killed Thevenin without legal justification. Schneiderman's lawsuit also claims Abelove is withholding information of these witnesses from his investigators.

A final question is whether Abelove should be investigated by the Third Department's disciplinary committee for his willful defiance of the law. Abelove, recently-elected, has rather quickly come under ethical scrutiny for conflicts of interest, first, in a case involving a political crony in which he should have disqualified himself, and second, in a case involving a fellow Republican politician charged with embezzlement. For sure, his present conduct in flaunting the governor's order and then secretly undermining the attorney general's investigation almost certainly involves misconduct in violation of Rule 8.4 of the rules of professional conduct, which prohibits all lawyers, including prosecutors, from "engaging in conduct that is prejudicial to the administration of justice." It is hard to imagine a stronger case of a prosecutor engaging in conduct that undermines the administration of justice than a prosecutor deliberately violating a lawful order of a government official.

Interestingly, the distinguished Lippman Commission's recent Report on statewide attorney discipline felt it was not necessary to create a special disciplinary body to investigate misconduct by prosecutors. According to the Commission's Report, "The Commission has no reason to doubt that the grievance and disciplinary committees diligently examine claims of prosecutorial misconduct that come to their attention." Abelove's misconduct, one can be certain, has come to the attention of the Third Department's disciplinary committee. His conduct should be investigated. Hopefully, the Lippman Commission's confidence that "the disciplinary committee does its job and the system is working" is justified.