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Gov. Andrew Cuomo will grant the state attorney general’s office the authority to investigate Rensselaer County District Attorney Joel E. Abelove for his handling of the fatal shooting of a DWI suspect by a Troy police officer last April.
The office of Attorney General Eric Schneiderman sought authorization from Cuomo’s office last year after information surfaced that a Troy police investigation of the shooting had been incomplete when Abelove presented the case to a grand jury, which cleared the officer who fired the shots less than a week after the shooting.
“Real questions have been raised here, and we owe it to the community and the victim’s family to get to the bottom of them,” said a source familiar with Cuomo’s decision.
At the time Abelove presented the case to a grand jury, the attorney general’s office was reviewing whether to investigate the shooting according to the terms of an executive order Cuomo signed two years ago giving Schneiderman the authority to intervene in Betebet cases in which unarmed citizens are killed during police encounters.
Schneiderman’s office said Abelove did not notify them that he was putting the case before a grand jury.
The attorney general’s ongoing investigation of the shooting death of 37-year-old Edson Thevenin is examining whether the incident unfolded as police officials described — with the officer firing eight shots through the windshield of Thevenin’s Honda sedan after the vehicle allegedly pinned the officer’s legs against his police cruiser.
People familiar with the investigation but not authorized to comment publicly said the attorney general’s investigation has raised questions about whether that narrative is correct.
Schneiderman needed a referral from the governor to initiate a formal investigation of a sitting district attorney — an authority which has been granted sparingly in New York’s history, according to legal experts.
Another person familiar with the case said Schneiderman’s office retained a private forensic specialist who visited Troy in early December to examine the car Thevenin was driving on the night he was killed. The forensic specialist also went to the shooting scene, according to two people familiar with the probe.
Troy police officials said Sgt. Randall French opened fired that night following a brief vehicle pursuit when he jumped out of his car and was trapped between his cruiser and Thevenin’s vehicle, which was boxed in by two police cars. Thevenin was not armed, but police said under the circumstances they believe he was using his vehicle as a weapon, and the officer feared for his safety. Thevenin had a prior conviction for DWI.
Abelove’s office issued a statement less than a week after the shooting saying a grand jury reviewed evidence in the shooting and found no wrongdoing by police. “Specifically, the grand jury found that Sergeant Randall French’s use of deadly physical force was justifiable under the law,” the statement from Abelove’s office said. “The grand jury considered the evidence and has passed on charging Sergeant French with any crime relating to the death of Edson Thevenin.”
Schneiderman’s office subsequently filed a court case seeking to reopen the investigation, and accused Abelove of doing an “end run” around the executive order Cuomo issued last year.
Abelove initially prepared to fight the attorney general’s action, but subsequently agreed to settle the matter, including giving Schneiderman’s office access to his case files and the grand jury minutes.
Schneiderman first asked Cuomo to give him the authority to intervene in cases involving fatal police encounters in December 2014, following a grand jury’s decision not to file charges in the controversial death of Eric Garner. The Staten Island man died when a police officer placed him in a chokehold as officers confronted him for selling untaxed cigarettes.
The governor’s executive order limits the attorney general’s intervention to cases where there are questions about whether an unarmed civilian posed a threat to police at the time the civilian was subjected to deadly force.
“This crisis of confidence is long in the making and has deep roots,” Schneiderman wrote in his December 2014 letter to Cuomo. “A common thread in many of these cases is the belief of the victim’s family and others that the investigation of the death, and the decision whether to prosecute, have been improperly and unfairly influenced by the close working relationship between the county District Attorney and the police officers he or she works with and depends on every day.”
According to a person familiar with the Thevenin case, the attorney general’s investigation is using forensic testing to determine the angle of the shots that pierced the windshield in relation to where French was positioned when each shot was fired. The forensic work is evaluating the trajectory of the bullets to determine whether the officer was moving or in the path of Thevenin’s vehicle when he fired his weapon.
The Times Union previously reported Abelove did not require French to waive his immunity from prosecution when the officer testified before the grand jury that cleared him of wrongdoing five days after shooting. The decision by Abelove to not have the officer sign an immunity waiver shocked some legal observers and has raised questions about the validity of the grand jury’s determination to clear the police officer.
French has remained on administrative leave since the incident.
Two civilians told police they witnessed the shooting and did not believe French was in imminent danger when he opened fire. The witnesses, Keith Millington of Cohoes and Phillip E. Gross III of Troy, were both interviewed by Troy police and the Attorney General’s office. Abelove has declined to say what steps his office took, if any, to subpoena Millington or Gross or otherwise try to get them to testify before the grand jury.
On April 29 — the same day the Times Union asked the Attorney General’s Office about the accounts by the civilian witnesses — Cuomo signed an executive order giving Schneiderman’s authority to investigate and prosecute any “unlawful acts or omissions by any law enforcement officer” involved in Thevenin’s case.
That order, however, did not include Abelove, who is a constitutionally elected district attorney.
A rarely invoked provision of the state constitution empowers the governor to remove any district attorney “who shall fail faithfully to prosecute a person” who may have violated the law. However, district attorneys also have broad discretion about when to pursue a criminal prosecution.
A federal lawsuit was filed Sept. 15 on behalf of Thevenin’s widow, Cinthia, and the couple’s two sons. The federal complaint alleges civil rights violations, including assault and battery. “At no time was Sgt. French, or any member of the Troy Police Department in physical danger when French opened fire into Edson’s car,” it states.
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