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Orange County DA's press release on grand jury verdict on Michael Lembhard shooting

Orange County DA's press release on grand jury verdict on Michael Lembhard shooting

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Published by thrnewsdesk
Statement by Orange County District Attorney Frank Philips on the grand jury decision to not charge Newburgh police in the shooting of Michael Lembhard
Statement by Orange County District Attorney Frank Philips on the grand jury decision to not charge Newburgh police in the shooting of Michael Lembhard

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Published by: thrnewsdesk on Jul 11, 2012
Copyright:Attribution Non-commercial


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The Orange County Grand Jury has determined that Newburgh City Police Officers EricHenderson and Nicholas Cardinale were justified, pursuant to Article 35 of the Penal Law, inusing deadly physical force when they shot Michael Lembhard to death on March 7, 2012. Nocriminal charges will be filed against either of the police officers and a No True Bill of Indictment was filed on July 10, 2012 in Orange County Court.We will not be holding a press conference to discuss this case. To hold a pressconference necessarily requires a question and answer period. In an uncontrolled setting theDistrict Attorney could inadvertently disclose Grand Jury testimony. It is a crime to disclosesuch testimony.The District Attorney has a legal and ethical duty to fully and fairly present evidence to aGrand Jury made up of 23 citizens of Orange County. It is those 23 citizens, not theprosecutor, who determine whether or not to file criminal charges.Many people are not familiar with Grand Jury proceedings. Each year 276 of our citizensserve on 12 separate grand juries. Each of the 23 Grand Jurors is chosen at random by aCounty Court judge. A Grand Jury proceeding is not the same as a trial and there are severalsignificant differences between a Grand Jury and a trial jury.
 At the time Grand Jurors are selected they cannot be questioned by the District Attorney. They cannot be challenged or excused by the District Attorney. Trial jurors are extensively questioned and can be excused.
During the presentation of a case Grand Jurors can ask questions of thewitnesses and of the prosecutor. Trial jurors cannot ask questions.
The District Attorney cannot make either an opening statement or a summationto the Grand Jury as he does at a trial.
The Grand Jury requires a lesser burden of proof to return an indictment. Itdoes not have the higher burden of “proof beyond a reasonable doubt” that isrequired at trial.
To return an indictment only 12 of the 23 members of a Grand Jury must agree. A trial jury verdict requires the unanimous agreement of all 12 jurors.
Grand Jury proceedings are secret. Neither the District Attorney nor any GrandJuror can disclose the testimony or deliberations. It is a felony to do so. Trial jurors can discuss all aspects of the trial, including their deliberations, after theyhave reached a verdict.
The Grand Jury is an independent body. It does not work for the District Attorney or the police. Any prosecutor who might attempt to impair the integrityof the Grand Jury would himself face penalties.It is the policy of the Orange County District Attorney’s Office in any police officerinvolved shooting, whether or not it results in a fatality, to present such a case to the GrandJury. The Grand Jury, not the District Attorney, is charged with the responsibility of reviewingevidence and making the determination of whether the police officers’ use of deadly physicalforce was justified, or, in the alternative, should result in criminal charges being filed againstthe police.2
The Grand Jury has concluded its investigation and returned a No True Bill as to PoliceOfficers Henderson and Cardinale. This means that the Grand Jury has found the officersactions in using deadly physical force against Michael Lembhard was justified by Article 35 of the Penal Law and that they acted in self-defense. The Grand Jury determined that no criminalcharges against the officers are warranted after an extensive examination of the evidence.This Grand Jury met on six dates and heard testimony from twenty-four witnesses.These included civilians, police officers, and expert witnesses. They also reviewed ninety-sixexhibits of evidence presented to them during the proceedings. Grand Jury proceedings, bylaw, are secret. The investigation into the death of Michael Lembhard, conducted anddeveloped outside the Grand Jury process, is not bound by any such rule of secrecy.The following is a synopsis of the evidence obtained in the course of the District Attorney’s investigation. It is not a synopsis or summary of the Grand Jury testimony. Theinformation that follows comes from our review of police reports, court documents, lab reportsand interviews of witnesses.On March 7, 2012, at approximately 11:30 p.m., fourmembers of the City of Newburgh Police Department’s anti-crimeunit were patrolling on Liberty Street, in the City of Newburgh.They were in an unmarked SUV in plain clothes wearing vests thatwere marked “Police”. One of the duties of the anti-crime unit isto apprehend individuals who are “wanted” on arrest and/orbench warrants issued by a court. While on Liberty Street, the3

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