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Buffalo Law Journal Interviews Barry Covert on Failure to Indict Two Police Officers in Deaths

Buffalo Law Journal editor and reporter Michael Petro talked to nationally recognized Buffalo criminal defense attorney Barry Covert about the recent grand jury decisions in Ferguson, Missouri, and Staten Island that cleared two police officers in the deaths of unarmed suspects Michael Brown and Eric Garner. The decisions, which led to outrage and protests across the country, raise questions about the justice system, excessive force used by police, and race relations.

While prosecutors typically present their case and ask the grand jury for an indictment, Mr. Covert told the Law Journal that, in his opinion, this was not done effectively in either of these situations.

Failure of the prosecution

Mr. Covert cited what appear to be improperly built cases by the prosecution. "In both of these cases,” he said, “the prosecution has stated that they did not walk in with an organized case. They basically walked in and said, 'Here's all of the evidence—knock yourself out.' "

Because of that, Mr. Covert said that “the grand juries were given the message that these cases were treated differently than others. In 99 percent of cases, the process is meant for a prosecutor to work jointly with law enforcement to prosecute a civilian, but it complicates matters when the prosecution has to look at law enforcement as the target for indictment.”

"The message is sent that we don't really want this indictment," he said. "When you put that together with this being a white police officer and a black victim in both cases, you have a process here that is inherently conflicted both legally on a technical level and on a public perception level. You have a very tainted and slanted process."

Independent outsider needed

“In cases where law enforcement is the target of an indictment,” he added, “a process should be in place that allows for an independent prosecutor to present that case. I would submit that you're actually doing the prosecutor a favor by taking them off the case and letting that person step back while someone independent goes in there."

“Not getting indictments in these cases was a failure of the prosecution,” Mr. Covert said, “especially downstate. Was it reckless for the officer to use an illegal chokehold, thereby resulting in a death, because he did not perceive the consequences? It's impossible to understand how the jury could not have found that it was negligent."

Mr. Covert represents clients in the areas of New York State and federal criminal trials and appeals; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense.

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