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State's own expert told grand jury police didn't kill Prude

Prosecutors overseeing a grand jury investigation into the death of Daniel Prude last year in Rochester, New York, undercut the case for criminal charges with testimony from a medical expert who said three police officers who held Prude to the ground

Prosecutors overseeing a grand jury investigation into the death of Daniel Prude last year in Rochester, New York, undercut the case for criminal charges with testimony from a medical expert who said three police officers who held Prude to the ground until he stopped breathing didn’t do anything wrong.

Dr. Gary Vilke told the grand jury that Prude, a 41-year-old Black man, died of a heart attack caused by the medical phenomenon known as excited delirium. He said the officers' actions, which included placing a mesh hood over Prude's head, had no impact on his breathing, according to transcripts made public Friday.

A medical examiner ruled Prude’s death a homicide due to asphyxiation from a physical restraint, with use of the drug PCP as a factor.

Vilke, a University of California, San Diego professor who routinely testifies on behalf of police, said restraining Prude during the encounter in the early hours of March 23, 2020 may have been best for his safety given his condition.

Asked by a grand juror if anything could have been done better, Vilke responded: “I wouldn’t do anything differently.”

The grand jury ultimately rejected criminally negligent homicide charges against the three officers by a 15-5 vote, the transcripts show.

Prosecutors from the state attorney general’s office sought no other charges. They told grand jurors that they could choose not to indict if they believed the use of force was justified. Five jurors indicated they would have voted to indict at least one of the officers.

The grand jury’s decision not to indict was announced at the time it was made in February, but the transcripts of nine days of testimony from witnesses — including Prude’s brother, police officers and experts — offer a rare window into a process normally kept under wraps.

Prude family lawyer Elliot Shields said he believed prosecutors had undermined their own case by calling Vilke, whom he likened to a defence witness.

“It’s obvious that they didn’t even try,” Shields told The Associated Press.

“They hired him so that he would come in and they could have cover and say, ‘Well, we tried.’ Well no you didn’t,” Shields said. “You tried to make sure these officers got off scot-free.”

New York Attorney General Letitia James had said, in announcing the grand jury’s decision, that the state had put on the best case it could.

Her office defended its use of Vilke as an expert Friday, saying it promised an independent investigation without a predetermined outcome.

The release of grand jury materials comes at a sensitive time for the issue of race in policing. Testimony is ending in the trial of former Minneapolis officer Derek Chauvin in the killing of George Floyd. And on Thursday, body camera video was released that showed a Chicago police officer fatally shoot 13-year-old Adam Toledo last month after he appeared to drop a handgun and begin raising his hands.

Prude encountered police hours after he was released from a hospital following a mental health arrest. He ran naked from his brother’s home and was seen bashing store windows. Prude’s brother, Joe, testified that he warned an officer responding to his home, “Don't kill my brother.”

Prude’s death went largely unnoticed until September, when his family released body camera video of the encounter obtained through a public records request. Emails later made public by the city showed police commanders urged city officials to hold off on releasing the footage.

The video showed Prude handcuffed and naked with a spit hood over his head as one officer pushed his face against the ground and another officer pressed a knee to his back. The officers held Prude down for about two minutes until he stopped breathing. He was taken off life support a week later.

Vilke told the grand jury that drug use and mental illness contribute to excited delirium, which can make people vulnerable to cardiac arrest. There is no universally accepted definition of excited delirium and researchers have said it’s not well understood.

Vilke said he didn't think the spit hood was a factor or that the officers obstructed Prude's breathing.

“So, all those things allow me to be able to be comfortable saying my opinion is that none of the officers, their impact, individually or collectively, would have caused or contributed to that cardiac arrest," Vilke said. "And, to go even one step further, if he had been allowed to get up and run around ... that would actually be more detrimental than being held down.”

Shields, the lawyer for the Prude family, called Vilke’s assertion that restraining Prude was safer “outrageous.”

An officer testified that police used the hood because Prude was spitting and they were wary of being sickened in the early days of the pandemic.

“I don’t know if you guys remember exactly about the coronavirus, how we felt, but it was almost hysteria in the country," the unidentified officer said

The state also offered the grand jury testimony from Geoffrey Alpert, a criminology professor at the University of South Carolina who previously worked as a federal monitor for the police department in New Orleans.

Alpert also testified that spit hoods don't restrict breathing. He said it was reasonable for officers to pin Prude to the ground, calling it a generally safe method of restraint.

But he said officers probably held Prude on his stomach for an unreasonable amount of time, though he added he was not a medical doctor and couldn’t say if that contributed to his death.

The footage of Prude's arrest and restraint sparked nightly protests in Rochester, a rust-belt city on the shore of Lake Ontario which was roiled recently by body camera footage of white officers using pepper spray on a 9-year-old Black girl.

James, whose office investigates police shootings, secured a judge’s permission to make the usually secret grand jury material public, citing a desire for transparency in Prude's case. The transcripts were released with the names of witnesses blacked out.

Seven officers, including the three involved in Prude’s restraint, remain suspended pending the outcome of an internal investigation.

Matthew Rich, a lawyer for four officers who responded but weren’t involved in Prude’s restraint, questioned the closed-door process that paved the way for the transcripts being released. Despite that, he wrote in a letter to the judge last month that he and his clients “have nothing to hide.”

One Prude grand juror praised the prosecution team's “amazing work.”

“If it wasn’t for everything that you presented to us, I don’t think anybody would have come up with a decision. You worked very hard and I’m sure nobody took it lightly," the juror said. "It was a very serious case. It’s horrible what happened to him.”


Associated Press reporters Larry Neumeister, Thalia Beaty, Jennifer Peltz, Jim Mustian and David B. Caruso in New York; Carolyn Thompson in Buffalo and Michael Hill in Albany contributed to this report.


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Michael R. Sisak, The Associated Press