Grand Jury Secrecy In The Court of Public Opinion

Oral argument on a motion to release the grand jury transcript in the Eric Garner killing was held in Staten Island.

Christopher Pisciotta, an attorney for the Legal Aid Society, argued to Justice William Garnett that the “public questioned the fairness” of the way evidence was presented to the grand jury by the office of Staten Island District Attorney Daniel Donovan. In early December, the grand jury declined to indict New York City Police Department Officer Daniel Pantaleo in Garner’s death — a decision that sparked protests across the city and the country.

New York City’s Public Advocate, Letitia James, joined in the motion.

Matthew Brinckerhoff, the lawyer representing James, argued that the records were essential for lawmakers across the state seeking broader reforms to the grand jury system, which has come under scrutiny since the decision not to indict Pantaleo. “This case has been the catalyst for widespread discussions of reform,” Brinckerhoff said.

Transparency is a virtue in itself, at least from the perspective of those who want to know but are denied that ability because of secrecy laws.  It would seem that this argument should be a slam dunk, an instance where everyone, except perhaps Staten Island District Attorney Daniel Donovan and Garner’s killer, Police Officer Daniel Pantaleo, would favor the public release of the grand jury minutes.  Truth and all. What’s not to like?

In a curious twist, one person arguing against the disclosure is Elie Mystal at ATL Redline.

Trust me, I get it. We all saw a man choked to death in the street in broad daylight. We all saw the police officers who killed him escape even a criminal trial to asses their potential wrongdoing. Eric Garner’s actions, or inactions, have been fully tried in the press. Daniel Pantaleo, the officer who administered the fatal choke-hold, was not tried. Danial Donovan, the district attorney who failed to get an indictment, has not been scrutinized.

Starting with a bit of Gertruding, Elie goes on:

The request should not be granted. Don’t get me wrong, I’m convinced that Donovan did everything he could to avoid an indictment. You think a guy running for Congress wants to be trying a police officer during his campaign? No. Donovan wanted no piece of this and got what he wanted. The transcripts might well expose all of the sniveling tactics Donovan used as a prosecutor to get a cop off.

And then what? We would gain what exactly from that? More people would agree that this was a travesty of justice? Is there a prize for that?

There might be a prize for that, such as the creation of a special prosecutor law that enables the conflict-free prosecution without being Maurice Nadjari-ed.  There might be another prize for that, such as widespread recognition that the grand jury process is only as good as the effort put into obtaining an indictment by a prosecutor, and that they don’t indict cops because they sabotage their own presentation to make sure no true bill is returned.

Not exactly a red balloon, but as prizes go, not too shabby.

But Elie finally finds his lede:

Remember, most people who have already decided that the cops were right to choke that big guy to death will still think that regardless of what they read in the testimony. Hell, most people won’t even read it, they’ll just take the word of whoever summarizes it on their favorite partisan news channel. In the Ferguson grand jury testimony, Officer Darren Wilson revealed that instead of reasonably assessing the situation he decided that Michael Brown was a demon. Ferguson D.A. Robert McCulloch went on record to say that he put witnesses on the stand that he knew were lying. Did any of that change anybody’s mind? If anything people’s opinions of Ferguson have become more entrenched.

Nobody cares about facts except as they support the conclusions they’ve already reached.

This has become something of a “life rule” in law, that our aspirations of transparency not only fail, but despite the facts, tend to reinforce ignorance of the law as people back into their own corner with unshakeable certainty that they now know conclusively that their beliefs were right all along.  The scope and breadth of legal ignorance is breathtaking, as are the takeaways of transparency when seen through the eyes of partisans.

But then, anyone who gives a damn about Eric Garner’s death at the hands of Police Officer Daniel Pantaleo has already staked out a position. Reinforcing that position isn’t a good thing, but it also doesn’t change much of anything.  There may be no up side to revealing the grand jury transcript as far as informing the public, but is there a downside?

Grand juries aren’t about truth, they are about giving prosecutors leverage to force a defendant into a settlement on crimes they may or may not have committed.

You want to set a precedent where you make that kind of crap public? Are you insane? You want to give prosecutors more power to sully the name of potentially innocent people as they preen for the cameras and try to do things like run for Congress? . . . The last thing we need to do is to take a grand jury system that isn’t even designed to be fair to the defendant and make it part of the public record.

While the public may have come to expect disclosure following the Michael Brown grand jury release in Ferguson, which didn’t work out very well for anyone and largely proves Elie’s point, that has led to an expectation in Richmond County that disclosure of secret grand jury proceedings are somehow necessary to restore public trust in the system.

And if disclosure is granted here, then the precedent grows and disclosure to feed the public’s appetite for sexy crime news will grow as well.  The public will start to expect and demand grand jury disclosure, as if they get a vote in what happens or that their approval matters.

Breaching the secrecy of grand jury proceedings is a double-edged sword. Sure, we want to know how Donovan sabotaged his presentment on Pantaleo, but what about the secrecy of high-profile cases where the one-sided revelation smears an innocent defendant to feed the public’s appetite for salacious news?  Bear in mind, this isn’t a trial where both sides get to present their case, but a proceeding where the DA gets to present anything he pleases; there is nothing fair about a grand jury presentment.

And the slide down the slippery slope of transparency is happening quickly here, with one disclosure in Ferguson, which did almost nothing to better inform the public, to an expectation that should make disclosure in Staten Island a gimme. If disclosure begins to feel normal, non-cop defendants stand to be far more at risk of harm than anyone else. There are a lot more of them, and they are often more hated than anyone else.

Elie’s got a point. Much as we may demand disclosure this time, we won’t be able to stop it next time when it isn’t a police officer at risk.  Be careful what you ask for, as you just may get it. It may not turn out to be as good an idea as it seemed when the court of public opinion passes judgment on others.

10 thoughts on “Grand Jury Secrecy In The Court of Public Opinion

  1. Hal

    Shouldn’t “asses” or “assess”? Don’t mean to be pedantic, but while the cops choking out someone who’s not resisting are clearly acting like asses, I think assess is what was meant.

  2. Tom

    It’s irrelevant, we’re already there anyway. How many times in a high profile case are there “leaks” from the prosecutors office or police officials who drop whatever salacious tidbits they want under the cover of an anonymous source to the press. We routinely hear about “the smear” tactic here, why should it only be when the prosecutor/police want to use it? An open grand jury system makes it a free-for-all for both sides where the prosecutors witnesses are going to be just as microscopically examined as the defendant is.

  3. Not Jim Ardis

    Perhaps a compromise to Grand Jury disclosure – the records get release if they involve police wrongdoing, but not in any other case.

    1. Chris Ryan

      I have two main issues with Grand Jury disclosures (even limited to just police wrong doing). The first is without the context of other cases that would be considered more mundane, there is nothing to compare it to. The behavior of the DA in one specific case (baring some really obvious issue) is not going to be apparent when taken in isolation.

      The second issue is the lack of a (seemingly) unbiased source to look to for an interpretation of the records that would be disclosed. The last thing we need is Grand Jury transcripts on Court TV (much less TMZ).

      I dont see any gain from releasing the records.

  4. Pingback: Why Are Grand Juries So Secret? - Windypundit

  5. Greg

    The conflict is evident when DAs are called on to prosecute the cops they work with. Perhaps there are other ways to make the GJ process more fair by reducing the duties of the DA
    For instance, how about providing an independent advisor to the GJ, instead of the DA. That atty could sit in during the presentation and when a juror has a legal question, the advisor, perhaps even outside the presence of the DA, would answer. This would remove a level of control that allows the DA to seem almost omnipotent to grand jurors. This would reduce the DA to an evidence presenter only.

    1. SHG Post author

      The conflict is evident when DAs are called on to prosecute the cops they work with.

      Ya think? Usually, I complain about non-lawyers posting ridiculously simplistic comments. Try to up your game, please.

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