NYC lawyer group critical of Criminal Justice Reform Act

March 27, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle

Gov. Andrew Cuomo. AP Photo/Mike Groll

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The New York City Bar Association (NYCBA) wants to send state criminal justice reform efforts back to the drawing board. On Monday, the lawyers’ group issued its public comments on Gov. Andrew Cuomo’s Criminal Justice Reform Act of 2015.

In general, the NYCBA agreed with Cuomo on the need for criminal justice reform but were critical of the specific reform initiatives — in particular, efforts to reform the grand jury process.

“[W]e believe that the proposed reforms would not achieve the Act’s intended goals and therefore require further study in order to be effective,” the NYCBA concluded in its report on the Act.

The report was based on input from six NYCBA committees including Criminal Advocacy, Criminal Law, Criminal Courts, Criminal Justice Operations, Civil Rights and New York City Affairs.

Cuomo announced his plan to reform aspects of New York’s criminal justice system during his State of the State address this past January.

The plan identifies seven areas of proposed change including creating a governor-appointed independent monitor to review grand jury investigations. If Cuomo’s proposal is passed, a monitor would review cases where police officers are involved in an unarmed civilian’s death and additional provisions would mandate grand jury reports in certain police cases.

Cuomo’s proposal would also expedite the appeals process for defendants seeking a change of venue; require mandatory reporting by all law enforcement agencies to the Division of Criminal Justice Services; limit witness immunity in grand jury testimony; increase the amount of information included in all search warrant applications; and create a statewide “use of force” policy as a model for statewide law enforcement agencies.

These proposals, Cuomo suggested, would help restore a dwindling public trust in the justice system.

“The promise of equal justice is a New York promise, and it is an American promise. We are currently in the midst of a national problem where people are questioning our justice system,” Cuomo said in his January address, alluding to controversies surrounding the police-involved deaths of Brooklyn man Akai Gurley and Staten Island resident Eric Garner — both of whom were unarmed.

In Garner’s case, a grand jury voted not to indictment the officer involved, Daniel Pantaleo. In the Gurley case, a Brooklyn grand jury did vote to indict the officer involved, Peter Liang, on charges of manslaughter, negligent homicide and official misconduct.

“I think the key is, we need to reform the process. The grand jury process in the Brown and Garner cases did not work because of the way the prosecutors managed the process,” said Marc Morial, president of the National Urban League in a December 2014 interview with theroot.com.

Cuomo also echoed questions voiced citywide and nationwide.

“And they’re questioning whether the justice system really is fairness for all. And whether the justice system really is colorblind. And that’s not just New York — it’s a problem all across the country,” Cuomo said in his state address.

In a June 2014 Pew Research study, only 23 percent of those polled expressed a great deal or a quite a lot of support for America’s criminal justice system — a 5-point drop from a year prior.

“I think these seven points will go a long way toward restoring trust, restoring respect, both ways, from the police to the communities, and from the community to the police. Let’s start now,” Cuomo said of his proposal.

Special Prosecutors and Independent Monitors ‘Too Cumbersome’

In its critique of the Act, the NYCBA specially expressed opposition to Cuomo’s proposal for an independent monitor for local police-involved deaths of unarmed civilians.

Cuomo’s proposal would allow a governor-appointed monitor to review grand jury investigations related to police killings, and the appointed monitor would be expected to refer cases where a special prosecutor would be most appropriate or where there is a worry that a local prosecutor may be biased in favor of the police.

New York Attorney General Eric Schneiderman asked that Cuomo temporarily appoint him as a special prosecutor in those instances to avoid a suspected conflict. In a December 2014 MSNBC column, NYC Public Advocate Letitia James provided a reason for the concern, writing “[o]ur justice system allows district attorneys to be charged with the great responsibility of prosecuting the very same police officers they work side-by-side with every day and whose union support they seek when running for re-election.”

The NYCBA did not, however, focus on the motives behind Cuomo’s proposal for an independent monitor. In fact, the group was unable to reach a consensus as to “whether a special prosecutor is necessarily the best way to proceed…”

Instead, the lawyers’ group found the procedure for appointing a monitor and ultimately a special prosecutor in certain local cases “logistically problematic and inadequate.”

As described by the NYCBA, the independent monitor would review grand jury investigations of certain officer-related cases and will have the power to recommend cases for the appointment of a special prosecutor — primarily in cases where the monitor believes the grand jury did not follow the law or where there is suspicion that the local DA improperly declined to prosecute. The two-step process, the group noted, “is an after-the-fact solution that is too cumbersome and distant from the time of the grand jury presentation to of real value.”

The monitor does not appear to have the authority to do an independent investigation, and the NYCBA report expressed concerns that the monitor will base its determination on witnesses and evidence chosen by the prosecutor.

“It is likely that the independent monitor’s report will be little more than a justification for the actions taken by the prosecutor,” the report suspected.

Additional areas of concern regarding special prosecutors, the NYCBA expressed, included “public accountability of special prosecutors generally” and the need for special prosecutors at all.

“The committees did not have a consensus as to whether a special prosecutor is necessarily the best way to proceed….[but] did, however, express a consensus view that the question of a special prosecutors is one worthy of further exploration…” the NYCBA report concluded.

Can Releasing Grand Jury Reports Creates Public Distrust?

Advocates for grand jury reform argue that it is in the public’s interest to release grand jury records when an officer is not indicted in excessive force cases.

But the NYCBA says creation and specific labeling of a DA grand jury report would cause unnecessary confusion and further facilitate public distrust of the criminal justice system.

“Additionally, by calling these DA ‘grand jury reports,’ the possibility of public misunderstanding may be enhanced, since such reports would not come from the grand jurors themselves but from the very DA whose motives will be at issue and therefore still subject to public skepticism,” the NYCBA noted.

Last week, a Staten Island judge denied requests to unseal the Garner grand jury records, noting that public interest groups failed to provide a “compelling and particularized need” for their disclosure. The groups have said they will appeal.

In response to Cuomo’s desire for greater law enforcement reporting, the NYCBA recommends the legislature better define the specific instances when reports should be generated to “ensure proper reporting.”

The group remained “generally supportive and [did] not object to the remaining sections of the Act.”

Brooklyn District Attorney Ken Thompson has also spoken out against efforts for supervision of local DAs in police cases, calling special prosecutors an “unworkable” option. In a December interview with WNYC’s Brian Lehrer, Thompson asked rhetorically, “If there’s a shooting up in Buffalo, N.Y., a young unarmed guy is killed by the police up there, a special prosecutor is supposed to swoop down and deal with it, but what happens if something breaks out in Brooklyn a week later and it breaks in Syracuse — how is this person supposed to tell the folks up in Buffalo, ‘Hold on, I’ll be back, I’ve gotta go to Brooklyn?’”

A spokesman for the Brooklyn Bar Association told the Eagle that the BBA “has not reviewed, nor taken a position on this proposed Act.”

-The Eagle reached to Gov. Cuomo’s Office, but did not receive a response as of press time.