AROUND THE ISLAND CRIME & COURTS
When Call Goes Out For Special Prosecutor
By Olivia Winslow
STAFF WRITER


A FATAL SHOOTING of a suspect by a Nassau police officer has raised complaints that the Nassau district attorney's investigation of police conduct in the case favors police over the victim.

As a result, a critic says, a special prosecutor is needed to ensure an unbiased look into events.

The district attorney's office counters, however, that no inherent conflict of interest exists when prosecutors investigate police, despite the working relationship the office has with law enforcement.

A spokesman for the state Criminal Justice Services division concurred. The spokesman, Richard Ross, said: "Generally, as a rule, a DA's relationship with police is not problematic . . . that does not mean the system is perfect." He added that when there is a conflict, a local State Supreme Court justice, or, in "extreme circumstances," the governor, can be petitioned to appoint a special prosecutor.

Indeed, requests for special prosecutors can be made for all kinds of cases  -   for instance, when the district attorney perceives a conflict of interest within his office. In another example, four years ago, a special prosecutor was appointed by then-Gov. Mario Cuomo after a state commission determined that a grand jury investigation of a fatal shooting by a police officer was skewed.

The latest attorney to raise the issue is the lawyer for the family of Joseph Ricketts, 26, who was killed by a Nassau police officer during a raid March 30 on his Massapequa home. Police have alleged that Ricketts was involved with illegal drug and weapons sales. Officer Thomas Mazeika shot Ricketts once in the head after he failed to obey a command to be still and appeared to be reaching for what the officer thought was a gun, police said. At the time, police said they found a weapon wedged between Ricketts' bed and the wall. The family disputes the police account of the location of the weapon.

The lawyer for the family, John Gianfortune of Garden City, who has announced the family's plan to sue the county and police, charges that the circumstances under which police shot Ricketts were suspicious. He also alleges that prosecutors have "dragged their feet" on bringing the case before a grand jury  -  which began hearing testimony just last week  -  and, until recently, failed to comply with a court order mandating that they turn over Ricketts' medical and autospy records to the family.

"It gives the appearance of impropriety when the DA's office works closely with police who are now potential targets of the grand jury," Gianfortune said.

In a statement to the news media last month, Gianfortune put it more bluntly: "There is an inherent conflict between the assistant DA presenting the matter to the grand jury and his duty to the victim's family. The assistant DA is from the Major Offense Bureau, a bureau that works hand in hand with the police department on a daily basis, an officer of which is the defendant in this proceeding." Gianfortune added that Nassau has "developed a striking pattern of not producing indictments against police officers involved in shootings. There is a fear the officer responsible for Joseph Ricketts' killing will merely be walked through the grand jury process to emerge unscathed."

But Grilli argued that prosecutors' investigation into the Ricketts' case has been thorough  -  hence the length of time it has taken to bring the case to the grand jury. He also rejected claims that prosecutors shirk their duty to investigate potentially criminal actions by police.    "Are they assuming every police shooting should be criminally prosecuted when there's no evidence" of wrongdoing? Grilli said, scoffing at such a suggestion.    "You can't just talk about brutality" cases, when discussing prosecutions of police officers, Grilli insisted. He said that in reviewing the records since 1975, when Dillon became prosecutor, Grilli said the office has conducted "over two dozen prosecutions of police officers for criminal conduct," which he said showed "no reluctance" to investigate police when necessary.

But some in legal circles said there are perceptions to be dealt with, whether or not they are valid.

"In situations where the appearance of impropriety exists, it is my professional opinion that all parties are best served by the appointment of a special prosecutor, which ensures the integrity of the investigation, not only to the parties involved, but the public as a whole," said Anthony Grandinette, a former prosecutor in Nassau who is now a criminal defense attorney. Grandinette chairs the Nassau Bar Association's criminal law and procedure committee.

Herman Tarnow, chairman of the state Bar Association's special prosecutor committee, said having a statewide special prosecutor who could conduct investigations as a matter of routine, something the bar association has advocated unsuccessfully for years, could alleviate concerns about bias of local prosecutors. Under such a system, Tarnow maintained, the public doesn't "have to be concerned by political ramifications," and has  "a place to turn for an appropriate and thorough inquiry."    These issues were in evidence after Ricky McCargo was fatally shot by a Nassau police officer in 1984. After several years of controversy, Cuomo appointed a special prosecutor to reopen the case four years ago.

McCargo, an aspiring fashion designer, was killed in 1984 during an argument in a Hempstead parking lot that ensued after he asked now-retired police Det. Joseph Sampson and his partner to move their car, which blocked his. Police said Sampson fired in self-defense when McCargo lunged at him with a knife. But numerous civilian witnesses, according to subsequent government reports, said that the detectives punched, shoved and threatened McCargo in the moments before he was shot. While a knife was found near his body, McCargo died clutching a hat in the hand police said he used to wield the weapon.

The first grand jury impaneled shortly after the incident voted to bring no indictment. The state's Commission of Investigation concluded in 1991 that the first grand jury presentation had been skewed by the district attorney to favor the police version of events, and recommended the appointment of a special prosecutor. Cuomo named one who brought the case before a second grand jury in 1991. Seven months later, the grand jury voted to bring no criminal charges against the officer. In the meantime, however, a civil trial jury in 1989 found Nassau County liable for McCargo's wrongful death and awarded $5 million in damages to the family, which was subsequently settled for $2.5 million to avoid appeals.

Recently, a special prosecutor was appointed by a local Supreme Court justice, at Suffolk County District Attorney James M. Catterson Jr.'s request, to investigate the controversial car-lease deal, which has since been scrapped. Meanwhile, Gov. George Pataki continues to mull over the Suffolk County Legislature's request for another special prosecutor to investigate whether Catterson, whose son helped negotiate the car-lease deal, abused the power of his office.

Copyright 1995, Newsday Inc.
Olivia Winslow, AROUND THE ISLAND CRIME & COURTS When Call Goes Out For Special Prosecutor., 10-03-1995, pp A27.