Schenectady County’s District Attorney has been appointed as a special prosecutor after the Rensselaer County DA recused himself from an investigation into a police-involved shooting.
On August 15th, 22-year-old Dahmeek McDonald was shot during an encounter with Troy police.
No evidence has been presented that McDonald was armed during the encounter. Wanted for absconding from parole, McDonald was struck twice, in the head and shoulder, after Troy police officer Jarrod Iler discharged his weapon.
The Troy police department initially announced it would investigate the shooting incident internally and would cooperate with the Rensselaer County District Attorney’s office.
McDonald’s attorney, Mark Mishler, then wrote to District Attorney Joel Abelove asking him to recuse himself from the investigation.
Abelove resisted. But a week later, he announced that would recuse himself after all, saying he “determined that a conflict of interest exists which necessitates my recusal from this investigation.”
Troy Police Captain Daniel DeWolf told WAMC at that time that the investigation would continue and that Abelove’s recusal would have “no impact.”
This week, Schenectady County District Attorney Robert Carney was appointed to take over the investigation as a special prosecutor.
Reached by WAMC News, Carney would not comment on the case Thursday.
Mishler, McDonald’s attorney, would not comment on Carney’s involvement, but told WAMC on September 1st that there was one office he would like to lead the case.
“Our position is that the only office that really can be counted on at this point to do a thorough and fair investigation of what we believe to have been a completely unjustified use of deadly force by a police officer would be the New York Attorney General’s office,” said Mishler at the time.
Under an executive order by Governor Andrew Cuomo, the state Attorney General’s office has the authority to investigate only fatal police encounters.
Attorney General Eric Schneiderman recently announced he was convening a grand jury in his investigation of a fatal encounter involving Troy police in 2016. In that case, resisting the executive order, Rensselaer County DA Abelove convened a grand jury that cleared the officer before Schneiderman could get involved.
Professor Mary Lynch, Kate Stoneman Chair in Law and Democracy and Director of the Center for Excellence in Law Teaching at Albany Law School, says district attorneys in New York can use their own judgement to remove themselves from an investigation.
“I certainly teach my students that I think prosecutors should take the position that if there is something that would undermine the confidence of the community in a verdict, undermine the confidence of the community in the independence of a prosecutor, that is a good reason to request a special district attorney or a special prosecutor.”
For example, she says, district attorneys may recuse themselves if they have represented an individual during a previous legal career, or if an individual being investigated is a family member or close associate.
Lynch adds that requesting a special prosecutor should not necessarily reflect poorly on a DA.
“In fact it could be that a district attorney is doing what we ask district attorneys to do, which is put the interest of the communities first.”
A request for comment submitted to Abelove’s office Thursday was not returned.
In another story surrounding Abelove, a New York State Supreme Court Justice recently issued a decision saying the DA did not provide sufficient evidence to support the indictment of Cresencio Salazar, a man who, along with three others, had faced multiple murder charges in connection with the deaths of two men in October 2016.