New York City

District Attorneys within right not to disclose grand jury information

Public Interest Groups Seek Transparency

December 11, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
A demonstrator holds a sign bearing the likeness of Staten Island’s Eric Garner and Ferguson’s Michael Brown before a march to protest the death of Garner on Saturday in Staten Island. AP Photo/John Minchillo
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As grand juries from Ferguson, Missouri, to Staten Island, N.Y., concluded that facts were not sufficient to indict police officers in separate incidents of the fatal deaths of two unarmed black men, discourse has focused on Brooklyn and the larger role of grand juries as the Brooklyn District Attorney’s Office prepares to present its case to a grand jury in the police-involved shooting death of another unarmed black male, Akai Gurley. 

Earlier this month, Brooklyn D.A. Kenneth Thompson announced that his office would impanel a grand jury to determine whether evidence supports a criminal indictment of probationary NYPD officer Peter Liang who shot Gurley in what police have characterized as an accident.

“Everything points to accidental discharge,” NYPD Commissioner William Bratton said. 

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There was much anticipation surrounding Thompson’s announcement, but some have since become critical, not of Thompson specifically, but of the grand jury process as a whole and the seeming cloak of secrecy surrounding it. 

Immediately following the decision of a Staten Island grand jury to no-bill an indictment against police officer Daniel Pantaleo, Staten Island District Attorney Daniel Donovan Jr. cited grand jury secrecy laws as grounds for keeping the Garner record sealed. And in Brooklyn, Thompson, who is not required to bring a case in front of a grand jury (there is the option to decline prosecution) and appeared deliberate and thorough in making his decision, was silent about when a grand jury would be selected and impaneled. The Brooklyn D.A. also declined to include information as to the exact range of criminal charges to be presented to the grand jury as possible indictments against Liang. 

As The New York Times reports, grand jury investigations are typically kept confidential for reasons like protecting the privacy of individuals, who might be under scrutiny but who are ultimately not charged, or to maintain the integrity of a continuing investigation. And New York law prohibits disclosure of grand jury records.

“New York’s Criminal Procedure Law 190.25 states that no grand juror or anyone else may disclose any testimony, evidence, decision or result of any grand jury proceeding unless upon written order of the court,” Brooklyn Law School professor Lisa Smith advised the Eagle. Exempted from this rule are grand jury witnesses who are at liberty to disclose their own testimony.

Donovan later filed a court request asking permission to disclose bare portions of Garner’s record.

“The district attorney of Richmond County has filed a sealed, ex parte, application for an order authorizing the release of certain limited information regarding the conduct of the grand jury proceedings in the subject presentation,” Acting Staten Island Supreme Court Justice Stephen Rooney wrote in his December decision on this matter. 

In considering disclosure, Rooney explained “the principle of grand jury secrecy is not absolute” and instead must be weighed against the “public interest to be served [by]…disclosure.” 

The limited information released by Rooney’s order included the number of witnesses, how many witnesses were police officers versus civilians and the length of the proceedings. According the facts made public, there were 23 on the Garner grand jury — 14 were white and the remaining nine of ethnic diversity. Pantaleo testified and, according to his attorney Stuart London, was asked about 20 questions by the impaneled group.
D.A. Donovan did not seek to disclose more in-depth information about what was presented to the grand juror, a point Judge Rooney noted in his order. “The petitioner does not seek the release of transcripts of grand jury testimony or exhibits,” the judge wrote.

On Monday, the Legal Aid Society filed a motion Monday requesting a Staten Island judge order the grand jury records in the Garner case be unsealed and disclosed to the public for review. According to the New York Law Journal, the motion filed on Monday before Justice Rooney is under seal. However, a source familiar with the matter confirmed the filing.

And keen on demystifying the grand jury process and exploring its purpose within the current criminal justice system, civil rights, civil liberties and good government groups, also on Monday, sent a letter to Gov. Andrew Cuomo and legislative leaders in Albany. The letter called for open public hearings and a transparent and participatory legislative process following the failure of the Staten Island grand jury to indict Pantaleo.

“The broad public outcry following the grand jury decision on Staten Island … indicates that a comprehensive review of the criminal justice system is warranted and long overdue,” said Susan Lerner, executive director of Common Cause N.Y. “Public input and participation in that review is not optional.”

“Much remains to be done to repair the culture of policing in New York,” New York Civil Liberties Union Executive Director Donna Lieberman noted. “An open, transparent, deliberative process to review the failings of the criminal justice system is the right place to start.”

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