P, DAVID SOARES COUNTY OF ALBANY Davin M. Rosst Distncr ArroxNEY ‘Cher AssstAR Disteier ATTORNEY OFFICE OF THE DISTRICT ATTORNEY (CunisoPHee D. HORN ALBANY COUNTY JUDICIAL CENTER (CHERYL K, FOWLER ‘SPRCTAL COUNSEL ei pen Guia Duro Cae assstan ALBANY, NEW YORK 12207 (618) 487-5460 - Pax: (518) 487-508 oe Hon, Andrew M, Cuomo Executive Chamber The Capitol Albany, NY 12224 Re: Investigation into the Death of Donald Ivy ‘Your Excellency: On Wednesday, July 8, 2015, you signed Executive Order No. 147, relating to the appointment of the Attomey General as a special prosecutor in certain cases where the death of an unarmed civilian is caused by a law enforcement officer. Since April 3, 2015, my Office has been condueting an independent investigation into such an occurrence, the death of Donald Ivy. Progress has been made in the investigation however, since July 8, counsel for the police have questioned our jurisdiction over the investigation and are seeking clarification. We are facing uncertainty over whether or not Order No. 147 is intended to be retroactive. Although Order No. 147 contains no discussion of an effective date, the explanation for the Order laid out in its whereas clauses would suggest that it should be applied retroactively. After all, the alleged public perception of bias by district attorneys was as pertinent on April 3 as it was on July 8, Presumably the Order would apply, perforce, to all the cases it was intended to address, A contrary interpretation would undermine the purpose of the Order. On the other hand, Executive Orders that do not specify an effective start date are generally thought to apply only prospectively, like normal legislation. But even that principle is not helpful here, since it is not clear if Order No. 147 would apply prospectively fo the date of an incident, the commencement of an investigation, or the start of a grand jury presentation. Because of the ambiguities created by the Order, the investigation into the death of Donald Ivy hhas been thrown into Limbo. If the Order applies to that investigation, my staff and I may not somuch as inguite into the incident further. If not, we have a continuing duty to see that justice is done. ‘This is not an academic issue, If my office were to act in this case without authority, any result would be in jeopardy. ‘The same would be true of the Attorney General’s Office as Special Prosecutor. And in either case, the prosecutor without authority would be shor of his immunity to civil suits, a perilous position indeed. The family of Donald Ivy deserves to know who is responsible for the investigation into the death of their loved one, ‘The public, no less, deserves to know the same, Finally, the men and women of this Office deserve to know what cases are theirs without subjecting themselves to civil liability. Only then can they perform their duty to seek justice without fear and without favor. I respectfully request clarification regarding the temporal limitations of the Order, and specifically its application to the investigation into the death of Donald Ivy. Yous sincerely, P. David Soares Albany County District Attorney ce: Hon, Eric T. Schneiderman Office of the Attorney General The Capitol Albany, NY 12224 Alphonso David, Esq. Counsel to the Governor Executive Chamber The Capitol Albany, NY 12224