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Foss: In Schenectady police in-custody death case, grand jury gets it right

Foss: In Schenectady police in-custody death case, grand jury gets it right

Foss: In Schenectady police in-custody death case, grand jury gets it right
Schenectady Police Officer Mark Weekes speaks to media after a case in 2016.
Photographer: Gazette file photo

Imagine you're alone in a vehicle with a man who led police on a high-speed chase, then fled from officers on foot and resisted arrest.  

You're driving, and from the front of the car you can hear the man yell that he can't breathe. He yells this over and over again. You've been taught that if someone can talk, he can breathe. 

Do you take the man at his word and treat the situation as a medical emergency? Or do you keep driving, convinced, perhaps, that the man will renew his effort to escape if you stop to check on him? 

That's the choice that faced Schenectady police Officer Mark Weekes while driving a Bronx man named Andrew Kearse to the police station.

Kearse died on that drive, and the state Attorney General's Office decided to present the matter to a grand jury. because it decided the evidence was sufficient for a properly instructed grand jury to find probable cause for a criminal charge. But the grand jury decided not to charge Weekes late last week. 

Having read the attorney general's lengthy report on Kearse's death and watched the video of his fateful ride in a Schenectady police cruiser, I can understand why Weekes chose to keep driving. 

Had I been in his shoes, I might have kept on driving, too. 

The members of the grand jury that reviewed the case likely came to the same conclusion, which would explain why they declined to indict Weekes. 

One of the things that struck me most while watching the video of Kearse's ride in Weekes' car is how alive he seems. 

He speaks loudly and forcefully. 

He's out of breath -- something a reasonable person might chalk up to his recent foot chase with police -- and you can hear him panting. 

Toward the end of the ride, Kearse grows quieter. This quiet is eerie and disturbing, given what we know now: He was dying. But I might have looked at him in my rear view mirror and concluded that he was calming down. Toward the end of the ride, he collapsed on his back and did not speak or move again.

The grand jury made the right call in not charging Weekes, who had every reason to be cautious when dealing with an untrustworthy suspect and no way of knowing that Kearse suffered from a dangerous heart condition. 

Weekes is not a doctor, and even if he were, this appears to have been a difficult case, with the cardiologist brought in to examine Kearse's body telling investigators that "even he would not have recognized from observation alone that Mr. Kearse required advanced cardiac life support measures." 

The cardiologist also makes it clear that Kearse's physical condition deteriorated rapidly, and that the window of time when medical intervention might have saved his life was limited.  

But there was a window, which means that Kearse's death wasn't inevitable. 

The attorney general's report includes recommendations aimed at preventing similar tragedies, and they deserve serious consideration. 

Among other things, the Attorney General's Office recommends that the state Legislature pass a law requiring the state Division of Criminal Justice Services to establish a uniform statewide policy for police departments in New York requiring that officers treat breathing difficulties as medical emergencies. 

The agency also recommends teaching officers that "a complaint about breathing difficulties should not be dismissed because the arrestee is able to talk." 

These are good recommendations, with the potential to save lives. 

But I know from watching the video of Kearse that it can be difficult to tell when a suspect is genuinely struggling to breathe.  

In the video, Kearse looks young, healthy and alive.

Right up until the moment he collapses, and you realize he was telling the truth. 

Reach Sara Foss at [email protected]. Opinions expressed here are her own and not necessarily the newspaper's. 

Correction: An earlier version of this column had an incorrect account of the Attorney General's position on charges.

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