Much Ado About Nothing: Attorney General Eric Schneiderman’s “Groundbreaking” Reforms

Isaac Lara, CLS ’17

The recent decision by Cook County State’s Attorney Anita Alvarez to return charges in the police shooting of Laquan MacDonald more than a year after his murder have raised questions again over whether local prosecutors are capable of impartially investigating police shootings. After all, many local prosecutors depend on law enforcement agencies in collecting evidence, producing testimony for criminal trials, and supporting them during their political campaigns. Such relationships can create conflicts of interest that undermine the public’s confidence in the judicial system to secure justice for victims of police homicides.

To address this problem, some state elected officials have advocated transferring authority for the investigation and prosecution of police-caused civilian deaths to state attorneys general. New York Attorney General Eric Schneiderman is one of the nation’s leading proponents for such a move. At Schneiderman’s behest, in 2015, Governor Andrew Cuomo issued Executive Order 147, which removed authority from local district attorneys over certain types of police-caused civilian deaths and transferred special powers to investigate police shootings to the Attorney General’s Office. Schneiderman himself touted the novelty of the action, suggesting that New York’s approach would eliminate the conflict of interest that may exist when district attorneys investigate law enforcement. He even went so far as describing it as a huge step towards stopping mass arrest and mass incarceration.

However, Schneiderman may have overestimated how effective his new powers really are. While these new prosecutorial powers may draw national headlines, models like Schneiderman’s are unlikely to have a strong impact on removing the conflict of interest that exists between district attorneys and law enforcement.

1. The Attorney General’s Office Already Has the Power to Intervene in Police Shooting Cases

First, Schneiderman’s new prosecutorial powers are not nearly as new or groundbreaking as he has described. The common law in New York already confers upon the Attorney General the authority to bring charges against defendants or intervene in criminal proceedings.[1] For example, in People v. Miner, the New York Supreme Court delineated the power to conduct and intervene in prosecutions of “certain classes” of criminal cases.[2] While this case alone may not justify the inference of power to intervene in any criminal proceeding—such as a police-caused civilian death—it, combined with later opinions, can generally be interpreted to apply to all types of state crimes.[3]

Subsequent case law also demonstrates the broad powers that the New York Attorney General has in prosecuting defendants relative to other law enforcement agencies. For example, in Johnson v. Pataki, the Court ruled that district attorneys do not operate in a “zone of independence” that shielded them from intervention from the Attorney General because the state constitution had not designated a specific—let alone exclusive—prosecutorial duty upon them.[4]

2. The New York Attorney General Lacks the Requisite Expertise and Resources

Second, the New York Attorney General’s office generally lacks the expertise and resources that district attorneys typically have in criminal prosecutions. After all, before Schneiderman’s transfer of power, the vast majority of the Attorney General’s criminal prosecutorial powers were statutorily limited to financial schemes such as securities fraud, money laundering, consumer fraud conspiracies, and occasionally organized crime.[5] Some of the notable homicides they have independently prosecuted without the assistance of outside agencies were based off referrals from local prosecutors involving either cold cases or elder abuse. On the other hand, district attorney offices like Robert Johnson’s in the Bronx have handled nine cases of fatalities involving the NYPD, as well as two nonfatal cases in the past year alone.

Given the office’s limitations, it is hard to believe that the Attorney General would be capable of adequately investigating a homicide case involving police officers, which is an extremely complex matter warranting extensive investigative resources, especially in the first few hours after an incident. Schneiderman, for his part, has argued that he is willing to dispense an unlimited amount of money from his office to support his new prosecutorial duties. However, little effort has been spent in showing how his office would ensure taxpayer funds are spent efficiently.

3. District Attorneys Still Remain Involved in the Investigation

Third, Schneiderman’s new prosecutorial powers are superfluous given the continuing involvement of district attorneys in police shooting cases. For example, after Governor Cuomo issued Executive Order 147, Schneiderman directed all of the state’s 62 district attorneys to conduct a preliminary investigation into any police shooting case before it is transferred to his office. This preliminary investigation includes interviewing witnesses, drafting search warrants, and collecting evidence, among other responsibilities.[6] Such an instruction therefore undermines the purpose of the Governor’s executive order, which was to strip district attorneys of their jurisdiction over police shootings.[7] Thus, Schneiderman has permitted New York’s district attorneys to remain part of the investigative process despite his purported lack of confidence in them to conduct impartial investigations in police shooting cases.

More importantly, though, since both the Attorney General and district attorneys are obligated to follow the Governor’s executive order as issued, any attempt by Schneiderman to amend that order by delegating a portion of an investigation to district attorneys may be unlawful. After all, only the Governor may amend a legal executive order.[8] This makes it likely that the evidence collected by district attorneys during the preliminary stages of an investigation will be challenged by opposing counsel as inappropriately obtained.

4. Conclusion

Although New York Attorney General Eric Schneiderman praised Governor Andrew Cuomo’s executive order to transfer cases involving police-caused civilian deaths from local prosecutors to his office, he may have overstated its efficacy. First, his office already possesses the power to intervene in police shooting cases without the executive order. Second, even if Schneiderman chooses to manage these cases, his office still lacks the requisite experience and resources to manage the increasingly complex investigations to which district attorneys are already accustomed. Third, the executive order itself is redundant in that it strips district attorneys of their jurisdiction over police shooting cases because of presumed bias, while still requiring them to be part of the preliminary investigation.

Therefore, Schneiderman—who has never prosecuted a crime, let alone a homicide—faces difficulty in explaining what impact his “new” powers will ultimately have on police-involved shootings. Perhaps a more effective response than Executive Order 147 would have been to lobby the state legislature to reduce the broad legal latitude that officers currently have in determining what constitutes a reasonable risk to his or her own safety. That would help alleviate the perception of a conflict of interest by reducing the high barriers that district attorneys face in convicting police officers for shooting unarmed civilians. It would also ensure that the families of those who lost their lives during encounters with the police have a fair opportunity to obtain justice.

[1] Earl H. De Long, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Crim. L. & Criminology 358, 362 (1934).

[2] People v. Miner, 2 Lans. 396 (N.Y. App. Div. 1868).

[3] Long, supra note 1, at 363.

[4] Johnson v. Pataki, 229 A.D.2d 242 (N.Y. App. Div. 1997).

[5] NY CLS Exec. § 63.

[6] E-mail from Eric Scheiderman, Att. Gen., State of New York, to District Attorneys of the State of New York (July 13, 2015) (on file with author).

[7] “Such appointment of a special prosecutor will supersede in all ways the authority and jurisdiction of a county district attorney to manage, interpret, prosecute or inquire about such incidents.” New York Exec. Order No. 147 (July 8, 2015) (emphasis added).

[8] NY CLS Const. Art. IV, § 1.