Attorney Asks DA To Recuse Himself From Troy Shooting Investigation

Aug 23, 2017

Recent events have brought new attention to police-involved shootings and how they are investigated in New York’s Capital Region. WAMC’s Southern Adirondack Bureau Chief Lucas Willard reports on the conversation surrounding a recent shooting in Troy.

On August 15th, 22-year-old Dahmeek McDonald was shot by police during a traffic stop in Troy, New York. McDonald, who was wanted for absconding from parole, suffered non-life threatening wounds to his head and shoulder.

One day after the shooting, Troy police chief John Tedesco spoke at a press conference. He said the department was investigating the incident.

“We will be conducting the investigation internally in conjunction with the Rensselaer County District Attorney’s Office,” said Tedesco.

At the time, Tedesco said the New York Attorney General’s office would not be involved in investigation.

“They notified us early on that this does meet the requirements of the executive order so they will not be doing any investigation here,” said Tedesco.

Governor Andrew Cuomo issued an executive order in 2015 giving the Attorney General power to investigate all fatal police-involved shootings where a suspect was unarmed.

Troy police have not commented on whether or not a weapon was found at the scene.

McDonald’s attorney, Mark Mishler, claims his client was unarmed.

Mishler wrote a letter to Rensselaer County District Attorney Joel Abelove asking Abelove to recuse himself from the investigation. In the letter, also forwarded to the offices of Governor Cuomo and Attorney General Eric Schneiderman, Mishler says it is “impossible” for Abelove to conduct an impartial investigation of McDonald’s case. 

Among his reasoning, Mishler cites another Executive Order issued by Governor Cuomo in February 2017 that authorizes the Attorney General’s office to probe an investigation headed by Abelove into a fatal police encounter in April 2016.

In that case, a grand jury cleared a Troy police officer who fired shots during the fatal encounter of wrong doing days after the shooting, before the Attorney General’s office could be involved.

The Times Union reported “Abelove indicated he would not recuse his office from overseeing” McDonald’s case.

In a statement provided to WAMC the District Attorney said he would not comment on the case. But Abelove also cited a previous article published in the Times Union in which District Attorneys Association for the State of New York President and Oneida County District Attorney Scott McNamara stated that DAs can investigate local police-involved shooting cases fairly.

McNamara told WAMC that there is a public perception that District Attorneys cannot prosecute local police fairly.

“The perception of the public is because we work with these police agencies every day, that when the police do something wrong, that we can’t be fair. That we can’t look at what they did wrong and can’t make a decision that would be adverse to the police,” said McNamara.

What makes it more complicated, according to McNamara, is that what is presented before a grand jury in New York is kept secret according to state law, unlike a public trial.

“That puts us at a real disadvantage from an elected official position of being transparent. And we all want to be transparent. We would all like to explain to the public and to the people that elect us in each of our 62 to counties what we did and why we did it,” said McNamara.

McNamara also acknowledged the Governor’s ability to call investigations into fatal police-involved shootings.

“You know, obviously, he’s authorized to issue such an order. I think the order was appropriate. And I think if I was in the governor’s shoes I would have done the same thing,” said McNamara.

A spokesman for Governor Cuomo, Rich Azzopardi, said the office was monitoring the case involving Dahmeek McDonald closely.

“And we will take action as appropriate,” said Azzopardi.

Also, on Friday, August 18th, a judge dismissed a legal challenge by Abelove over the executive order giving the AG jurisdiction to investigate fatal police encounters.

Amy Spitalnick, Press Secretary for the Office of the New York Attorney General, said in a statement that “the families and communities of all those involved in these cases, deserve answers -- and our office is committed to pursuing those answers, without fear or favor."