Albany

A state investigation into Rensselaer County District Attorney Joel E. Abelove's handling of a 2016 fatal police shooting is examining whether he committed official misconduct or obstruction when he rushed the case before a grand jury less than a week after the incident, according to people briefed on the investigation.

Legal observers said the unprecedented probe by Attorney General Eric Schneiderman's office took a significant step last month when Abelove's mobile phone was seized by investigators who confronted him with a search warrant as he arrived at his office on the morning of March 16. Court security cameras captured the tense moments when Abelove carefully read the warrant while surrounded by state law enforcement officials who eventually took the phone from his hand.

"A search warrant on a cellphone, that's a pretty big deal. The investigation has really gotten to a whole new stage here," said Bennett Gershman, a Pace University law professor and former prosecutor. "They have to have probable cause at least to believe that a crime was committed."

That crime, Gershman said, could hinge on Abelove's decision to put the case into a grand jury after the attorney general's office sent him a letter saying they were examining the case under the authority of a governor's executive order. Abelove has publicly criticized Gov. Andrew Cuomo's 2015 executive order giving Schneiderman the authority to intervene in cases in which unarmed civilians are killed by police.

Abelove's attorney, John W. Bailey, has asked a judge to review the search warrant application, which is not publicly filed, to determine whether the attorney general's investigation — led by two former Troy police officers — is biased or there were valid reasons to seize the phone of a district attorney. Bailey has also questioned why state Supreme Court Justice Richard McNally, a former Rensselaer County district attorney who defeated Abelove in Abelove's first run for the office, signed the warrant and did not recuse himself.

Days after the investigators seized Abelove's county-issued phone, Supreme Court Justice Thomas A. Breslin, the region's administrative judge, signed an order transferring the case from McNally to Columbia County Judge Jonathan D. Nichols. Nichols has declined to release copies of written arguments filed by Bailey and the attorney general's office on the legality of the search warrant.

Abelove has filed a request with the attorney general's office securing his right to testify before a grand jury if the investigation of his handling of the case reaches that point. He also has defended his decision to quickly put the shooting case before a grand jury that cleared Troy police Sgt. Randall French in the April 2016 killing of Edson Thevenin, 37, as he fled a DWI arrest. Troy police officials said the shooting was justified because French's legs were pinned against his cruiser by Thevenin's vehicle after a brief pursuit.

A toxicology report showed Thevenin was intoxicated, according to sources close to the investigation.

Two civilian witnesses told police they did not believe French was in imminent danger when he opened fire at close range. The witnesses, Keith Millington of Cohoes and Phillip E. Gross III of Troy, were interviewed by Troy police and the attorney general's investigators. Still, Abelove did not subpoena them to testify before the grand jury. French was not required to sign an immunity waiver before he testified, so he could not have been charged no matter what the panel decided.

A person close to the case said Abelove made arrangements with Gross' attorney for his client to appear before the grand jury. When Gross failed to show up, Abelove did not issue a subpoena compelling his testimony. Lee Kindlon, an attorney for Millington, said his client was never asked to testify. In an interview with the attorney general's office last year, Millington said he saw Thevenin's car roll forward into French's legs after the officer opened fire, according to another person briefed on that interview.

Gershman, who was a prosecutor with the Manhattan district attorney's office and has authored books on prosecutorial and judicial ethics, said Abelove's decision to not subpoena the civilian witnesses is likely a focus of the attorney general's investigation.

"This is serious, substantial, exculpatory evidence as to whether or not there was a (justifiable) homicide here, Gershman said. "This is the kind of evidence that must be presented to a grand jury to make an impartial determination. You can't hide this evidence; this is critical evidence."

The case has also touched off an internal debate in the District Attorneys Association for the State of New York, which last month voted against supporting Abelove in a petition he filed in state Supreme Court challenging the constitutionality of Cuomo's July 2015 executive order. The petition seeks a court order precluding Schneiderman's office from investigating his handling of the Thevenin shooting.

"The New York state governor does not have the authority to disqualify a district attorney on the basis of a perceived conflict of interest," the petition states.

Many district attorneys have criticized Cuomo's order because it supersedes their authority in cases involving fatal encounters between police and unarmed civilians. One of the issues behind the order is whether local district attorneys would handle deadly police cases with impartiality given their close ties to those law enforcement agencies. The district attorneys have privately debated whether the Thevenin shooting is the right case to mount a formal challenge of the order.

On March 7, Abelove wrote an email to his fellow district attorneys pleading for their support.

"Clearly, what started as an investigation into the underlying facts of the shooting incident, has evolved into an investigation into how my office handled the investigation, including the grand jury presentation," Abelove wrote. "These orders from the governor – especially that which targets me personally – cannot go unanswered."

But unraveling a governor's executive order, including one he signed in February giving Schneiderman explicit authority to investigate Abelove's role in the shooting case, may be difficult.

"Executive orders from the governor are presumptively constitutional and enforceable; it's not often that they are set aside on constitutional grounds," said Jay C. Carlisle II, a Pace University law professor who has testified in state and federal courts as an expert witness on New York law. "If I were a betting man, I would bet on the governor and the attorney general prevailing."

Cuomo signed the order after a series of high-profile deadly encounters between police and unarmed civilians in New York and across the nation. The order gave Schneiderman authority to conduct independent investigations when, "in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his death."

The petition filed by Abelove asserts the order is unconstitutional and the underlying reasoning was not enough to justify the extraordinary authority that Cuomo gave Schneiderman.

In February, Cuomo signed a separate order that gave the attorney general specific authority to probe Abelove and to pursue charges against any person for unlawful acts "in any way connected with the incident and its subsequent investigation, including its grand jury presentation."

The fatal incident began with a traffic stop. Abelove has said Thevenin ran away from French moments earlier as he was being given a field sobriety test. The officer pepper-sprayed him and ran after him.

"Sgt. French attempted to pull Thevenin's keys from his ignition and was dragged a short distance along the side of Thevenin's car," the petition states.

Abelove said two police cruisers chased Thevenin and boxed in his vehicle on Hoosick Street near the Collar City Bridge. Police officials said French's legs were allegedly pinned between his cruiser and Thevenin's car, and the officer fired eight shots at Thevenin, Abelove said. Police said they considered Thevenin armed because he was using his vehicle as a weapon.

blyons@timesunion.com • 518-454-5547 • @brendan_lyonstu