Dear Member of the New York State Legislature:
It is palpable. Confidence and trust in our criminal justice system has been challenged in recent months. New Yorkers don't need to be reminded by the events in Baltimore that relations between police and communities are as delicate as they are fundamental to the foundations of society. Before Freddie Gray, deaths such as that of Eric Garner raised questions about the relationship between police departments and the communities they serve, particularly for men of color.
The fundamental problem is the erosion of trust and respect between the police and communities of color. This breach manifested itself in the Eric Garner case, and similar cases in New York, in creating the perception of a conflict of interest between district attorneys and victims of police violence. I have met with all sides on this issue and the feelings are sincere and deep. The victims' families believe the relationship between the police and the district attorneys is too close and interdependent for the district attorneys to be objective. The victims' families believe that the solution is the appointment of a standing special prosecutor who handles all police misconduct cases and supersedes, automatically, the state's 62 district attorneys in any such case. As Governor, I currently have the power to appoint a special prosecutor through the Attorney General's office if I believe the need is warranted. The Attorney General volunteered, at the time of the Eric Garner case that he should serve as such a special prosecutor. The district attorneys, independently elected prosecutors themselves, believe the exact opposite: that they can be objective in handling cases involving police misconduct and they have a track record that proves they can be objective. They are against a special prosecutor appointment as an abrogation of their sworn duty.
After discussions with all parties, I have proposed a legislative package which I believe addresses both the substantive issues and lack of confidence in the system. Under my proposal, the district attorneys are given the benefit of the doubt and are not superseded until a reason exists that suggests bias or wrongdoing. Thus, I would initially leave such cases to the district attorneys to present to a grand jury. However, I would also reform the grand jury system to increase transparency by mandating that in such cases, there is public disclosure of the district attorneys instructions to the grand jury as to which charges they should consider. I believe the release of the charges is in the public interest and can be done in a way which does not jeopardize the secrecy of the grand jury process.
In my proposal, if no true bill is found by the grand jury and thus there is no indictment of a police officer but there are reasonable doubts as to the fairness of the proceeding, the Governor, in his or her discretion, could appoint an independent monitor who could then review the case and have access to all the evidence and grand jury material. The independent monitor would report back to the Governor as to whether the case was handled irregularly or if there was error or wrongdoing. After such report, the Governor -- with the benefit of a substantive review -- could make an informed decision to appoint a special prosecutor or not. If a special prosecutor was appointed, he or she could convene a second grand jury to re-present the evidence.
I believe this is a balanced approach that affords the district attorneys the benefit of the doubt but also provides a safeguard in the event there is bias or wrongdoing in the system.
I also believe, as do the victims' families, that it is inarguable that something needs to be done, and needs to be done this year. To that end, in the event the legislature cannot arrive at a resolution on the matter, I will exercise the power that I have under existing law and, as pointed out by the Attorney General, appoint a standing full-time special prosecutor for any case in the state in which an unarmed person is killed as a result of police action. While I do not believe this would be the best outcome, I believe it would be better than the status quo.
There are those in the legislature who say that nothing needs to be done and that there is no problem. This is wishful thinking and frankly they are in denial. The lack of confidence in the system by such a large segment of the population in and of itself is a problem. It's not relevant whether one thinks the distrust is merited, the existence of the distrust must be addressed.
I believe the entire reform package I have laid out for the legislature is the best course of conduct and I hope the legislature acts accordingly. But at the end of the day I will do everything I can to improve the justice system in perception and in reality, and work to restore the trust.
GOVERNOR ANDREW M. CUOMO
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