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N.Y.'s Top Judge Calls for Grand Jury Reform

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By Mark Wilson, Esq. on February 26, 2015 12:56 PM

Following the Eric Garner and Michael Brown grand jury non-indictments, many of us wondered why grand juries are still hanging around. The Constitution requires only that the federal government use grand juries to indict criminal suspects, and yet 23 states still require the use of these bodies for serious felonies.

The problem is that grand juries are secretive (intentionally so) and not subject to the same protections as, say, preliminary hearings, like the right to counsel and the right to cross-examine witnesses. One prominent jurist wants to change that.

Reform the Grand Jury System

In his State of the Judiciary report last week, the Chief Judge of the New York Court of Appeals, Jonathan Lippman, express his concern that "prosecutors' offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters."

There's no better way to say that about the non-indictment in Ferguson, Missouri, where transcripts revealed that District Attorney Bob McCulloch seemed confused about his role; he acted as though he were the attorney for putative defendant Darren Wilson, not a representative of the state zealously advocating for enforcement of its laws.

But, as Lippman points out, prosecutors are criticized from the other side for manipulating the grand jury process to get an indictment all too easily. Lippman's predecessor as Chief Judge, Sol Wachtler, reportedly coined the expression that prosecutors could get grand juries to "indict a ham sandwich."

Judicial Oversight + Transparency = Great Idea

Lippman can't do much, but he's going to do what he can to reform the grand jury system in New York however he can, starting with the locus of its current controversy: police shootings. Lippman announced that he would be submitting legislation requiring the presence of a judge at grand jury proceedings involving accusations of civilian homicide by police. The judge would take a far more active role in the proceedings, which places "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."

He's also addressing the problem of grand jury secrecy by creating "a crystal clear statutory presumption in favor of the court disclosing the records of a grand jury proceeding that has resulted in no charges" when the grand jury proceeding is one of public interest and basically even knows who's being indicted (or not).

Secrecy has been a big concern in the Eric Garner case. While McCulloch, the District Attorney in Ferguson, released transcripts of the grand jury testimony there, no such material appears to be forthcoming in the case of the Staten Island man who died after being placed in a choke-hold by a police officer. The District Attorney there, Daniel Donovan, is under no obligation to disclose the transcripts and apparently won't be doing so any time soon.

It's a big deal for the state's top judge to criticize one of the underpinnings of the criminal justice system, and another still for him to introduce legislation to modify it. Let's hope that Lippman actually achieves the goals he wants to.

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