The “Secret Trial” of Garner’s Killer Remains Secret

Justice William Garnett heard argument for the disclosure of the grand jury minutes against Police Officer Daniel Pantaleo for the killing of Eric Garner and ruled. Did you know?  Do you still care?  Oh, it was so very hot at the moment, but that was months ago, an eternity. Has your attention waned and your interest focused on something else?

If not, or at least not totally, this was the ruling:

The prosecutor in the Brown case made public much of the information about the Ferguson grand jury. But on Staten Island, Justice William E. Garnett of State Supreme Court decided against the request for public disclosure sought by the New York Civil Liberties Union; the city’s public advocate, Letitia James; the National Association for the Advancement of Colored People; and The New York Post.

Justice Garnett sided with the Staten Island district attorney, Daniel M. Donovan Jr., who has fought the release of grand jury materials, arguing such disclosure would have a “chilling effect” on witnesses.

The Times’ characterization is a bit unfair.  The judge didn’t so much side with Donovan, as apply the law. The movants, seeking disclosure, just didn’t win.

In his decision, Justice Garnett’s reasoning reflected his line of questioning in the hearing when he asked what each party would do with the documents if released. Ultimately, he ruled, the parties seeking disclosure had failed to establish a “compelling and particularized need” to make the grand jury minutes public.

The parties, Justice Garnett wrote in his conclusion, “merely ask for disclosure for distribution to the public.”

“This request is not a legally cognizable reason for disclosure,” he continued. “What would they use the minutes for? The only answer which the court heard was the possibility of effecting legislative change. That proffered need is purely speculative and does not satisfy the requirements of the law.”

New York law provides for strict grand jury secrecy.  Many think that’s a bad policy. Others, not so much.  Those who seek transparency, at least for this case, sing an oft-heard refrain:

“But that presumption is not absolute,” Arthur Eisenberg, the legal director of the civil liberties group, said.

Yes, the “not absolute” argument rears its head whenever the law doesn’t permit things we want it to permit, based on the facts and circumstances of a particular case.  It would be nice if the law varied with sentiment, for us whenever we felt like it, but instead it’s made up only of words and phrases that are designed, to the extent laws are “designed” at all, to cover the full panoply of interests and concerns.  Some days, we end up on a side that the law doesn’t favor.

One of the parties’ chief complaints is that while for most felonies grand juries are swift, bare-bones proceedings, those involving police-related deaths can go on for weeks or months and take on the feel of a minitrial carried out behind closed doors.

This is where the issue of transparency, of public trials as the Constitution requires, comes into play.  Had the grand jury returned an indictment, the case would move forward toward trial.  Whatever happened in the grand jury wouldn’t matter. No one would care. It was just a brief way station on the path to resolution.  We moved past it.

“Secret grand juries are an anachronism,” [Garner family lawyer Jonathan Moore] said. “The judge has essentially sanctioned the use of a secret trial for a very public matter. If this was a normal grand jury process, they would have had an indictment in five minutes.”

Moore’s angst is understandable, but misdirected.  He’s quite right that had Richmond County District Attorney Daniel Donovan wanted an indictment, he “would have had an indictment in five minutes.”  But this was no “secret trial for a very public matter.” It was no trial at all. And that’s the point. There was no trial. There will be no trial.

The real purpose of this effort to breach the secrecy of the grand jury was to feed the amorphous “public right to know,” which is a right only in the sense that we’ve decided that we want it to be.  The law has never provided for a right to see into the grand jury, which is nothing more than a prosecutorial charging instrument whose original purpose was to protect citizens from the power of the State to charge at will.

The putative purpose of disclosure offered by the movants was so the grand jury proceedings here could be used for legislative change, a vague and unparticularized need.  There is no argument that can’t be made without disclosure, though disclosure might have offered a more colorful example to make the point.  Yet, the issues are well known and hardly need disclosure.

So what appears to be an absurd impropriety, the grand jury’s return of “no true bill” for Daniel Pantaleo in the killing of Eric Garner, will remain under wraps.  Don’t blame the grand jury. Don’t blame its secrecy, which does far more good than harm even if it seems to suck this time.

If you need someone to blame, he’s been right there in front of you the whole time.  The Staten Island DA, Donovan, had the opportunity to indict his ham sandwich and chose not to, and now fights to keep his dog and pony show private.  You have your answer, and Justice Garnett has ruled in accordance with law.

6 thoughts on “The “Secret Trial” of Garner’s Killer Remains Secret

  1. John Barleycorn

    Speaking of the weight of way stations and seeing how spring training for another season is already upon us again will this be the year the for the mother of all grand jury posts?

      1. John Barleycorn

        Why yes, yes you have. Particularly on this subject matter. Why do you think I have been hanging around for so long? Still waiting…

        P.S. What’s the use of keeping all those grand jury demons you have chained up inside of you, if you don’t eventually plan on setting them free or at the very least hold some sort of twisted exorcism on them?

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