New York chief judge proposes major grand jury reforms

February 18, 2015 By Michael Virtanen Associated Press

Chief Judge Jonathan Lippman delivers his State of the Judiciary address at the Court of Appeals on Tuesday in Albany. Seated behind Lippman are Associate Judges Leslie Stein, Jenny Rivera, Susan Phillips Read,Eugene Pigott Jr., Sheila Abdus-Salaam and Eugene Fahey. AP Photo/Mike Groll

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ALBANY— Major grand jury reforms proposed Tuesday by New York’s chief judge include releasing records of closed-door proceedings when nobody is charged and direct judicial oversight when police are investigated for killings or serious assaults.

Chief Judge Jonathan Lippman’s proposed legislation follows protests last year after grand juries declined to indict police officers — one seen on video choking an unarmed Staten Island man who died and another who fatally shot an unarmed suspect in Missouri.

“Of immediate concern are the perceptions of some 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,” Lippman told a courtroom full of jurists and lawyers in his Law Day address Tuesday. “To me, it is obvious that we need significant change in grand jury practices and protocols in the world we live in today.”

The strict secrecy of grand jury proceedings dates from medieval England, meant to prevent tampering with investigations, keep investigation targets from fleeing, encourage reluctant witnesses and protect those not charged, Lippman said. But in cases of major public interest, that secrecy “significantly impedes” public understanding of the court process.

Gov. Andrew Cuomo and Attorney General Eric Schneiderman have proposed appointing special prosecutors to handle those police cases.

Lippman’s legislation instead would have a judge preside inside the grand jury room considering charges against a police officer for homicide, felony assault or strangulation. The judge would provide legal instructions to jurors and determine whether evidence is sufficient to support the charges or lesser offenses.

Now judges only provide preliminary instructions to grand jurors and occasionally rule on contested legal issues. Typically the prosecutor, jurors, stenographer and one witness are in the room, with the prosecutor answering jurors’ questions about the law.

“This puts the ultimate responsibility for the grand jury where it belongs — with the court,” Lippman said, adding he believes New York would be the first state to do this.

Lippman also proposed a second provision to open grand jury records in cases where there’s no indictment and where disclosure would advance “a significant public interest.” It would apply to cases where the person investigated is already known publicly or consents. Released documents would contain the charges submitted, legal instructions to the grand jury and testimony of all public officials and possibly other witnesses.

The prosecutor could redact testimony that would identify a civilian witness and seek court orders to prevent disclosures that would jeopardize an ongoing investigation or the safety of any witness or juror.

Brooklyn Law School professor Bennett Capers said disclosure happened after the Ferguson, Missouri, shooting and gave the public a more complete picture than media sound bites. He recalled that federal prosecutors in Manhattan got tens of thousands of grand jury indictments in the decade he worked there and only once got no indictment, such a big deal they had to advise Washington.

Lippman’s proposal to put a judge in the grand jury room is radical because it’s so different from the long-standing practice in federal and state courts, but it’s also fairly modest, requiring no major restructuring of the grand jury process, Capers said.

“It’s hard to picture downsides. The upside is it gives the public some kind of assurance the game is not rigged,” he said.

Melissa DeRosa, spokeswoman for Cuomo, said he proposed a series of grand jury reforms last month aimed at ensuring perceived and actual justice, and they’ll work with everyone who shares those goals.