AG LETITIA JAMES WITHDRAWS FROM EFFORT TO DISARM PRISON GUARDS IMPLICATED IN KILLING ROBERT BROOKS
30 DAYS AFTER BROOKS WAS KILLED, NO CRIMINAL CHARGES HAVE BEEN FILED AND NONE ARE IN SIGHT
David J. Kingsley II, Nicholas J. Anzalone, Robert T. Kessler & Mathew J. Galliher were “involved” in killing Robert Brooks at the Marcy Correctional Facility on Dec. 9, according to Gov. Kathy Hochul. New York Attorney General Letitia James filed court actions to disarm all four under New York’s “Red Flag” gun law but the effort is faltering and James withdrew from the cases last week. Photo credit: body camera video courtesy the New York State Attorney General’s office.
EXCLUSIVE
Jan. 9, 2025
State officials' attempt to take guns away from three of the 13 prison guards accused of killing inmate Robert Brooks has been thwarted, at least for now, and State Attorney General Letitia James has withdrawn from the cases.
Brooks, a 43-year-old Black-American, was beaten and choked to death by an all-white gang of guards in an upstate New York prison Dec. 9, body camera video released by James shows.
The video is worse than the video that captured George Floyd's murder by Minnesota police in 2020. It shows guards, in essence, torturing Brooks before finally choking him to death. The preliminary cause of Brooks' death was "asphyxia due to compression of the neck," according to court records obtained by The Free Lance.
Gov. Kathy Hochul announced she'd ordered the Commissioner of the state agency that manages New York's prisons, the Department of Corrections and Community Supervision, or DOCCS, to fire the 13 guards she said were "involved" in Brooks’ death along with a nurse seen smiling.
"Yesterday I directed DOCCS Commissioner Martuscello to immediately begin the termination process for 14 individuals who were involved in the fatal attack on an incarcerated individual at Marcy Correctional Facility," a Dec. 21 news release said.
Currently, the 13 guards and the nurse are suspended without pay, the governor's office said.
On Dec. 24, the State Police filed emergency applications under New York's Red Flag gun law for court orders disarming suspended Correction Officers David J. Kingsbury II, Nicholas J. Anzalone, Robert T. Kessler and Mathew J. Galliher. Police contended they killed Brooks and were therefore too dangerous to possess firearms.
The State Police won a preliminary order disarming Kingsbury, but lost all three of its preliminary cases against Anzalone, Kessler and Galliher.
Kingsbury's petition was considered separately because he lives in Jefferson County, while Anzalone, Kessler and Galliher live in Oneida county. The difference in location meant different judges considered the cases. Justice William F. Ramseier ruled against Kingsbury, while Justice Peter M. Rayhill ruled in favor of Anzalone, Kessler and Galliher.
In all four cases, New York’s Red Flag law requires what it calls a second or "final" hearing. Unlike the preliminary hearing, before a final hearing can be held notice of the date and time of the final hearing must be delivered to the allegedly “dangerous” person, which the law calls a “respondent.”
Kingsbury was given notice of a final hearing on Jan. 2, but didn't show up or even send a lawyer.
When parties given notice of legal proceedings fail to show up or send a lawyer, judges typically rule the party "defaulted." Courts typically grant the opposing party, the one that showed up, what they ask for.
But justice Ramseier declined to immediately rule Kingsbury in default and issue a final order disarming him when the final hearing ended last Thursday.
"The Court will review" the evidence "and issue a written decision as quickly as possible," Justice Ramseier said before adjourning.
A week later, justice Ramseier still has not issued his decision—suggesting he might rule against James's office and restore Kingsbury's gun rights.
The situation was even more challenging for James's office in Oneida county, where the three other Red Flag law petitions are pending.
James, the state Attorney General, is responsible for investigating the killing of unarmed citizens by police, whether incarcerated or not, under an Executive Order signed by former Gov. Andrew Cuomo in 2015. But James, The Free Lance revealed exclusively, is already defending two of the guards accused of killing Brooks from a federal civil rights lawsuit alleging they used unjustified and sadistic force against another prisoner at Marcy in 2020.
Under the law, that meant James had an ethical problem: a potential conflict of interest. James stepped aside and appointed Onondaga County District Attorney William J. Fitzpatrick special prosecutor on Jan. 3.
The same day, the lawyer representing James's office in all three Red Flag cases in Oneida county, Assistant Attorney General Mathew J. Whalen, told Justice Rayhill the Attorney General’s Office "hereby withdraws as counsel."
Whalen did not explain the decision. Presumably, the same conflict of interest considerations that motivated James to hand off the criminal investigation to a special prosecutor also motivated her to hand off the Red Flag cases too.
On Monday, John F. Queenan, a partner at Albany law firm Rivkin Radler, wrote Justice Rayhill advising the court the firm "anticipates" replacing James' office once "finalizing retention" agreements.
James's press office did not respond to an invitation to explain her decision or comment.
Thomas DiNapoli, the State Comptroller, would have to approve hiring a private law firm to replace the Attorney General. A spokesperson for the Comptroller's office did not respond to a request for comment on whether the office approved James's request.
Justice Rayhill rescheduled final Red Flag hearings for Kessler and Galliher for Jan. 13 and 14, respectively. Anzalone's hearing is not scheduled. His lawyer filed a request to subpoena evidence from police to prepare for the hearing. Justice Rayhill has to decide that request before scheduling the hearing.
Anzalone's lawyer, as well as lawyers for Kessler and Galliher, did not respond to invitations to comment.
30 days after the guards killed Brooks, none have been criminally charged and all but one of them has kept their guns—and that one might soon get his back.
Fitzpatrick, the special prosecutor, did not respond to an invitation to report on the status of his criminal investigation into Brooks’ killing.
For tips or corrections, The Free Lance can be reached at jasonbnicholas@gmail.com or, if you prefer, thefreelancenews@proton.me.