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In attempt to keep Eric Garner records sealed, prosecutors point to former Brooklyn D.A.’s failed effort

January 9, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Former Brooklyn D.A. Charles Hynes, AP file photo
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Staten Island District Attorney Daniel Donovan Jr. is fighting against efforts to open the grand jury minutes in the Eric Garner case, citing centuries-old legal doctrine that supports the secrecy of grand jury records.

Donovan also used a prior effort by a past Brooklyn D.A. who went against standing legal doctrine and petitioned the court to unseal protected grand jury records in a time when the city and Brooklyn, as is the feeling today, was on the verge of unrest. The Brooklyn attempt — which ultimately failed — serves as an example of the strength of grand jury secrecy laws, Donovan argued.

Later this month, Donovan and public interest groups will face off in a court hearing regarding whether or not a judge should disregard New York grand jury secrecy laws and release the records in the public’s interest. 

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In court filings, Staten Island prosecutors noted that the request for disclosure must fail because the law demands grand jury secrecy. Donovan further argued that grand jury laws are so stringent, that even when former Brooklyn D.A. Charles Hynes petitioned for disclosure in a 1990s case, the courts refused to find the arguments persuasive enough to overcome standing precedent.

In other words, even when district attorneys petition for release of records, the law demands secrecy. 

Back in 1991, Hynes petitioned the Kings County Supreme Court to release the grand jury minutes after the impaneled jurors declined to indict a Jewish man for the vehicular death of a young African-American boy. Hynes sought to release the records in an attempt to “curb community unrest … and restore confidence in the grand-jury system and in his office,” Hynes noted at the time, which was also explained in Donovan’s Jan. 2 motion to the court.   

Then a Brooklyn Supreme Court justice, the late Judge Theodore Jones Jr. denied Hynes’ request, ruling that such a release would be counterproductive to quieting discord.  

“Instead of calming the community, the release of the minutes would inflame it while at the same time subjecting both the innocent accused and the grand jury to be ‘second guessed,’” Jones wrote in his 1991 opinion on the case. “A grand jury’s decision, taken after extensive deliberation, should not be the subject of a referendum.” 

In the 90s, supporters of Hynes hoped that the reveal of grand jury minutes would soften outrage felt by the African-American community. In an October 1991 New York Times article, leaders of the Lubavitch Hasidic sect said the release of the grand jury minutes would have convinced much of the public that the crash was an unintentional accident.  

In current disclosure bids by groups including the New York Civil Liberties Union, the Legal Aid Society and New York City Public Advocate Letitia James, it was argued that the concerns for grand jury privacy do not exist in the Garner case. For example, the officer involved has been identified.  The government organizations asserted their interest in demystifying the grand jury process and exploring its purpose within the current criminal justice system.

“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 in a past interview. Exempted from this rule are grand jury witnesses who are at liberty to disclose their own testimony.

The Appellate Division, Second Department (a court where Jones would later sit before ascending to New York’s top Court of Appeals, where he sat prior to his death in 2012), upheld the decision to deny Hynes’ appeal, citing that the theories of community confidence in grand jury decisions did not “constitute the compelling and particularized need necessary to overcome the presumption of confidentiality which attaches to grand jury proceedings.”

In court papers, Donovan echoed that 24-year-old court reasoning and noted that, similar to Hynes’ failed attempt at disclosure, the arguments put forth by public interest groups for the release of the Garner records are not “compelling” or “particularized” enough to overcome grand jury secrecy.  

A hearing on the arguments will be held on Jan. 29.


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