Doctor told grand jury that police restraint was 'protective' of Daniel Prude, who later died

If anything, New York Attorney General Letitia James' medical expert told the grand jury, Rochester police did Daniel Prude a favor.

The way the three officers pinned him to the ground — one holding Prude's legs, another on his torso, a third applying body weight on Prude's head and his fingers seeking a pressure point under his jaw — was, "in some ways, in my mind, protective of him from himself," the expert, Gary Vilke, said.

He told the jurors that the restraint was "textbook in my mind." It prevented the handcuffed Prude from running around, he said, and exacerbating the effects of excited delirium by stressing his heart even further.

The purported protective measures did not work. Prude, 41, died a week after his encounter with police, triggering James' investigation and ultimately a decision by the grand jury not to indict the officers at the scene.

James' office on Friday released the grand jury minutes, an unprecedented step in New York that offers unique insight into the case she presented.

"The public deserves to know what happened in these proceedings," James said in a statement. "As I have throughout my career, I will continue to use every tool at my disposal to shine a light in the corners of our system that have been hidden for too long."

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Conflicting witnesses

The minutes raise further questions about James' use of Vilke, a nationally renowned defense expert with an uninterrupted record of siding with law enforcement, in her investigation of the officers' actions.

Vilke said Prude died solely of cardiac arrest, a result of the drugs he had taken several hours earlier and his subsequent experience of excited delirium.

His position on police culpability was clear: "My opinion is that none of the officers, their impact, individually or collectively, would have caused or contributed to (Prude's death)." 

That was disputed by two other expert witnesses, Monroe County Medical Examiner Nadia Granger and police use-of-force expert Geoffrey Alpert, both of whom maintained the restraint was a contributing factor.

"There was no reason to keep him on his stomach," Alpert said. "(Rolling him over) protects the subject at this point from ... asphyxia, and it just keeps getting worse in this case."

The grand jury minutes are redacted, but introductions make clear the identity of most witnesses.

Alpert told jurors that everything else the police did was reasonable. Granger agreed with Vilke about the effect of excited delirium — a disputed concept — but said the restraint, too, was a contributing factor to Prude's death. This back and forth between Attorney Smith and Dr. Granger on Dec. 9 is indicative of the county medical examiner's responses, and where her opinion diverges from Vilke.

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Smith: Did Mr. Prude die in this case, solely as a result of asphyxia?

Granger: Mr. Prude died from a complication of the asphyxial event.

Smith: And, those complications are from the excited delirium and the PCP?

Granger: Correct. And, again, and the restraint. So, it's everything together as I mentioned. All of the factors are contributing to the death.

Smith: Focusing on the restraint and the asphyxia, specifically, Dr. were you able to say whether or not Mr. Prude was asphyxiated specifically by the actions of the officers at a head — the officer at the head?

Granger: I could not tell.

At least one juror apparently struggled with the conflicting testimony regarding the effect of the prone restraint officers used on Prude.

"It seemed like one expert had an opinion that there was no improper anything done," the juror said. "And then, another expert had an opinion that ... something was not quite properly done. Am I correct?"

Co-prosecutor Michael Smith declined to weigh in: "We'll give you the legal instructions, some guidance. But you are the fact finders in this case."

Prosecutors or 'legal advisors'?

The special grand jury process was technically an investigation, not a standard prosecution. The prosecuting attorneys guided the grand jury through nine days of witness testimony without attempting to convince them to indict.

"Please don't speculate as to how we feel about facts," co-prosecutor Jennifer Sommers said at the outset. "That your exclusive role, not ours."

"The purpose of impaneling this grand jury was to investigate the death of Daniel Prude, and we did everything in our power to conduct a fair and thorough investigation and to present all of the evidence and facts in this case," a spokeswoman for James said in a statement Friday.

At the same time, the attorney general is termed a "special prosecutor" in police death cases under state law, and is responsible for seeking grand jury indictments. When the grand jury declined to indict, James made no secret of her disappointment. 

Once the investigatory portion was complete, the prosecuting attorneys did ask the jurors to decide whether to indict the Rochester police officers. They declined by a vote of 15 to 5.

Attorneys respond

Don Thompson, one of the plaintiff attorneys in a civil class action lawsuit against the Rochester Police Department, said he found it "remarkable" that Vilke was chosen as an expert, given Vilke's track record.

"It's completely the prosecutor's show at the grand jury," Thompson said. "The structuring of the experts by the prosecution was, I thought, pretty obviously inclined toward explaining in a non-criminal fashion the actions of the officers."

Thompson noted how the prosecutors, when questioning Granger, seemed to emphasize the "co-equal factors" of Prude's drug use, excited delirium and physical restraint as causes of death, rather than focusing more specifically on the restraint — the only one of the three factors that might lead to indictment of officers, and an area where both she and Alpert disagreed with Vilke.

Smith: So, with that in mind, focusing on the back and torso, Doctor, are you able to say Mr. Prude was specifically asphyxiated by those actions alone?

Granger: I could not.

Smith: Again, a combination of all three things?

Granger: That is correct.

"What’s obvious to me was the question that the prosecutor didn’t ask: 'Without the chest compression that resulted in the asphyxiation, would this man have died?'" Thompson said. "But he didn’t ask that question. That kind of reveals a bias to me."

Matt Rich, one of the officers' attorneys, called the grand jury process one of the most comprehensive he's ever seen.

"I don’t see where (co-counsel) Sommers left any stone unturned," Rich said. "This wasn’t some situation where the outcome was predetermined. She put all the information in front of them and tried to find the best experts she could to fill in the gaps."

Rich called the entire Prude case a "Rorschach test" for the community.

"If you think there’s inherent racial animus with the police – yeah, you’ll look at this and say, 'They choked this guy out and killed him,'" he said. "But that’s not what the facts and science tend to suggest."

"(Prude) was failed at several junctures along the way. From the moment he left Chicago, it was kind of a Greek tragedy. And unfortunately, the last people he encountered were these police officers," Rich said.

Contact staff writer Justin Murphy at jmurphy7@gannett.com.