Saturday, December 13, 2014
You may have heard that various entities, including the New York Civil Liberties Union, have moved to unseal the entire record of the Eric Garner grand jury proceedings. Here is a copy of the NYCLU's motion. So, what's the likelihood that the record will be unsealed?
N.Y. CPL Law Section 190.25(4)(a) provides that
Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order. Nothing contained herein shall prohibit a witness from disclosing his own testimony.
When someone files an order to show cause, requesting an order unsealing the grand jury record, the court has to weigh two presumptions under Section 190.25(4)(a). On the one hand, there is "a presumption of confidentiality attaches to the record of Grand Jury proceedings." People v. Fetcho, 676 N.Y.S.2d 106 (1998).
The Court of Appeals of New York has told New York courts to consider five factors before allowing the movant to rebut this presumption of confidentiality:
(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely. People v. Bonelli, 36 Misc.3d 625, 627-28 (2012).
(1) is inapplicable because the defendant wasn't indicted. (2) is inapplicable because the grand jury already chose not to indict. (3) is inapplicable because, again, there was no indictment. And (5) is also inapplicable because the grand jury is done and there's not going to be a trial. The big question regards (4), but the case is already so public and anyone who wants can see the video of the death of Eric Garner. This is not a case of a grand jury failing to indict a defendant who wouldn't be known unless the grand jury proceedings are made public.
This presumption of confidentiality is then balanced against "a presumption of public access to judicial documents which 'exists, in part, because public monitoring of the courts is an essential feature of democrative control and accountability.'" People v. Cipolla, 184 Misc.2d 880, 881 (2000).
The NYCLU's motion cited to Cipolla, and that case is the case to which it is likely pinning its hopes. In Cipolla, Cipolla and Martin were indicted, charged, and eventually acquitted at trial. They thereafter brought a federal action against certain officials for alleged corruption in the grand jury process. One of the officials who was sued "brought an order to show cause unsealing the grand jury record..., contending that he could not properly defend himself in the federal lawsuit without access to the grand jury record." The court granted the order.
Troy Publishing Co., Inc., publisher of the newspaper The Record, thereafter brought its own order to show cause unsealing the grand jury record. In looking at the five factors is favor of confidentiality referenced above, the court found that
Most of the factors in favor of confidentiality of grand jury minutes relate to pending trials and are therefore inapplicable here....The only one applicable to the case at bar is the "assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely."
This is similar to the Eric Garner case, except that, in the Garner case, a federal case is merely a possibility and not a certainty.
Then, in regard to the presumption of public access, the court concluded that
the integrity of the grand jury system as well as county government is at question. The accusations in the federal action go to the heart of the grand jury process and county government and disclosure to the public in order to maintain the integrity of the grand jury process and county government creates a compelling interest for disclosure.
The NYCLU claims that the Eric Garner case is also a case that goes to the integrity of the grand jury system. That integrity, however, does not relate to overt corruption but instead to the way that police cases, and especially those involving minority victims, are presented to grand juries. Will that be enough for the court to grant the order to show cause? Possibly.