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New York’s Attorney General Just Indicted a District Attorney for Covering Up a Police Shooting of an Unarmed Black Man

Joel Abelove for District Attorney
Photo: Joel Abelove Facebook

New York’s Attorney General Just Indicted a District Attorney for Covering Up a Police Shooting of an Unarmed Black Man

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.

Meet The Prosecutor Turned Reality TV Star Who Runs One Of The Worst Offices In America.

Under District Attorney Steve Wolfson, prosecutors in Las Vegas have led the nation in new death sentences, repeatedly engaged in racist jury selection, and maintained a secret bank account to pay witnesses for their testimony in criminal cases.

Meet The Prosecutor Turned Reality TV Star Who Runs One Of The Worst Offices In America.

Under District Attorney Steve Wolfson, prosecutors in Las Vegas have led the nation in new death sentences, repeatedly engaged in racist jury selection, and maintained a secret bank account to pay witnesses for their testimony in criminal cases.

During the opening credits of Las Vegas Lawa 2016 Investigation Discovery show, a voice over announces, “Vegas. It’s exotic, exciting, excessive,” and the evenly-tanned face of the Clark County District Attorney Steve Wolfson appears. “I’m Steve Wolfson,” he says, “I’m not afraid of the cameras seeing what we do.”

Las Vegas Law is COPS for the lawyer set. There are men in suits — Clark County prosecutors — sitting around a sexy polished conference room table talking about evidence that is “devastating” to the case and problems involving proximate cause and admissible evidence: “That’s opinion; it’s not evidence.” The prosecutors weigh whether sex assault victims are credible or not: “Is that enough to overcome reasonable doubt?”

Drama notwithstanding, the television series accurately depicts a long-standing cowboy culture in the Clark County DA’s office, where lassos are replaced by legal pads. And while Wolfson, elected in 2012, promised to clean up the office and make it presentable for the 21st century – as evidenced by his willingness to put his actions on television – it’s far from clear that the office has changed substantially from its wild past.

Take the death penalty, for example. A 2016 report by the Fair Punishment Project found that Clark County was one of the “deadliest” counties in its disproportionate use of the death penalty. But, the report also found that nearly half of Clark County’s capital cases between 2010 and 2015 were plagued with prosecutorial misconduct, one of the highest rates of misconduct among counties that frequently seek the death penalty.

One of the attorneys responsible for this state of affairs is David Stanton, an old-school prosecutor from before Wolfson’s time, who is famous for vigorously pursuing capital cases. After he was fired from the Reno DA’s office in 1999 for problems with anger management, a speeding citation, and resisting arrest, Stanton subjected himself to counseling and moved to Vegas.Once in the Clark County office, Stanton distinguished himself with his zeal for punishment and his talent for sending men to death row. And Vegas had a lot of capital cases. At its zenith around 2011, just before Wolfson took over the office, Clark County had eighty pending capital cases, twice the number as Los Angeles, which has a population five times larger.

Wolfson took over the office after spending eight years on the Las Vegas City Council and promised to reduce the use of the death penalty by giving more scrutiny to each death-penalty eligible case. To his credit he has, by about half. But, he had steadfastly maintained that the death penalty is worth it no matter the cost even as case after case is vacated because of racial discrimination in jury selection. Further, he hasn’t substantially altered the composition of the staff attorneys, who are the ones regularly trying these capital cases. Stanton himself has sought and obtained eight death sentences in his tenure in Clark County, four under Wolfson, despite Wolfson’s promises to decrease the use of the death penalty. (In the first episode Las Vegas Law, Stanton tries a death penalty case, and Wolfson intones that he is “one of the best attorneys in the office.”)

Wolfson has also continued many of the dirty tricks that previous prosecutors used to ensure convictions. A recent investigation into Wolfson’s office found that for over two years, he maintained a Clark County tradition of paying witnesses for their testimony from a secret checking account and failed to disclose that information to the defense. The payments appear to have been substantial, including cash, rent payments, and relocation expensessometimes over $1,000 in amounts, totaling somewhere in excess of $300,000; prosecutors also allegedly created fake subpoenas to cover up the payments. One witness said that prosecutors knew she was using her cash to purchase drugs.

This was a particular problem in capital cases, contributing to the high number of overturned convictions. Once uncovered, Wolfson called the cash program “probably inappropriate,” and promised to change the practice to limit payments to costs associated with coming to and from the courthouse to testify, which is Nevada state law. (There was also a requirement that prosecutors maintain a database of such information, but news stories suggest it has not been maintained.) Stanton, for his part, steadfastly maintained that there was nothing unusual about the program, telling a judge in 2014 that there was no need to disclose to the defense the fact that the DA office was paying a witness’s rent payments.

In addition to keeping the line attorneys who continue the “old ways,” Wolfson has also inadequately addressed recent high-profile innocence cases. This year, a ProPublica story highlighted the wrongful conviction of Fred Stesse and revealed the sins of William Kephart. Kephart was a prosecutor in the Clark County DA office from the early 1990s until 2010, when he became a justice of the peace and then judge. As the investigation notes, Kephart has been cited in at least five instances of prosecutorial misconduct. The Nevada Supreme Court even admonished Kephart for mischaracterizing “reasonable doubt” in a capital case, adding, “[I]t is apparent that some prosecutors are not taking to heart this court’s repeated admonishments…We can no longer tolerate noncompliance.” The court also required Kephart to explain why he should not be sanctioned, which is highly unusual. Steese was pardoned this month, even though Wolfson’s office wrote a letter opposing the pardon.

Another one of Kephart’s cases to come recently under fire is the murder prosecution of Kristin Lobato. Lobato was prosecuted for killing and mutilating a man in 2001. She was finally convicted of manslaughter after two trials and has steadfastly maintained her innocence. In February of 2016, Kephart gave a television news interview about the Lobato case, as it had pending appeals. “I stand behind what we did. I have no qualms about what happened and how we prosecuted this matter. I believe it was completely justice done,” he said. The May 2017 complaint filed against Kephart argues that this statement contradicts Lobato’s innocence claims. Kephart, for his part, has said that he’s done nothing wrong.

But Kephart is far from the one bad apple in the bunch. Indeed, the entire culture of the office has remained tainted. Wolfson has succeeded in making incremental changes, but he has retained many of the staff members hired under the old regime and has not made any moves to rectify past mistakes. Instead, Wolfson has sought the limelight with such stunts like taking to Reddit to comment on O.J. Simpson’s fitness for parole. (His wife, retired Judge Jackie Glass, also has the acting bug. She replaced Nancy Grace on Swift Justice for one season until the show was cancelled and presided over O.J.’s 2008 robbery trial.) Wolfson recently announced his intent to run for re-election this year, ending rumors he might run for Senate.

The Clark County DA’s office isn’t the only one where prosecutors skirt the law and go unpunished. Rather, the infectiousness of misconduct is an example of why it is so difficult to discipline prosecutors. Indeed, time after time, prosecutors are named in misconduct complaints and manage to skate by because, as Kephart responded in his most recent complaint, they argue that being named is enough. Unlike the criminal defendants they seek to put behind bars, prosecutors are able to escape by minimizing the damage done to individual lives. And even when they are disciplined, their sanctions are so meaningless as to be laughable. In one 2002 sanction, Kephart was asked to pay a $250 fine.

Times may be changing. In response to the Stesse case, the Nevada legislature passed two laws intended to curb prosecutorial misconduct this session. Both measures were substantially watered-down from their original forms thanks to lobbying by an ADA’s from Wolfson’s office. None of the proposed laws help past victims of misconduct nor do they provide for penalties to deter prosecutors from future misconduct.

In the meantime, the main portrayal of the Wolfson’s office remains the spaghetti Western version available on the small screen. Some defense attorneys have argued that the show violates the rights of their clients. Final takes are approved by Wolfson’s office and the County also receives payment for each show. Many TV shows glorify the role of the prosecutor’s office, portraying them as gladiators fighting against people who are clearly bad folks we want off the street. “It’s like the defendants get the benefit of the doubt,” complains one Clark County ADA on the show, apparently forgetting yet again about the idea of “innocent until proven guilty.”

Thanks to Burke Butler.

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Cyntoia Brown Case Reveals Entrenched Problems with Tennessee Juvenile Justice

State law makes it easier to throw Brown away than consider traumas youth face and offer them hope of rehabilitation.

What’s the right thing to do when youth get into trouble? Daniel H. Birman, produced “Me Facing Life: Cyntoia’s Story,” an exploration of Cyntoia Brown’s life. The film includes guides for educators, facilitators and discussion of the larger issues her life represents.
Daniel H. Birman

Cyntoia Brown Case Reveals Entrenched Problems with Tennessee Juvenile Justice

State law makes it easier to throw Brown away than consider traumas youth face and offer them hope of rehabilitation.

In the whirlwind of news about men taking advantage of underage girls and male abuses of power in Hollywood, politics and beyond, the Cyntoia Brown case went viral 13 years after she was sentenced to life in prison, following this Instagram post by Rihanna:

Rihanna’s Instagram post about the Cyntoia Brown case.

In 2004, Brown was convicted of first-degree murder after fatally shooting Johnny Mitchell Allen, a 43-year-old Nashville real estate agent who solicited sex from her when she was 16. News stories have focused primarily on the plight of an unfortunate girl subjected to years of sex trafficking and other abuses, finally confronting and killing an abuser but nevertheless sentenced to life in prison for murder.

The redemptive and sexual abuse issues surrounding the case warrant attention, but Brown’s fate also reveals significant problems with Tennessee’s juvenile justice system. Specifically, the case of Cyntoia Brown highlights the need for Tennessee legislators to lift mandatory minimums for convicted juveniles and recognize youth have no place in the adult system, regardless of the offense.

People nationwide are mortified by Brown’s sentencing, including celebrities like Kim Kardashian, who lent her legal team to this cause. Understanding state law helps explain how we — and Cyntoia Brown — got here and what needs to happen next.

Tennessee’s 51-to-Life law

Although Brown was sentenced to life with the possibility of parole (at age 67) for killing a man who solicited sex from her as a minor, this is, indeed, the most lenient sentence possible under Tennessee law.

Under state law, only three sentencing options exist for those convicted of first-degree murder, no matter the age of the accused: death penalty, life in prison without possibility of parole and prison with the possibility for parole after serving 51 years.

The United States Supreme Court has ruled that sentencing a minor to death or a life sentence without the possibility of parole is unconstitutional cruel and unusual punishment. A separate Tennessee law also forbids imposing a death sentence on minors tried as adults.

Hence, the minimum sentence for a minor’s first-degree murder in Tennessee is a life sentence with the possibility of parole after 51 years.

Tennessee’s 51-to-Life law may not even be constitutional when applied to minor cases. In 2012, in Miller v. Alabama, the U.S. Supreme Court held that a mandatory life sentence without the possibility of parole violates the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. Youth advocates take the position that a mandatory 51-year sentence without parole is actually a life sentence because the average life expectancy in prison is about 50 years.

Unfortunately for Brown, the Tennessee Criminal Court of Appeals has disagreed and maintains the law is constitutional. Currently, about 183 individuals are serving a life sentence for crimes committed as minors.

The difference between youth and adults

The juvenile justice system was created based on the reality that youth do not have the mental capacity to fully appreciate wrongs. Since the Miller case, at least one state’s highest court, Iowa, has held even short mandatory sentences for juveniles are unconstitutional, stating, “mandatory minimum sentences for juveniles are simply too punitive for what we know about juveniles.”

In recent years, the Supreme Court has heavily relied on neurological and social science research indicating the developing minds of youth make them less culpable than adults.

For example, the Miller court leaned on guidance from the American Psychology Association, which concludes “youth are particularly prone to engage in and are vulnerable to high-risk situations” because “the part of a youth’s brain responsible for judgment and impulse control does not communicate in balance as an adult’s would, and therefore does not give juveniles the same degree of control over their behavior.”

The problem with Tennessee

The Cyntoia Brown case reveals problems with how Tennessee sentences youth exposed to childhood trauma when facing a first-degree murder conviction.

2004: 16-year-old Cyntoia Brown within three weeks following her arrest for murder. She’s in a juvenile detention center awaiting a transfer hearing to determine if she should be tried as an adult.
Daniel H. Birman

In Miller v. Alabama, the Supreme Court urges that individual mitigating factors must be taken into account when sentencing young people. Specifically, the court notes several factors to consider in youth sentencing, including the youth’s history of family violence, parental substance abuse, child abuse and mental health issues.

Unfortunately, the Miller Court’s 2012 mandate to consider childhood trauma as mitigating factors came too late to help 16-year-old Brown, originally sentenced in 2004. Brown’s jury did not get to hear information about how the girl was placed for adoption by her mother — only to be later kidnapped by her mother and sex trafficked. The jury also did not get to learn Brown showed signs of fetal alcohol syndrome because her mother drank heavily while she was pregnant.

Of her former pimp “Kutthroat,” Brown told an appeals court judge: “He would explain to me that some people were born whores, and that I was one, and I was a slut, and nobody’d want me but him, and the best thing I could do was just learn to be a good whore,” according to Newsweek.

Just like Brown, youth appearing in the juvenile and adult systems likely have exposure to a number of childhood traumas. According to a 2012 Sentencing Project survey of people sentenced to life in prison as juveniles, 79 percent witnessed violence in their homes regularly, and fewer than half attended school at the time of their offense. Of women handed life sentences as minors, 80 percent reported histories of physical abuse, and 77 percent reported histories of sexual abuse.

Yet, children exposed to childhood trauma fare no better today in Tennessee adult courts under the still-existing 51-to-Life law. The life sentence is mandatory in Tennessee first-degree murder cases, regardless of the accused minor’s age and traumatic experiences.

The enormous cost of housing youth offenders for life is also troubling under the state’s mandatory 51-to-Life law. According to an American Civil Liberties Union study, a 50-year sentence for a 16-year old costs about $2.25 million in public money to imprison one individual, based on national averages.

In Tennessee, where it costs roughly $27,000 to house a prisoner annually, individuals serving life sentences for convictions as minors cost taxpayers more than $4.9 million each year.

Tennessee’s 51-to-Life law also does not take into account the power of rehabilitation, and the fact minors who have made serious life-altering mistakes can change.

Despite bipartisan efforts and heavy support from youth justices advocates, legislative attempts that would let youth see parole possibility sooner have repeatedly failed. A measure supported by State Reps. Mike Stewart (D-District 52), Mark White (R-District 83) and Brenda Gilmore (D-District 54) that would make individuals convicted to life sentences as minors eligible for parole after serving 25 years failed in the 2016 legislative session.

In another legislative attempt in early 2017, a similar bill pushed by State Rep. Gerald McCormick (R-District 26) and State Sen. Doug Overby (R-District 2) that would make lifers convicted as teens eligible for parole after 20 years, also failed.

Minors on the move to adult courts

Cyntoia Brown’s case also highlights problems with Tennessee’s stance on transferring minors to adult criminal courts.

Minors who commit serious crimes such as murder are deemed beyond the rehabilitative resources of Tennessee juvenile courts. Thus, youth accused of crimes such as first-degree murder are transferred to the adult system, regardless of the youth’s traumatic upbringing or circumstances.

There is no minimum age for transfer of a minor in Tennessee for serious charges such as murder, rape or kidnapping. Youth as young as 14 are regularly transferred to adult courts under Tennessee law despite research showing adolescent brains are not as fully developed as adults.

Tennessee is not alone in this regard. According to the Equal Justice Initiative, Alaska, Delaware, Florida, Hawaii, Idaho, Maine, Maryland, Michigan, Pennsylvania, Rhode Island, South Carolina and West Virginia also have no minimum age for adult prosecution of children.

2005: Cyntoia Brown writes a note to her attorneys about her defense.
Daniel H. Birman

Under Tennessee transfer law, factors considered by juvenile courts in deciding whether to transfer youth to adult court do not include a young person’s exposure to childhood trauma.

Youth justice advocates argue that youth who experience trauma, like Brown, need rehabilitative services and protections supposedly afforded by juvenile courts the most.

Race and poverty also play a big part in youth outcomes. The transfer of juveniles to adult court is disparately impacted by race and poverty, with youth of color transferred at the highest rates. Young people of color are also more likely to face a life sentence because of the higher frequency of transfers to adult court.

Going beyond justice for Brown, now 29, seems necessary. Youth advocates are hopeful the Tennessee General Assembly will use the resurface of the Brown case to right some of the many quite obvious wrongs of the Tennessee juvenile system.

Demetria Frank is an assistant professor of law at the University of Memphis Cecil C. Humphreys School of Law. She teaches courses in evidence, federal courts and mass incarceration. The views expressed in this Commentary are Professor Frank’s and do not necessarily reflect those of In Justice Today.

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