Former NYPD Top Prosecutor: Precedent for Cuomo to Empower Independent Investigator for Cops who Kill

New York City’s district attorneys may not have been thrilled with Attorney General Eric Schneiderman’s letter Monday to Gov. Andrew Cuomo requesting that the governor give the AG’s office the power to investigate and prosecute cases where police officers kill unarmed civilians, but one former prosecutor in the Brooklyn district attorney’s office agrees that a special counsel should be appointed for such cases if the public’s faith is to be restored in the criminal justice system.

“The governor can do it, the governor should do it,” said Arnie Kriss, who was an assistant district attorney in Brooklyn before serving as the NYPD’s deputy commissioner for trials in the late 1970s and early '80s. “Whether it’s in Ferguson, whether it's in New York, whether it’s in Syracuse, it is a feeling that DAs are too close to the cops … and all five [New York City] DAs—they’re all honorable guys, but my sense is that they should give this up because it will go a long way to restoring the public’s confidence in the system.” 

Kriss has unique experience in these circumstances. As an ADA in Brooklyn in 1974, Kriss helped indict a 24-year-old police officer named William Walker in the fatal shooting of a black college student named John Brabham, though Walker was not convicted.

The state’s Executive Law empowers the governor to direct the attorney general to investigate police killings of unarmed civilians in the line of duty. It also provides for the governor to designate a special prosecutor within the attorney general’s office to investigate such matters—a measure championed by Senate Democrats, who introduced a bill on Tuesday that would provide funding through the state budget for such an office. 

While Senate Minority Leader Andrea Stewart-Cousins said she would be fine with either scenario, Kriss would prefer to see the latter option. 

“Eric Schneiderman is a superb attorney general,” said Kriss, who was also a Democratic candidate for Brooklyn District Attorney in 2005, "but he runs for reelection, he receives endorsements from police unions—and that also in my mind raises a perception issue.”

There is a precedent for the appointment of a special prosecutor by the governor. In 1972 Gov. Nelson Rockefeller directed then-Attorney General Louis Lefkowitz to appoint Maurice Nadjari as special prosecutor to investigate corruption within the NYPD, which had been exposed by whistleblowers Patrolman Frank Serpico and Sergeant David Durk and later shown by the Knapp Commission to be a problem of staggering proportions.

Nadjari, widely viewed as an aggressivelone-wolf prosecutor with a knack for embarrassing those in power but little talent for convicting them, wrote in a 1974 edition of the Hofstra Law Review that Gov. Rockefeller had appointed him as a “Special Deputy Attorney General” and, in addition, the governor had taken “the extraordinary step of giving the Attorney General power superseding those which New York City’s five district attorneys have within their respective counties as to the specific subject matter jurisdiction encompassed within the Orders.”

A polarizing figure, Nadjari’s image as the bane of the political establishment endeared him to the city’s alienated voter base. His inability to win important cases—he indicted 11 judges without convicting any of them—could as easily be construed as further evidence of the system’s hopelessly corrupt state as proof of his incompetence. But several years later Nadjari was out of the job and the task of corruption-busting was given over to the county prosecutors.

Even though Cuomo could appoint a special prosecutor today, the real problem is how to fund an entire office devoted to this focus statewide. The Senate Democrats' proposal is unlikely to pass with Republicans in control of the chamber.

Given its current makeup, Congress might be even less likely to approve federal spending for states to use for such a program. But other funding avenues could at least be explored. To this day, New York City maintains a special prosecutor’s office for narcotics—also an outgrowth of the '70s—that is primarily financed through the city budget.

In his letter to Cuomo, Schneiderman made clear that his request for the power to investigate such cases would be on a temporary basis; it would “expire when the Legislature acts to permanently address this issue in such manner as it deems appropriate.” In a interview Wednesday on Capital Tonight, Schneiderman said he also encourages a potential special legislative session before year's end to consider justice system reforms.

Should the governor grant Schneiderman with the new power he is seeking, it would apply only to future incidents. He would not be able to investigate Eric Garner’s death nor the grand jury’s subsequent non-indictment of Officer Daniel Pantaleo, which precipitated the request in the first place.

Cuomo’s office has said it is reviewing Schneiderman’s proposal.