Following the lack of an indictment in two widely-publicized cases involving police homicides in Ferguson, Mo., and Staten Island, New York City, calls for grand jury reform are growing louder.
In the case of Eric Garner, where a police officer placed Garner in a banned chokehold tactic while arresting him for allegedly selling untaxed cigarettes, several groups have filed a court petition requesting that transcripts and minutes from the grand jury proceedings be made public.
In New York, as in all states that have grand juries, what happens during those proceedings are secret. The foundation for grand jury secrecy dates back to colonial-era England, as a means to protect the jurors and the accused against intimidation or harassment.
More Transparency, More Accountability
But Harvard Law School professor Ron Sullivan says that secrecy also prevents the defense from being able to present evidence to the jury, and blocks them from accessing critical information that only the prosecution knows—things that can hinder a fair trial.
“My personal view is that claims of secrecy are outdated, and an outmoded way of thinking about the grand jury. More information in criminal cases is more fair,” said Sullivan via a phone interview. He is also director of the Harvard Criminal Justice Institute.
The grand jury has failed to bring criminal charges against the officer. But if transcripts are made public in Garner’s case, Sullivan says “relevant information” could emerge for both the federal civil rights investigation and for Garner’s legal representatives, who are bringing a civil lawsuit against the city.
For example, details about NYPD officer training and tactics can shed light on whether the officer’s use-of-force was justified.
“A state actor” can be sued for depriving Garner of his Fourth Amendment right to be free from “unreasonable search and seizure,” said Sullivan.
The New York Civil Liberties Union has argued in their petition that the public has an interest in knowing the details of the Garner investigation, because the public’s confidence in the integrity of the legal system “has been severely shaken by the decision of the grand jury not to return an indictment in the Garner case, despite shocking and seemingly unambiguous video evidence that has made an indelible mark on the public consciousness.”
A judge is due to hear their arguments on Feb. 5, along with the other parties who have filed a petition—the city public advocate’s office, the Legal Aid Society, and the New York Post.
Comparison to Ferguson
In the case of Michael Brown, an unarmed teen who was shot and killed by a police officer in Ferguson, Mo., the local prosecutor released a large volume of records from the grand jury that declined to indict the officer. He reasoned that Missouri’s public records, or so-called “sunshine” law, allowed him to release them without seeking prior court approval.
“This is an aggressive and unique read of the FOI [Freedom of Information, another name for public records] laws,” said Sullivan.
In fact, sunshine laws typically do not apply to the judicial branch, according to legal expert Alan Morrison at the George Washington University Law School. These laws mostly emerged in the late 1960s and early 1970s to give the public access to records and meetings of the executive branch. Grand jury transcripts would not be considered a public record.
Move Toward Reform
Sullivan says that while there is now more public scrutiny of grand jury proceedings after Brown and Garner’s cases, there isn’t an active movement to open up grand jury proceedings.
In New York, Governor Andrew Cuomo has proposed reforming the grand jury process for police fatality cases where a non-indictment is delivered. The prosecutor would be given permission to release a public report on the proceedings. In addition, an independent monitor would be appointed to investigate the non-indictment.
