A New York State grand jury indicted Rensselaer County District Attorney Joel E. Abelove on charges of official misconduct and perjury on Friday afternoon. The indictment stems from Abelove’s concealment of evidence about the shooting of an unarmed black man by a Troy police officer, and allegations that Abelove lied during a subsequent investigation. According to the indictment, Abelove repeatedly interfered with Attorney General Eric Schneiderman’s efforts to investigate the killing of 37-year-old Edson Thevenin, who was shot eight times by police sergeant Randall French following a traffic stop gone awry.
Schneiderman, under Governor Andrew Cuomo’s 2015 Executive Order, is required to investigate and, if warranted, criminally prosecute cases in which police have killed unarmed civilians in New York state. In the immediate aftermath of Thevenin’s death, Schneiderman’s Special Investigations and Prosecutions Unit, requested that Abelove’s office provide copies of the investigative files about the shooting. Abelove, however, pointedly stymied Schneiderman’s investigation. Rather than provide the information to the Attorney General, Abelove presented a truncated version of the case to a grand jury that ultimately cleared French of any wrongdoing less than a week after the shooting.
“As we allege, District Attorney Abelove’s actions violated the law and undermined a criminal investigation,” said Attorney General Schneiderman. “The Governor’s Executive Order was designed to restore public confidence in our criminal justice system — yet the actions we detail today only served to further erode that confidence.”
Abelove’s efforts to shield a police officer from criminal liability for the shooting death of an unarmed civilian is exactly the type of conflict of interest that Cuomo’s Executive Order is meant to avoid.
On April 17, 2016, Thevenin was pulled over by French on suspicion of drunk driving. Following a short chase, where French claims Thevenin attempted to run him over, French shot Thevenin eight times through his windshield. By the next day, Troy’s mayor, its police chief, and its district attorney, Abelove, were in agreement about what happened: Thevenin had tried to run over French. Within four days, Thevenin brought the case before a grand jury, which decided not to indict French. However, just hours after the shooting, the state’s attorney general, under the 2015 Executive Order, had decided to investigate the shooting, asking Abelove to hand over investigative files relating to the case — and to hold off on convening a grand jury before the the AG decided whether to intervene or not.
Abelove ignored Schneiderman’s request and convened a grand jury anyway.
The first count of official misconduct against Abelove stems from allegations that he “knowingly withheld material evidence” from the grand jury. There are two potential pieces of information that should have been presented to the grand jury. First, two civilian witnesses came forward with accounts — including cell phone video — that directly undermined French’s justifications for the shooting. Abelove did not present either eyewitness account to the grand jury. Second, since Abelove convened the grand jury just four days after the shooting, the autopsy report on Thevenin had not been completed — denying the grand jury of evidence to potentially contradict French’s assertion that Thevenin was intoxicated.
Abelove’s handling of French’s own self-serving testimony led to the second count of official misconduct. Abelove compelled French to testify before the grand jury, but failed to require him to sign a waiver of his Fifth Amendment privilege against self-incrimination or immunity from prosecution before doing so. In failing to secure the waiver, Abelove effectively — and, according to the indictment, knowingly — immunized French from any criminal prosecution by the AG’s office.
It is incredibly rare for someone connected to a possible crime who is testifying in front of a grand jury to not sign a waiver of immunity from prosecution, and often police officers who feel that their testimony would implicate themselves do not sign the waiver and also do not testify in front of a grand jury.
The grand jury, hearing testimony only from police officers, quickly cleared French. It is highly unusual for a grand jury determination in a police-involved killing to be made in New York State in under a week — for example, the grand jury looking into the Eric Garner killing took over four months to come to a decision. In 2015, Abelove’s office presented a case to a grand jury involving a shootout between police officers and a suspect, Thaddeus Faison, who was eventually killed by the officers. The Faison grand jury issued its ruling more than 75 days after the incident. To many observers, the speed with which Abelove rushed the process in the French case was no mistake.
Schneiderman promptly sued Abelove following the grand jury’s decision, claiming that Abelove had “flagrantly violated” Cuomo’s executive order. The AG demanded that Abelove hand over all files relating to the case, stop investigating the case, and “annul” the grand jury decision. Abelove agreed to hand over the files and stop his investigation, but refused to vacate the grand jury’s decision.
Then, in September, Schneiderman empanelled a grand jury to investigate whether Abelove’s conduct constituted a criminal offense. In October, Abelove invoked his right to appear before the grand jury. The third count of the indictment returned today charges that Abelove lied to the grand jurors when he tesitified that his office had previously allowed an officer investigated for shooting a civilian to testify without signing an immunity waiver.
Schneiderman’s grand jury, unlike Abelove’s, heard testimony from multiple witnesses who claim that French’s life was not in danger when he fired on Thevenin. The grand jury also heard from a former prosecutor in Abelove’s office, Vincent O’Neill, who was fired by Abelove just days after being contacted by officials from Schneiderman’s office about the investigation.
The grand jury’s indictment against Abelove is an extremely rare example of a sitting District Attorney being criminally prosecuted while still in office. Most recently, Suffolk County District Attorney Thomas Spota was federally indicted as part of a cover-up of a beating of a man in police custody, and Philadelphia District Attorney Seth Williams was found guilty of taking bribes while in office and sentenced to federal prison.
The two counts of official misconduct are misdemeanors, while the perjury charge is a Class D felony. Abelove faces a possible sentence of seven years in prison and a fine up to $5,000 if found guilty.
The looming criminal charges aside, the political fallout from the French case remains unclear. Earlier this year, following community outcry that he do so, Abelove recused himself from a case involving the shooting of a Troy man by a police officer. Abelove cited the “high caseload” of his office as the need for the appointment of a special prosecutor.
It is unclear if Abelove will remain District Attorney following the indictment. Under New York State law, the governor has the power to remove District Attorneys. Abelove, a Republican elected as the Rensselaer County District Attorney in 2014, faces re-election next year.