The stipulations of a settlement released Monday now give New York Attorney General Eric Schneiderman the rights to investigate the death of Edson Thevenin, while the lawsuit against Rensselaer County District Attorney Joel Abelove is withdrawn.
"The lawsuit that I'm dealing with addresses the question of who had the power to do this?" said John Bailey, the attorney representing Abelove.
He says his client believed he had the right to prosecute the case and he even thought representatives from the attorney general's office agreed, "because their representatives who arrived at the scene of the underlying tragedy indicated quite clearly and it was their impression that the decedent, the gentleman who died, was in the process of using deadly force against Sergeant [Randy] French," said Bailey.
But the attorney general says that his office was never sure if Thevenin could be considered armed and dangerous, and that's why he says Abelove had no right to present this case to a grand jury. Under the governor's executive order signed a year ago, the AG can take over jurisdiction in police shooting cases if there's a question of whether or not the victim was armed and dangerous.
Thevenin was shot and killed by Sgt. French after police say Thevenin pinned French between a car during a traffic stop on April 17. A grand jury cleared the sergeant of wrongdoing.
"The district attorney had a very clear communication that the attorney general was not interested in this case," said Bailey.
But according to Schneiderman, it wasn't clear, and after Monday's court ruling, he has full authority to investigate -- and could reconvene a grand jury.
A spokesman from his office, Eric Soufer, said, "This agreement does not exonerate DA Abelove for any potential claims of misconduct."
But Bailey says the attorney general won't find any misconduct, and it's possible this was all a miscommunication.
"And for whatever reason, maybe the communication got misgarbled up the chain, so to speak. I think that's possible," he said.
Since TWC News first learned of the lawsuit, Abelove has continually declined to comment. On Tuesday, the sealed grand jury documents will be turned over to the attorney general; however, he will still need to go through a legal process to unseal them.