Chief Judge Lippman’s Solution

In his 2015 State of the Judiciary message, New York’s Chief Judge Jonathan Lippman offered two proposals to address the public’s manifest lack of confidence in the grand jury system when it comes to crimes committed by police officers following the “no true bill” in the killing of Eric Garner.

From the Democrat & Chronicle:

In his annual state of the judiciary address Tuesday, Chief Judge Jonathan Lippman proposed two major changes dealing with grand juries, including a bill that would allow courts to release transcripts and documents from the closed-door proceedings if the grand jury does not choose to indict.

He also called for having a judge present for the entire grand jury process if it stems from a violent incident between civilians and police.

It’s a curious reaction, in the face of many calling for the reinstitution of a special prosecutor to alleviate the conflict of interest of a county prosecutor dealing with the same police he relies upon to do his job.

Notably, New York State Attorney General Eric Schneiderman has proposed that his officer fulfill the special prosecutor role when it comes to police killings, which Judge Lippman did not endorse.

“Requiring an active, physical judicial presence in grand jury proceedings investigating potential homicide or serious assault arising out of a police-civilian encounter and ending grand jury secrecy as we know it will enhance public access to and confidence in the judicial system,” Lippman said in the Court of Appeals in Albany.

This raises numerous questions. First, that this will require a significant dedication of judicial manpower, and as anyone who practices in the Bronx will tell you, there aren’t a bunch of judges sitting around doing nothing.

Second, what exactly would the judge’s role be in the grand jury?

He suggested that judges be physically present in grand jury rooms in cases of homicide or felony assault of civilians involving the police: making legal rulings, questioning witnesses and rejecting “inadmissible evidence or improper questions.” A judge would also be required to “provide final legal instructions before the grand jury deliberates.”

“This puts the ultimate responsibility for the grand jury where it belongs — with the court,” he said.

It’s not an adversarial proceeding. There’s nothing to rule on. Would the judge be expected to insert himself into the presentment process, as if he was a pseudo-defense lawyer?  How would the judge know what was good or bad, right or wrong, without knowing the case and what was omitted or misrepresented?

Unlike trial, hearsay is admissible before the grand jury, and the burden of proof, light as it may be, hardly requires heavy lifting by a judge if the prosecutor chooses to put in the evidence to get an indictment. And if the prosecutor decides to sabotage the presentment by leaving evidence out, what would a judge be able to do about it?

As for disclosing the grand jury proceeding in the event of no indictment, recognizing that this would only apply to presentments involving police shootings (and, Judge, please remember that police are civilians; we’re not different species), this would seem great when the outcome is controversial, but what about cases where the cop isn’t a bad guy?

Is it right to smear the cop after a “no true bill” with all the bad stuff said about him, despite the fact that he’s innocent?  Remember, even cops get the presumption of innocence, and sometimes they aren’t crazed killers but just people with shields and guns.

Moreover, the constitutionality of having separate rules for the grand jury when the target is a cop rather than a non-cop is dubious.  Theoretically, every target is the same before the grand jury, and once we start distinguishing targets we love from targets we hate, we open the door to huge equal protection problems.

Not only does this have the potential to backfire in the future, once we breach the wall of protecting everyone to limiting the protection for a disfavored class, but even cops deserve to be treated fairly in the grand jury.  I see your eye twitching, but being fair means being fair to all.

Naturally, when an issue is raised that involves the police, the obligatory comment from embattled PBA Boss Pat Lynch appears in the New York Times:

“Judges already have a duty and responsibility to review all aspects of grand jury investigations, including instructions for deliberations given by prosecutors,” said Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, who called Judge Lippman’s proposals unnecessary. “The rule of law should apply evenly and fairly to all without exception. There should not be a separate system of justice for police officers.”

Amazingly, Lynch is right for once, that the law should “apply evenly and fairly to all without exception.”  This strikes me as one of those instances where he should be careful what he asks for, as he just might get it.

And if this was the case, then officers Darren Wilson and Daniel Pantaleo would have been indicted in a flash, and there would be no reason for Judge Lippman to seek changes in the grand jury process for police officers.  Then there would be the indictments of police officers for perjury. Then there would be the dismissals of prosecutions against citizens due to violations of their constitutional rights. Then there would be no “police officers’ bill of rights.”

And guys like Lynch would be shrieking about the unfairness of the proposed law in Arizona to conceal the names of police officers who shoot people for 90 days, as a “cooling off” period, unless the same law applied to everyone else.  Yeah, Lynch nails it.  It’s time to give him what he wants.




15 thoughts on “Chief Judge Lippman’s Solution

  1. Dave

    You have it all wrong. PBA Boss Lynch is just saying that everyone is equally able to go to the police academy and earn that badge and shield so it really isn’t discrimination at all to give police special rights and privileges, because they are available to everyone. You just need to become a police officer. Sort of like that old quote that the law, in its infinite majesty, makes it illegal for rich and poor alike to sleep under bridges and steal bread.

  2. onlymom

    I think a lot of the problems could be solved by fixing this problem!

    “Unlike trial, hearsay is admissible before the grand jury, and the burden of proof, light as it may be, hardly requires heavy lifting by a judge if the prosecutor chooses to put in the evidence to get an indictment. ”

    Seems to me if the so-called evidence can’t or won’t be admitted at trial. it has no business in the grand jury either. So a judges participation covering evidence presented could be a good one.

    1. SHG Post author

      You’re connecting two unconnected things: having judge participate in the grand jury proceedings does not change either the evidence permitted or the burden of proof. And if they were to change the evidence permitted only for cops, it would make it harder to obtain an indictment, not easier. Was that what you were hoping to accomplish?

      1. onlymom

        no what I am saying is that if the DA is using hearsay testimony or evidence he/she knows very well will never be admitted at trial they have no business using it in the grand jury. The judge would be there to stop the DA from using junk or illegal evidence or hiding evidence since these are a DA only run presentation I think they should be required to so any and all evidence most especially that will be used to the judge. Sorry I know the lawyers will hate it most certainly the DAs but sorry if you can’t use it at trial you have no business using it anywhere.

        also I am not just talking about cases that involve cops. the DAs have been having it their own way for far too long. Time a Judge was there for all cases to rule on the evidence. Would help clean out the junk cases before they ever get started if the Judge could look at ALL the evidence in the case at that point and can the ones that have crap for evidence. I mean come on if the DA can’t convince a Judge that he has something when he’s the only one presenting anything. What are his chances in a Court Room.

        1. SHG Post author

          An indictment is part of the charging process, and the reason hearsay is allowed is to avoid having to bring in 20 witnesses to make a pretty basic point. If they had to produce admissible evidence instead, it would jam up presentments, cost a fortune and take forever, while people sat in jail awaiting the outcome. It’s a much more complicated issue than it seems.

  3. John Barleycorn

    I am beginning to think the mother of all grand jury posts is still awaiting immaculate conception via the evil genius and the womb of rhetoric.

    In the meantime I wonder if I should, for gambling purposes, start plugging in the odds of this post already circulating publishers desks in book form vs. it gleefully collecting dust on a hard drive in an attic bunker awaiting the great asteroid panic of 2020?

    It’s out there, somewhere…

  4. Jim Majkowski

    To (badly) paraphrase Santayana, those who don’t read Mencken are doomed to show how perceptive he was.

      1. Jim Majkowski

        Thanks for giving me a big smile. You know I’m going to show everyone who’ll stand still for it.

  5. onlymom

    as for this!

    “it would jam up presentments, cost a fortune and take forever, while people sat in jail awaiting the outcome. It’s a much more complicated issue than it seems.”

    ah the poor DA’s you mean they might have to get off their asses and actually only take real cases for real crimes for which they have real evidence.

    not “I think” “I’m pretty sure” or the ever popular “he says he heard someone else talk about so and so”.

    the poor babies.

    1. SHG Post author

      Ah, nuts. You were doing pretty well for a while, and now you’ve gone and jumped the shark. It’s not about the poor DA’s, but about everyone. Well, it’s been fun posting your comments, but back you go into the darkness.

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