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AG James' special investigations and prosecutions unit announces determination of investigation into death of India Cummings

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Sat, Oct 3rd 2020 10:55 am

From the Office of New York Attorney General Letitia James:

New York Attorney General Letitia James’ special investigations and prosecutions unit (SIPU) on Friday announced the conclusion of its investigation into the death of India Cummings. After an exhaustive investigation, SIPU did not find criminal culpability on the part of any of the individuals responsible for her care during the period of her incarceration.

Because the vast majority of the evidence underlying SIPU’s decision was obtained through grand jury subpoenas, the evidence itself cannot be released. The attorney general has vigorously advocated for grand jury transparency and, as public advocate for the City of New York, sued to seek release of the grand jury proceedings involving the death of Eric Garner. The evidence obtained in the Cummings investigation falls under rules of secrecy governing grand jury proceedings and she is constrained by existing law to release only limited factual findings.

“The death of India Cummings was a terrible tragedy, and we mourn her loss alongside the loved ones and communities she leaves behind,” James said. “SIPU conducted an exhaustive review of all the evidence and did not find facts to support criminal charges. Our current grand jury secrecy laws mean we are unable to release the underlying evidence to Ms. Cummings’ family and the public. This is yet another example of the critical need for grand jury reform, so that we can be fully transparent with the public without violating the law.”

The extent of the information which can be released publicly regarding the investigation and resulting determination into the death of Cummings follows below.

Background

On Feb. 21, 2016, India Cummings died at Buffalo General Hospital in Buffalo. She had been brought to the facility on Feb. 17, 2016, from the Erie County Holding Center (ECHC), also in Buffalo, where she had been incarcerated and experiencing declining health for the 16 days prior. At that time, the Erie County Medical Examiner’s Office characterized the cause of Cummings’ death as “undetermined.” She was 27 years old.

In June 2018, the New York State Commission of Correction issued a report concerning the care and treatment provided to Cummings by the Erie County Sheriff’s Office while she was an inmate at ECHC. The report concluded that Cummings’ death was caused by a “massive pulmonary embolism resulting from acute renal failure, rhabdomyolysis, dehydration and fracture of the humerus.” It stated the medical and mental health care she received at the jail “was so grossly incompetent and inadequate as to shock the conscience,” and classified the death as a “homicide due to medical neglect.”

On Oct. 16, 2018, the Commission of Correction issued a criminal referral to the OAG as authorized under executive law § 63(3)*. This referral requested the OAG “investigate the alleged commission of any indictable offense or offenses associated with” the death of India Cummings, and “prosecute any person, or persons, believed to have committed the same and any crime or offense arising out of such investigation, prosecution, or both.”

Investigation

Pursuant to the referral, the OAG launched an exhaustive 23-month investigation into Cummings’ care and treatment while in the custody of ECHC with the aim of identifying provable criminal conduct that caused or contributed to her death. The investigative steps taken by the OAG’s team of attorneys and investigators included:

•Procuring and reviewing recordings of 911 calls and radio runs associated with Cummings’ initial arrest; the Lackawanna Police Department records and the complete court files for the criminal cases for which she was being incarcerated; and full transcripts of the related court proceedings.

•Procuring and reviewing thousands of pages of Cummings’ medical records from ECHC, Erie County Medical Center (where Cummings was treated at the outset of her incarceration), and Buffalo General Hospital, as well as the autopsy report from the Erie County Medical Examiner’s Office.

•Consulting with a full-time nurse (with expertise in standards of medical care) from the OAG’s Medicaid fraud control unit.

•Reviewing the ECHC training manual and all official facility policies related to identifying and managing inmates’ medical and mental health issues.

•Reviewing the video footage of Cummings throughout the 16-day period of her incarceration at ECHC.

•Visiting and inspecting the ECHC facility, including the cells in which Cummings was held.

•Interviewing approximately 50 civilian witnesses, including: Cummings’ treating physicians at Buffalo General Hospital; the director of the Erie County Division of Forensic Mental Health Services and multiple members of its staff; Cummings’ sole visitor to ECHC; Cummings’ ex-boyfriend; a friend of Cummings with whom she was in regular contact immediately prior to her incarceration; Cummings’ landlord; the Erie County Medical examiner; the emergency medical technicians who transported Cummings to Buffalo General Hospital; multiple former fellow inmates of Cummings, now living at various locations throughout the state; and former neighbors of Cummings.

•Procuring and reviewing thousands of pages of records from the New York State Office of the Professions, the state agency that regulates more than 50 licensed professions, including medicine and nursing.

•Consulting with Dr. Roger Mitchell, chief medical examiner for the District of Columbia and a leading authority with respect to deaths in the custody of law enforcement.

Determination

Having subjected this vast collection of evidence to the most careful legal analysis – under theories of intentional wrongdoing, recklessness, and criminal negligence – the OAG has concluded that, although unquestionably a terrible tragedy, Cummings’ death cannot be attributed to provable criminal conduct on the part of any of the individuals responsible for her care during the period of her incarceration. For this reason, criminal charges will not be pursued.

Because the evidence that underlay the OAG’s determination in this matter was in large measure gathered pursuant to grand jury subpoenas, the OAG is prohibited from publicly releasing this information per rules of secrecy set forth in CPL § 195.25(4)(a). The OAG recognizes the current laws regarding grand jury secrecy continue to be a source of consternation for victims’ families and for the public seeking transparency, and James continues to advocate for reforming the grand jury process.

At the same time, there is an ongoing civil litigation associated with Cummings’ death. The OAG’s determination as to criminal liability does not preclude a court’s finding of civil liability on the part of any of the individuals or institutions found to have violated their duty of care to Cummings. Such litigation also allows for the possibility of broad access to the very sort of information about the circumstances surrounding Cummings’ death that OAG is not at liberty to share due to grand jury secrecy laws.

The OAG is also mindful that the Commission of Correction recently issued a new evaluation, conducted in December 2019, of health services for Erie County Correctional Facility and ECHC. Although it did identify a number of outstanding deficiencies in these services, the evaluation in large measure found the facilities to be compliant with state regulations.

In light of the foregoing, and with the deepest sympathies for Cummings’ family, the OAG at this time is closing its investigation into the death of India Cummings.

References:

The full report is available online at: https://s3.amazonaws.com/bncore/wp-content/uploads/2018/07/18-F-120.pdf

•*Under this section, the attorney general shall, “[u]pon request of the head of any…department, authority, division or agency of the state, investigate the alleged commission of any indictable offense or offenses in violation of the law which the officer making the request is especially required to execute or in relation to any matters connected with such department, and to prosecute the person or persons believed to have committed the same and any crime or offense arising out of such investigation or prosecution or both, including but not limited to appearing before and presenting all such matters to a grand jury.”

•The OAG was originally notified of Cummings’ death on March 14, 2016. At that time, the OAG gave due consideration to whether it had jurisdiction over any aspect of the matter pursuant to executive order 147, which grants the OAG authority to investigate and prosecute the deaths of unarmed civilians at hands of law enforcement. Because at that time the OAG had no reason to believe that Cummings’ death had been “caused” by law enforcement, the OAG concluded that the matter fell outside of its jurisdiction. Following the release of the Commission on Correction report, the OAG reconsidered its original jurisdictional determination of two years earlier, and initiated an investigation in September 2018 pursuant to executive order 147. The OAG’s jurisdiction under that authority, however, only extended to the conduct of any law enforcement officers implicated in wrongdoing. In any event, that investigation was preempted shortly thereafter by the criminal referral from the Commission of Correction.

•The original Commission of Correction report contained statements made by potential targets of the OAG’s investigation that New York law regards as “compelled” statements. The U.S. Constitution largely forbids the use of an individual’s compelled statement against him (or her), and even exposure of a potential target’s compelled statements to the OAG’s investigative team would have risked compromising the investigation. For this reason, the investigative team did not review and was otherwise shielded from the substance of the report.

•Under CPL § 195.25(4)(a), “Grand jury proceedings are secret, and no grand juror, or other person [including members of a prosecuting agency]…may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding.”

•In the aftermath of the death of Garner, James, then serving on the New York City Public Advocate, filed a lawsuit to force the release of testimony from the grand jury that declined to indict a police officer in Garner’s death. The lawsuit and subsequent appeals were unsuccessful.

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