Trial reflected system’s ‘integrity’
Attorney general remains committed to pursuing misconduct cases
Demonstrators in the street, reporters packed in the Rensselaer County Court House grand ceremonial courtroom and allegations of prosecutorial misconduct gave former District Attorney Joel Abelove’s twoweek September trial a cinematic feel.
Missing from the scene were jurors crowded into the jury box to hear the state Attorney General’s Office case against Abelove unfold, a case in which he was charged with lying to a grand jury about the April 2016 fatal police shooting of unarmed drunken-driving suspect Edson
Thevenin in Troy.
Abelove opted for a bench trial before Columbia County Court Judge Jonathan D. Nichols, which longtime courthouse observers said was the right strategic choice: Nichols had dismissed the case before his decision was overturned unanimously by an appeals court and sent back for trial. They also had speculated that news coverage of Abelove’s prosecution, the Thevenin case and Abelove’s election loss to District Attorney Mary Pat Donnelly would influence would-be jurors.
After deliberating three hours, Nichols acquitted Abelove on a count of first-degree perjury, a felony, and two counts of official misconduct, a misdemeanor.
The attorney general and civil libertarians saw the outcome of Abelove’s trial as a loss but also as a demonstration of the willingness to go to trial to show that future prosecutorial misconduct cases would be pursued around the state.
“For our criminal justice system to work fairly, everyone from the police officer on the beat to the prosecutors who bring cases must be fully committed to justice. While we were certainly disappointed in the outcome of this trial, the fact that we had an opportunity to bring this case against a district attorney and bring these issues to light is absolutely critical to the integrity of our system,” Attorney General Letitia James said.
Abelove’s trial last summer offered the public a rare look into how a prosecutor handled an investigation of a fatal shooting by a police officer and his decision to put the case to the grand jury before the investigation was complete. A chief investigator for the attorney general’s office, Antoine Karam, testified that he had reviewed sealed grand jury records he obtained from Abelove and found no indication that the panel had been provided evidence from any firearms analysis, toxicology or autopsy reports, or a reconstruction of the shooting scene.
Abelove’s legal troubles with the attorney general arose from how he handled his investigation of a fatal drunken driving traffic stop on April 17, 2016, when Troy police Sgt. Randall French fatally shot Thevenin. By the end of the week, Abelove had presented the case to a county grand jury, which cleared French. Abelove was accused of not presenting evidence of where the bullets hit Thevenin’s car and did not obtain a waiver of immunity from French before he testified to the grand jury, guaranteeing he would not be charged.
The attorney general’s office was investigating the shooting under a 2015 executive order by Gov. Andrew M. Cuomo tasking the office with looking into fatal police killings of unarmed civilians. The attorney general’s special investigations and prosecution unit worked with a special county grand jury to investigate Abelove. That grand jury indicted Abelove on Dec. 1, 2017, on the two misdemeanor counts of official misconduct for the 2016 grand jury investigation and for the felony count, for which Abelove was accused of lying to an earlier grand jury about how the 2015 testimony of Troy officer Joshua Comitale was handled in an unrelated fatal shooting case.
“Our role as a special prosecutor was created to address this very problem and to ensure that an independent body is investigating police-involved civilian deaths. This trial showed the powers of the special prosecutor at work and was a clear demonstration of our unwavering commitment to justice,” James said.
Nichols would dismiss the charges in 2018, ruling that the state attorney general’s office exceeded its investigatory authority under state executive law and did not have the statutory jurisdiction to prosecute Abelove for the perjury charge. The Appellate Division restored the charges when the attorney general appealed.
In opening statements, the attorney general’s office called Abelove presentation to the grand jury a “charade” and “quick whitewash” predetermined to clear the sergeant who fired the fatal shots.
Abelove and his attorney, William Dreyer, did not respond to requests for comment about the trial.
When Abelove took the stand, he testified about French, who died in April from COVID -19.
“He was not a target in my mind based upon all the evidence that I had. He was not going to be charged by me,” Abelove testified when Dreyer questioned him. “I wasn’t advocating for Sgt. French’s arrest. I didn’t think there was any reasonable view of the evidence that supported criminal liability on Sgt. French’s part, so he was not going to be prosecuted.”
Abelove’s testimony came after prosecutors gave a rare look into grand jury proceedings. They read the grand jury transcript of Abelove’s testimony about his presentation to the April 2016 grand jury.
While the trial went on inside the courthouse, outside protesters gathered waving such signs as “Prosecute cover-up of murder” and “Edson Thevenin is Troy ’s George Floyd” — a reference to the Black man who died in Minneapolis after a police officer kneeled on his neck for several minutes in May, setting off protests across the nation.
Abelove’s trial gave the community an intense inside look at how criminal law is practiced in a district attorney ’s office, said Melanie Trimble, director of the New York Civil Liberties Union’s Capital Region Chapter.
“Most people don’t understand how criminal law works, and they tend to place their faith in the officials who administer it,” Trimble said. “This trial certainly was a way to explain to the public how the system works.”
Still pending is the federal civil rights lawsuit filed by Thevenin’s family against French and the city of Troy. The city lost a motion for a summary judgment to dismiss the case in September 2019 in U.S. District Court in Albany. The city ’s attorneys have filed an appeal with the Second Circuit, the federal appeals court.