On October 19, 2018, a Schenectady County grand jury cleared Schenectady Police Officer Mark Weekes of criminal wrongdoing in the death of a man in police custody, declining to file any criminal charges against him after being presented with the case by the New York state attorney general’s office.
Officer Weekes was under investigation by special prosecutors pursuant to Governor Andrew Cuomo’s 2015 Executive Order No. 147, which empowers the AG’s office to investigate and, if warranted, prosecute cases in which a law-enforcement officer causes the death of an unarmed civilian. On May 17, 2011, 36-year-old Andrew Kearse died of cardiac arrhythmia after fleeing a traffic stop, being chased down and apprehended by police officers, and transported by Weekes to the Schenectady Police station. Prior to the involvement of the AG’s office, a New York State Police investigation cleared Weekes of wrongdoing.
Kearse, who had absconded from parole and had a dangerous heart condition, ran a red light and was speeding down city streets. Police Sergeant Dean DeMartino, who had tried to pull Kearse over, apprehended Kearse at a friend’s house. When confronted by DeMartino, Kearse ran through his friend’s house and backyard and several other properties before officers caught and handcuffed him; at the point, the chase had left all officers involved, as well as Kearse, out of breath. Weekes (who was not involved in the initial call, and therefore did not know what, if any, charges should be made) drove Kearse back to the friend’s house, where Weekes got out and spoke to other officers. During the ride and while waiting at the house, Kearse yelled that he could not breathe, which was heard by several officers, including Weekes.
During the transport to the station, Kearse continued to complain of difficulty breathing. Weekes (an Air Force veteran who served in Afghanistan), in his sworn statement to the New York State Police, said that his military and police-academy training and years of experience taught him that “if someone can speak, they can breathe.” This training was verified by other members of the Schenectady Police Department.
Kearse appeared to lose consciousness shortly before they arrived at the police station, but video footage shows that, at the station, Kearse was still breathing, and Officer Weekes was able to obtain a pulse. At that point, Weekes immediately called for an ambulance, which was inadvertently directed to the wrong address. While awaiting the ambulance, Kearse’s condition worsened; Weekes immediately administered CPR, and a defibrillator was obtained from inside the station. The defibrillator did not administer a shock, indicating that a heartbeat was present. Unfortunately, Kearse was pronounced dead later that evening at Ellis Hospital.
Officer Weekes’ attorney, Andrew Safranko, sharply criticized the AG’s office for investigating the incident in the first place. Executive Order No. 147 empowers the office to investigate cases in which law enforcement causes the death of an unarmed civilian. However, there was never any allegation that Weekes or another officer utilized any method of force; no weapon was discharged, no choke-hold employed.
“The fact that Officer Weekes, the transport officer, was being investigated for his actions that day is simply wrong, and he now has a vote of a grand jury to prove it,” Safranko said. “This is in addition to the complete exoneration of Officer Weekes by the New York State Police, who conducted a complete and thorough independent investigation into the death of Mr. Kearse, as well as two independent medical professionals who opined that they themselves would not have realized Mr. Kearse was in medical distress even with their advanced medical training.”
Safranko was adamant that the decision to investigate violated the letter and spirit of Executive Order No. 147. “This was a gross overreach of power and jurisdiction,” he said. “There is no evidence whatsoever that Officer Weekes caused the death of Mr. Kearse. To the contrary, the medical reports, hospital records, and the forensic autopsy all place the blame squarely on Mr. Kearse’s preexisting condition.”
“The Attorney General has been given an awesome responsibility by Executive Order 147 to oversee police officers in very narrow circumstances,” Safranko continued. “We, as citizens, have as much responsibility to require them to exercise that power properly, to justify their continued funding and power.”
Attorney General Barbara Underwood released a 185-page report on the investigation, which included recommendations on policy changes, which is standard procedure even when the grand jury declines to bring charges. “Officer Weekes is a ten-year veteran of the Schenectady Police Department and a veteran of the United States Air Force,” Safranko said. “After growing up in Schenectady, he wanted nothing more than to be a member of the police department. He has served with honor and distinction his entire career, and the citizens of Schenectady are lucky to have him.”