Daniel Prude, George Floyd cases raise questions on reforming NY criminal justice system

Mar 3, 2021

After it was announced by New York Attorney General Letitia James that the grand jury would not prosecute the officers involved in Daniel Prude's death, Duwaine Bascoe spent the next day processing what happened. 

“The more you know, the angrier you become because you see the pattern over and over again,” said Bascoe.

Bascoe, an attorney and member of Rochester Black Bar Association, said he had mixed feelings after hearing the decision.

“As a black man, I expected this outcome,” said Bascoe. "As an attorney, I guess I was optimistic.” 

Right after the announcement, James called for reform in the criminal justice system, saying “the current laws on deadly force have created a system that failed Prude.”

According to her report, James called on emergency room doctor Dr. Gary Vilke to provide evidence of Prude's possible excited delirium state to the grand jury. Vilke has made a career as a go-to excited delirium expert in court proceedings involving police officers.

Bascoe said he can’t speak to why James would call Vilke as a witness, but prosecutors typically have control over grand jury proceedings.

Bascoe said excited delirium is a controversial term that has no foundation and is frequently used in criminal cases where people die at the hands of police.

“It’s kind of a Catch-22,” said Bascoe. “They teach the only way to subdue (a person) under excited delirium is choke holds -- knees to the neck, hog ties -- things of that nature which brings on death.”

He adds that police officers are protected under qualified immunity which means they are not subject to personal liability for performing their duties that are considered reasonable. He said there is legislation currently being reviewed by Congress that would change that.

A mural in Los Angeles depicts the death of George Floyd.
Credit Ringo H.W. Chiu / AP

If passed, The George Floyd Justice and Policy Act would, among other things, lower the criminal intent standard and limit a police officer's ability to use qualified immunity as a defense in court.

Grand jury proceedings are typically held in secret to protect witnesses and the integrity of an investigation. Shortly after the decision was announced last week,a judge approved the release of the grand jury minutes in the Daniel Prude case.

Bascoe believes that secrecy is necessary for proceedings, but also believes that public access to transcripts once an investigation is over would benefit the community.

Attorney Mark Foti says there are some drawbacks in secrecy, because in some cases transparency provides oversight and holds prosecutors accountable.

“Absent that oversight, there is discretion over pretty much every aspect of the presentation,” said Foti. “Both in terms of the evidence and the legal instructions they are giving to grand jurors.”

Foti said grand jury cases involving police are handled differently than those involving civilians because there are often special protections and different instructions given to the jury.

He adds that some progress with transparency has been made through New York’s discovery reform, which now requires prosecutors to turn over grand jury minutes to the defense. Previously that information was not available to the other party until the day before trial. 

Bascoe said the Monroe County Bar Association’s commission for criminal justice reform is discussing reform on a policy level, but his concern is that there is not enough being done to eliminate the long standing biases. He adds that reforming juries will have to start there.

“You’re not going to get an equal application of the law until there is a fundamental reeducation of Americans,”said Bascoe. “And we can do away with the biases that exist and have existed since inception.”