Updated: 5:36 pm, Mon Feb 23, 2015

State Judiciary Chief: Give Judges Key Role In Cop Grand Juries


Says Public’s Doubts About System Require Change; PBA Warns of Bias

By Mark Toor

PATRICK J. LYNCH: ‘No separate system for cops.’  

State Chief Judge Jonathan Lippman last week joined the debate over how to handle grand-jury proceedings when a police officer is accused of killing a civilian, proposing that judges take a greater role in the process, with the latitude to question witnesses and decide whether additional ones should be called, as well as giving instructions on the law to the jurors.

He joined Governor Cuomo and State Attorney General Eric Schneiderman in addressing the issue, which has percolated since a Staten Island grand jury declined nearly three months ago to indict Police Officer Daniel Pantaleo in the death of Eric Garner last July.

Mr. Garner, a petty criminal in poor health, died of a heart attack shortly after Mr. Pantaleo yanked him to the ground while deploying what appeared to be a chokehold when he resisted officers’ attempts to arrest him for allegedly selling loose cigarettes.

At Odds With Video

The grand-jury decision spurred outrage by many members of the public who saw a cell-phone video of the confrontation that seemed to offer the basis for an indictment. It sparked weeks of demonstrations. The grand-jury process is secret by law, so Staten Island District Attorney Daniel Donovan offered no explanation for the decision.

A judge is considering a request by Public Advocate Letitia James, the New York Civil Liberties Union and the Legal Aid Society to authorize release of information about the grand jury’s deliberations.

State officials have been considering ways to make the grand-jury process more accessible to citizens.

Judge Lippman, in his annual State of the Judiciary address Feb. 17, stated that trust in the justice system is undermined by questions about whether District Attorneys work too closely with police to handle such cases. “It is obvious that we need significant change in grand-jury practices and protocols in the world we live in today,” he said.

More responsibility needs to be placed on the judges who oversee the grand juries but usually do so at arm’s length, he said.

‘Put Them in Room’

“I am proposing that a judge be physically present in the grand-jury room to preside over the matter,” he said. “The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates. This puts the ultimate responsibility for the grand jury where it belongs —with the court.”

Further, he said, the principle of grand-jury secrecy needs to be modified. “In cases where a grand jury votes not to bring charges—where no true bill emerges—the public is left to speculate about the process, the evidence, the legal instructions and the conclusions drawn by the grand jury,” he said. “In cases of significant public interest, secrecy does not further the principles it is designed to protect but, in fact, significantly impedes fair comment and understanding of the court process.”

Cases for Disclosure

He proposed creating “a crystal-clear statutory presumption in favor of the court disclosing the records of a grand-jury proceeding that has resulted in no charges, in cases where the court finds that the public is generally aware that the matter is the subject of grand-jury proceedings; the identity of the subject of the investigation has already been disclosed or the subject consents to disclosure; and disclosure of the proceedings advances a significant public interest.

“Upon such a finding, the court will be authorized to disclose the record of the proceedings, including the charges submitted to the grand jury, the legal instructions provided in support of those charges and, critically, the testimony of all public servants and experts.”

Judge Lippman said he had submitted legislation that would allow both changes.

Mr. Cuomo last month proposed allowing DAs to issue letters of explanation in cases like Mr. Garner’s, and appointing an independent monitor with access to the evidence used by the grand jury who could recommend a special prosecutor.

Mr. Schneiderman asked Mr. Cuomo to issue an executive order appointing him a special prosecutor in cases in which police officers kill unarmed civilians.

Some critics have said the effort to limit secrecy and increase review of grand-jury cases involving police officers is tantamount to creating a second justice system that is prejudiced against cops.

PBA: Unfairly Singles Out

Patrolmen’s Benevolent Association President Patrick J. Lynch said, “Judges already have a duty and responsibility to review all aspects of grand-jury investigations, including instructions for deliberations given by prosecutors. They already have the authority to alter any ruling that they find does not meet the requirements of law, making the suggested legislation unnecessary. The rule of law should apply evenly and fairly to all without exception. There should not be a separate system of justice for police officers.”

Eugene O’Donnell, a former prosecutor and police officer who now teaches at John Jay College of Criminal Justice, said, “I reject the idea that there’s a significant problem with police unjustifiably killing people in New York City...These reforms are premised on a problem that doesn’t exist here.”

Liang Case Proves Point?

Further, he said, the manslaughter indictment obtained against Officer Peter Liang by Brooklyn DA Kenneth S. Thompson shows that indictments can be obtained against police officers in the city.

That officer’s gun went off as he opened a door to a darkened stairwell in the Pink Houses—possibly because he had his finger on the trigger in violation of department regulations—and the bullet killed Akai Gurley, who was walking down the steps below with his girlfriend. Police Commissioner William J. Bratton called Mr. Gurley “a total innocent.”

Mr. O’Donnell said that if a DA is worried about grand-jury secrecy, that process can be skipped and prosecutors can file a criminal complaint, which is not subject to secrecy rules. He noted that a criminal complaint does not provide the political cover for the DA that a grand jury does.

He also took issue with the idea that DAs cannot comment on grand-jury decisions. He recalled the case of Jose (Kiko) Garcia, a convicted drug-dealer shot to death in an apartment-house lobby in 1992 by Officer Michael O’Keefe.

Bore False Witness

Relatives and friends of Mr. Garcia claimed he was executed in cold blood by Mr. O’Keefe, leading to nights of rioting in the Washington Heights section of Manhattan. But forensic evidence and police-radio transmissions indicated that their stories were implausible and that Mr. Garcia was struggling to grab Officer O’Keefe’s gun when he was shot.

When a grand jury announced it was not indicting Mr. O’Keefe, then-Manhattan District Attorney Robert M. Morgenthau released a detailed report on the evidence on which the grand jurors’ decision was based. Mr. Garcia’s lawyer asked U.S. Attorney Otto Obermaier to investigate whether Mr. Morgenthau had violated grand-jury secrecy laws, but Mr. Obermaier responded that his office had no jurisdiction in the dispute.