Ivy Death Ruled A Homicide As D.A.s Wrestle With Executive Order

Sep 1, 2015

Dozens gathered August 13 in Albany to bring attention to two local cases during a rally outside the District Attorney David Soares' office.
Credit Sean Collins

Five months have passed since the taser-related death of Donald "Dontay" Ivy at the hands of Albany Police. Slow-paced investigations by the department and the Albany County District Attorney's office have upset citizens and alarmed activists.

Attorney Michael McDermott is representing the three police officers who were involved the incident with Ivy in April. He told Time Warner Cable News this week an autopsy on the 39-year-old Ivy revealed his death was caused by an encounter with the police. According to McDermott, the medical examiner’s report states the manner of death as homicide.

Ivy was tased several times by officers who stopped him along Lark Street. He later died.  Ivy's family says he suffered from mental illness and a heart condition. McDermott represents officers Joshua Sears, Michael Mahany, and Charles Skinkle, who have remained on paid leave and have not been charged.

Ivy's death spurred a series of rallies and forums. Capital Area Against Mass Incarceration sponsored one of the rallies.  Spokesman Sean Collins said at the time, regardless of any investigation's findings,  "the outcome is the same and the outcome not just here in Albany, but nationwide, and outcome that is a re-occurring scene every day in the news, of the young black man being killed by the police for one reason or another. There's a general fatigue of that story, and people want to express their anger and frustration and see something change around that."

Albany County D.A. David Soares

The Albany County D.A. was pursuing an independent investigation into Ivy's death. The Times Union obtained a letter dated August 17 in which D.A. David Soares asks New York Governor Andrew Cuomo to use his executive powers to assign the Ivy case to state Attorney General Eric Schneiderman. Soares cited Cuomo's July 8th executive order that puts the state attorney general in charge of investigating and potentially prosecuting police-involved deaths of unarmed civilians.

But Soares isn’t the only local D.A. who has an issue with the executive order. Rensselaer County D.A. Joel Abelove echoes concerns by the state D.A.’s organization.  "I think it just sends a dangerous precedent for the chief executive in the state to send a message to all of the people in New York State that district attorneys cannot be trusted to handle a certain type of case. I don't think that's good, because it doesn't help build confidence in our system, and it tells district attorneys, who've been working, many of us for decades in our chosen field and in this profession and work very heard, that we don't have the credibility and integrity to handle a certain type of case just because of the nature of that case. I think that does a disservice to our elected district attorneys and their staffs."

Rensselaer County D.A. Joel Abelove
Credit Rensselaer County DA Joel Abelove

Abelove stated in a Times Union op-ed piece that legislation drafted by the District Attorneys Association could bring clarification that would allow D.A.'s to do their jobs.  "I would like to see transparency added to the grand jury process. I know that's a big part of some people's frustration and it's something that as I mentioned in my piece, this governor's executive order does absolutely nothing to rectify. There's no greater transparency in the grand jury process with this executive order than without it.  The legislation that was proposed and drafted in part with the help of the D.A.'s association would have addressed the transparency issue with the grand jury process in these cases, so I'd like to see something done legislatively, with input from all sides. And that's generally how, if you end up with good legislation, how the will of the people is reflected."

It was expected that the Ivy case would possibly be presented to a grand jury. 

Attorney McDermott, who did not return calls for comment, proclaimed the Ivy death ruling is a medical diagnosis and said it does not implicate any wrongdoing or criminality. He added the report also states that Ivy’s cause of death stems from a cardiac event that occurred during the incident.

Two months after the incident, APD initiated a policy limiting officers to Tasing a suspect no more than three times. Police say the policy was being developed before the encounter with Ivy.