New York Times
Feb. 17, 2015


Head of New York’s Top Court Says Judges Should Oversee Grand Juries in Deaths Involving Police

By JESSE McKINLEY

New York’s top judge proposed on Tuesday that judges oversee grand juries deliberating police-related killings of civilians and be granted greater leeway to make the testimony to such juries available to the public.

In his annual State of the Judiciary address in Albany, Jonathan Lippman, the chief judge of the Court of Appeals, called the grand jury system “a relic of another time” that needed overhaul in light of deadly police encounters, apparently a reference to the case of Eric Garner, an unarmed man who died after a police chokehold last summer.

In suggesting new legislation, Judge Lippman said while it was “not my role to defend or decry a particular grand jury decision,” the system as a whole must be considered fair.

“The grand jury is a vital component of our judicial system,” Judge Lippman said. “Under the law, it is first and foremost a part of the court and an institution for which the judiciary is ultimately responsible.”

Judge Lippman is just the latest of many state and local leaders to weigh in after the Garner case, in which a grand jury on Staten Island declined to indict the police officers involved in the altercation. The decision set off protests and added to a national debate over the criminal justice system.

Last month, Gov. Andrew M. Cuomo made criminal justice reform a central tenet of his State of the State address, promising a seven-point plan, like allowing district attorneys to release information about grand jury deliberations and appointing a special monitor to review proceedings and recommend prosecutors.

Attorney General Eric T. Schneiderman, who attended Judge Lippman’s speech and later praised his proposals, has also sought new powers to look into killings of unarmed civilians by law enforcement officers.

Judge Lippman’s ideas would go further — placing judges squarely in the middle of grand jury activities, something that national groups say would set New York’s judges apart from jurists in other states.

Josh Marquis, a board member of the National District Attorneys Association and a district attorney in Oregon, said he felt such a proposal ventured too far into law enforcement’s terrain.

“The grand jury is not part of the adjudicative process,” he said. “It’s part of the charging process.”

The proposals face an uncertain future in the Legislature, with a newly elected Republican majority in the Senate and a Democrat-dominated Assembly still reeling from a recent change of leadership. Judge Lippman had a close relationship with Sheldon Silver, the Lower East Side Democrat who stepped aside as the Assembly speaker this month after his arrest on federal corruption charges.

The chief judge’s speech garnered mild reactions in the Capitol.

Mike Whyland, a spokesman for the new speaker, Carl E. Heastie, said that the proposal merited consideration, and that the Assembly would convene hearings on criminal justice this year. A spokesman for the governor noted Mr. Cuomo’s stated commitment to overhauling the grand jury system, adding, “We will continue to work with all who share in these goals.”

In an interview on Tuesday, Judge Lippman said that he had not discussed his proposals with Mr. Heastie or the Republican leader of the Senate, Dean G. Skelos of Long Island. Senator Skelos did not respond to requests for comment.

Initial reaction from New York City’s largest police union suggested that Judge Lippman’s proposed legislation was unwelcome.

“Judges already have a duty and responsibility to review all aspects of grand jury investigations, including instructions for deliberations given by prosecutors,” said Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, who called Judge Lippman’s proposals 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.”

In Albany, Judge Lippman said that prosecutors were seen by some as too close to the police to fairly impanel a grand jury inquiry; he envisioned a much more muscular role for judges, who now offer only basic guidance. He suggested that judges be physically present in grand jury rooms in cases of homicide or felony assault of civilians involving the police: making legal rulings, questioning witnesses and rejecting “inadmissible evidence or improper questions.” A judge would also be required to “provide final legal instructions before the grand jury deliberates.”

“This puts the ultimate responsibility for the grand jury where it belongs — with the court,” he said.

In addition, the chief judge also proposed lifting “the veil of secrecy,” allowing judges to release information about grand jury proceedings when they decide not to indict, including the legal instructions provided and testimony.

Currently, such proceedings are sealed under state law, so judges have little choice but to deny requests to release information when a grand jury has declined to indict someone.

Kenneth P. Thompson, a Democrat who is the district attorney in Brooklyn, offered qualified support for the disclosure element of Judge Lippman’s proposals, saying he would support releasing the transcripts of grand jury proceedings in police-involved deaths, “so long as a court oversees the process to ensure that witnesses are protected.”

For his part, Judge Lippman, who is retiring this year, said that prosecutors themselves were often unfairly accused of being biased, typically by community members who believe that the system favors those in law enforcement, and who are unfamiliar with the intricacies of a centuries-old grand jury mechanism.

“Let’s face it: Able and dedicated prosecutors and the grand jury process cannot win in these inherently incendiary situations,” he said. “Damned if you do and damned if you don’t, no matter how strict the adherence to fairness and the rule of law.”

James C. McKinley Jr. contributed reporting.

A version of this article appears in print on February 18, 2015, on page A16 of the New York edition with the headline: Revise Grand Jury Rules, Top New York Judge Says.