New York's Top Judge Calls for Grand Jury Reform in Police Shootings

by | February 18, 2015

By Robert Gavin

In the wake of polarizing grand jury decisions in the police-related deaths of Michael Brown and Eric Garner, New York's top judge wants judges to oversee the grand jury process in cases involving deadly and near-deadly incidents involving police and civilians.

Chief Judge Jonathan Lippman also wants to make public the testimony of super-secret grand jury proceedings in which the panel elected not to bring charges.

The judge's proposals came as Lippman delivered his final State of the Judiciary; he will reach the mandatory retirement age of 70 on May 19.

"As chief judge, it is not my role to defend or decry a particular grand jury decision," Lippman said. "But the grand jury is a vital component of our judicial system -- under the law, it is a part of the court and an institution for which the Judiciary is ultimately responsible."

Grand juries voted not to bring charges against Ferguson, Mo., police officer Darren Wilson in the Aug. 9, 2014 fatal shooting of Michael Brown, 18, or in the death of 43-year-old Eric Garner, who died on Staten Island after being put in a chokehold by New York City Police Officer Daniel Pantaleo.

Brown and Garner were both black. Wilson and Pantaleo are white. The cases led to outrage and protests across the country with allegations of racism, profiling and injustice. Supporters of the police officers have said the men did nothing wrong.

Lippman said his proposals would aid public access and confidence in the justice system, "preserve the integrity of the judicial branch, law enforcement, and the institution of the grand jury -- in many ways, a relic of another time that must be modernized and updated to meet the complex challenges of today's justice system."

Lippman said at present, the role of a judge in grand jury proceedings is to provide very general "supervision" which includes giving preliminary legal instructions to and sometimes ruling on contested legal issues. Now he wants a law to require judges to be physically present in the grand jury room to preside over the proceedings.

"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," Lippman said. "This puts the ultimate responsibility for the grand jury where it belongs -- with the court, and it largely removes any negative perceptions about the grand jury process in these cases of great public interest."

Lippman argued his other grand jury proposal would "lift the veil of secrecy of these proceedings, without compromising the historical justification for secrecy."

He is pushing a law to provide what he called 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."

He said prosecutors could move to redact testimony that would identify a civilian witness and could ask for a protective order to show the disclosure would jeopardize an ongoing investigation or the safety of witnesses.

Among other proposals, Lippman noted the state will host a National Summit on Human Trafficking and the State Courts from Oct. 7 to 9.

"Individuals charged with prostitution-related offenses are overwhelmingly victims of trafficking, recruited or forced into the commercial sex industry," he said. "Jurisdictions and courts around the country are just beginning to recognize this phenomenon."

Lippman also said attorneys' history of public discipline will now be "readily accessible on the Unified Court System's website."

Lippman also announced that state Supreme Court Justice Michael Coccoma, the state's deputy administrative chief judge for all courts outside Schenectady and who presides over cases in Schenectady, will now also be the Statewide Administrative Judge for Fiduciary Matters.

Coccoma will monitor and enforce compliance with fiduciary appointment rules throughout the state.

"Should a particular problem be identified requiring further investigation, the complaint will be immediately referred to the Special Inspector General for Fiduciary Appointments, with whom he will work closely," Lippman said.

(c)2015 the Times Union (Albany, N.Y.)