Rensselaer County District Attorney Joel Abelove, who is accused of two misdemeanors and one felony related to his handling of a fatal police shooting case, has moved to dismiss the indictment against him, arguing that “the evidence before the grand jury” did not support the charges, according to court filings this month.
Abelove’s omnibus motion partly relies on a report on the shooting released earlier this year by state Attorney General Eric Schneiderman, whose office brought the unprecedented case against the district attorney. The AG’s report, which includes a vendor-prepared forensic analysis, found that prosecutors “cannot disprove” that Troy police officer Randall French’s fatal shooting of Edson Thevenin—who fled a DUI stop and crashed his car into a concrete barrier near the Collar City Bridge, where the killing occurred—was justified.
The forensic analysis couldn’t rule out the chance that “Thevenin’s car was moving forward…when Sgt. French fired the initial shots,” which meant the officer might have had a self-defense justification, the AG’s report says.
“These reports create uncertainty as to whether the evidence presented to the grand jury formed a sufficient basis for the crimes charged in the indictment,” one of Abelove’s defense attorneys, William Dreyer, says in the motion, which also seeks disclosure of grand jury instructions and minutes.
The trial of Abelove, who has pleaded not guilty, is scheduled for late June. Dreyer and a spokesperson for Abelove’s office both declined to comment on the motion.
The defense’s motion “lacks legal merit and includes significant inaccuracies,” said Schneiderman’s press secretary, Amy Spitalnick, though she did not immediately identify the purported inaccuracies. “We look forward to responding in our reply motion.”
AG ‘reached the same unremarkable conclusion’ as Thevenin grand jury
The indictment says Abelove “withheld material evidence” from the grand jury and “knowingly failed to submit a waiver of immunity” from French “as a condition of his testifying.” This alleged official misconduct undermined French’s prosecution, Schneiderman has said.
But the AG’s own report “reached the same unremarkable conclusion” as the Thevenin grand jury, Dreyer says in a memo supporting his client’s latest motion, a parity that proves “this prosecution is about nothing more than the Attorney General’s dislike and disagreement with” Abelove’s “prosecutorial prerogatives.”
“Importantly,” the defense says, both official misconduct charges against Abelove are brought pursuant to a part of the law dealing “with conduct of omission.” Under this subsection, a public official is guilty when, in seeking to obtain a benefit, he “knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”
In a Feb. 27 letter included with Abelove’s omnibus motion, the AG told the defense that the district attorney had knowingly refrained from performing inherent, rather than legal, duties—including “duties of candor and of impartial judgment and discretion.” It cited county law outlining district attorneys’ powers and duties, state law governing grand jury proceedings, and “numerous decisions” in state court as some of the sources of these inherent duties.
This represents an attempt by the AG to criminalize “amorphous ethical standards,” which could have far-reaching implications, Dreyer says. “If the OAG’s prosecution is to be permitted, then every appeal and motion brought by a criminal defendant who claims that a district attorney exhibited a lack of candor or impartiality during grand jury proceedings, if sustained, could form the basis for criminal liability against that district attorney.”
Then there’s the question of benefit. The AG alleges Abelove took these non-actions to benefit French, effectively shielding him from prosecution, Dreyer says, but “a shield from prosecution is only a benefit to someone who has actual exposure to such prosecution.” Citing the AG’s report on the death of Edson Thevenin, which “concedes that there is no legal basis to charge Sgt. French,” Abelove’s attorney says the AG “cannot prove any benefit” to the officer, so the two charges must be dismissed.
The single felony count—the third and final charge against Abelove—stems from his statement before the AG’s grand jury that a different police officer in another, earlier case handled by his office did not sign an immunity waiver as a condition of testifying before that grand jury (when, in fact, he did).
Addressing this charge, Dreyer criticizes the prosecutor from Schneiderman’s office, Jennifer Sommers, who questioned Abelove. Sommers “attempted to box Mr. Abelove into sworn testimony about a very specific fact concerning a grand jury that another attorney presented two years prior,” he says. It’s a case of “faulty memory” rather than “deliberate falsification,” according to the defense.
“Sommers did not confront Mr. Abelove with contrary evidence, nor did she do any limited probe of his memory,” despite her evident familiarity with the previous proceeding, Dreyer says. Instead, “she set out to confirm the same answer (which she knew to be inaccurate) while providing a not-so-subtle signal to the grand jury through her incredulous rhetorical follow-up questions.”
This, in the defense’s view, “constituted a perjury trap.”
The defense also questions the constitutionality of the two executive orders underpinning the AG’s authority in the case. Last year, a state Supreme Court judge dismissed a lawsuit from Abelove that made a similar argument.