NEW YORK CITY — Surrounded by the family members of people who have been killed by police, Gov. Andrew Cuomo signed an executive order Wednesday appointing Attorney General Eric Schneiderman as a special prosecutor to examine such cases.
The move comes after Cuomo was unable to get a law passed in the most recent Albany legislative session to appoint a special prosecutor.
While the Democrat Assembly passed a bill, the mostly Republican Senate wanted the special prosecutor to be regional so an upstate issue would be reviewed by a special prosecutor from upstate, Cuomo said.
The governor pledged to sign an executive order appointing a special prosecutor if the Legislature did not act. The executive order lasts as long the governor in power wants it to last, Cuomo said.
Cuomo said the order was necessary because there is a "crisis of confidence in the criminal justice system" following several high profile cases in New York City and across the country where police have killed unarmed men.
"When a community doesn’t have trust for the fairness of the criminal justice system it creates anarchy and we have had a series of incidents in New York that have raised that question repeatedly," Cuomo said.
Present for the signing was Constance Malcolm, the mother of Ramarley Graham, an unarmed teenager who was chased into his home in The Bronx in 2012 and fatally shot in the chest by police officer Richard Haste, who believed the teen had a weapon. No gun was found.
Gwenn Carr, the mother of Eric Garner, the Staten Island man who died when police officer Daniel Pantaleo placed him in a chokehold after approaching him about selling loose cigarettes, was also there.
In both cases, neither officer was ultimately indicted by a grand jury. Haste's first indictment was thrown out on a technicality when the Bronx District Attorney's Office incorrectly instructed the grand jury. A second grand jury declined to indict him.
In the case of Garner, whose confrontation with police was captured on a dramatic video on which Garner can be heard repeatedly saying he can't breathe, former Staten Island District Attorney Daniel Donovan declined to release minutes from the grand jury.
"It is a crisis of trust," Cuomo said.
The executive order enables the attorney general to step in and supercede county district attorneys in cases where police kill an unarmed civilian or in cases where there are questions about whether the civilian who was killed was armed or dangerous.
Cuomo and criminal justice reform advocates said that local district attorneys have a natural conflict of interest when it comes to investigating the police because the two agencies work so closely together to gain convictions.
"I’ve had prosecutors say to me, 'I’ve been a DA for decades...I’ve indicted over 200 police officers. How can you say to me that I have a conflict after such a record?'" Cuomo said.
"Conflict of interest can be real or perceived, but even if there is a perceived conflict of interest, it’s a problem."
Cuomo said the attorney general "does not have that level of relationship with the police department that could pose that conflict."
Schneiderman praised the state's district attorneys as "diligent and hardworking" but said the concept of "equal justice under the law" was at stake.
"If people can't see that the system is fair, the system won't work," said Schneiderman, who requested the appointment as special prosecutor last year.
The city's district attorneys and police unions oppose the move.
Pat Lynch, president of the Patrolmen's Benevolent Association, said a special prosecutor was "unecessary" given the "many levels of oversight that already exist."
"The rules of law apply regardless of who is investigating a case, but our concern is that there will be pressure on a special prosecutor to indict an officer for the sake of public perception and that does not serve the ends of justice," Lynch said.
Bronx District Attorney Robert Johnson questioned whether the Attorney General's office "has the necessary resources" to handle the "intricate investigations" of police killing cases.
"I am sure that their office has nowhere near the experience that my assistants and I have amassed. My office has handled at least nine controversial death cases involving the NYPD and two non-fatal cases," Johnson said.
Cuomo disagreed. The ultimate goal is a law that would make a special prosecutor permanent, he added.
After the deaths of their loved ones, Malcolm said there was no way family members could not work for change.
"We [are] in a boat that nobody wants to be in. I can say right now it's very crowded. We don't need anyone else in this boat," she said.