N.Y. appellate court refuses to order release of Eric Garner grand jury materials

|The Volokh Conspiracy |

A protest in Atlanta in December against the decision of a grand jury not to indict a police officer involved in the death of Eric Garner. (ERIK S. LESSER/European Pressphoto Agency)

From today's decision in In re James v. Donovan:

These appeals arise out of the death of Eric Garner on July 17, 2014, and a grand jury's decision not to return an indictment against the target or targets of its investigation. After impaneling a grand jury to hear evidence concerning the circumstances of Garner's death, the District Attorney of Richmond County . . . petitioned the [trial court], and was granted permission, to disclose to the public limited information regarding the nature and scope of the grand jury proceedings. The District Attorney did not seek, at that time, the disclosure of any grand jury testimony or exhibits.

The [trial court] permitted disclosure regarding the period of time during which the grand jury sat, the number and types of witnesses who testified, and the number and types of exhibits admitted into evidence. The [trial court] also disclosed the relevant principles of law on which the grand jurors were instructed, and that the grand jury, in conformity with CPL 190.60 and 190.75, voted to file its findings of dismissal. Rather than quelling public debate about the grand jury proceedings, the limited disclosure instead engendered a call for full disclosure of the minutes of the grand jury's proceedings, and the exhibits and instructions provided to the grand jury.

These appeals involve the subsequent petitions filed by Letitia James, as Public Advocate for the City of New York (hereinafter the Public Advocate), the Legal Aid Society, the New York Civil Liberties Union, and [branches of the NAACP], . . . to unseal and release the grand jury minutes to themselves and to the general public, including transcripts of testimony, exhibits, information about certain grand jurors, and legal instructions. Each of these petitioners seeks disclosure for the purpose of understanding the grand jury's decision to not return an indictment, promoting transparency in the grand jury process, restoring confidence in the criminal justice system, and engaging in meaningful discussions about reform of the grand jury process and police practices. Certain petitioners proposed limiting the scope of the materials disclosed to the public and redacting any names of, and identifying information about, the witnesses and grand jurors. . . .

"[T]he primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution." "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." . . . So strong are the principles of grand jury secrecy and the policies underlying it that unauthorized disclosure of grand jury evidence is a felony in New York. While "secrecy of grand jury minutes is not absolute," "a presumption of confidentiality attaches to the record of Grand Jury proceedings."

The legal standard that must initially be applied to petitions seeking the disclosure of grand jury materials is whether the party seeking disclosure can establish a "compelling and particularized need" for access to them. Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure. . . .

A party seeking disclosure will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding "to advance the actions or measures taken, or proposed (e.g. legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served." . . .

Despite the intense public interest in this case, which this Court recognizes, the [trial court] properly determined that the appellants' reasons do not constitute a compelling and particularized need for disclosure of the requested grand jury material.

While many of the foregoing decisional authorities could be discussed in detail as controlling precedent, the Matter of Hynes case merits particular note. Matter of Hynes arose out of a well-publicized and highly charged incident in 1991 in Crown Heights, Brooklyn, when a vehicle struck and killed a seven-year-old child. A grand jury declined to indict the driver for any crime, which added considerably to community unrest over the incident. The District Attorney of Kings County sought to release the grand jury's minutes and records to quell the unrest, and to restore confidence in the grand jury system generally and in his office specifically.

This Court upheld the [trial court]'s denial of the requested disclosure, finding that curbing community unrest and restoring faith in courts and prosecutors did not represent a compelling and particularized need, as is necessary to overcome the presumption of confidentially attached to grand jury proceedings. The similarities between the circumstances of Matter of Hynes and those presented here are striking. Although the target of the grand jury proceedings in Matter of Hynes was a civilian, and the targets here are public servants, we find that distinction to be without a difference to the resolution of this case.

In addition, the appellants have failed to demonstrate that relevant information cannot be obtained from sources other than the grand jury minutes to permit lawmakers to fashion legislation, if appropriate, concerning reform of the grand jury process and police practices. These sources may include, but are not necessarily limited to, reports and records of news media, and the City's Department of Investigation, Civilian Complaint Review Board, Police Department, and Law Department.

The appellants' argument that there is a compelling and particularized need for disclosing the grand jury materials in order to help shape legislative debate at the State Capitol for potential grand jury reform is unpersuasive. The appellants failed to establish how or in what manner these grand jury materials would inform legislative debate beyond the facts that are already publicly known of the case, and beyond reform proposals that are already being discussed on their own merits.

The [trial court] also properly determined that the Legal Aid Society failed to demonstrate a compelling and particularized need for access to the grand jury minutes for the purpose of ensuring better representation of its current and future clients. The Legal Aid Society did not indicate with any degree of specificity how the minutes or exhibits in this isolated case are necessary to that effort.

Moreover, contrary to the appellants' contentions, the instructions given to the grand jury are entitled to a presumption of confidentiality, since CPL 190.25(4) affords protection to all "matter attending a grand jury proceeding" including records that were not even entered into evidence before the grand jury. Similarly, there is no support for the conclusory contention of the Legal Aid Society and the N.A.A.C.P. petitioners that noncivilian witnesses, namely, police officers and emergency medical technicians, have no expectation of privacy in their grand jury testimony, or that they are not entitled to the same legal protections as civilian witnesses. Accordingly, the appellants failed to show a compelling and particularized need for disclosure.

Although the appellants failed to make the requisite initial showing, because of the importance of this matter, this Court will reach the issue of whether "the public's right to know overrides such factors as the chilling effect disclosure might have on future Grand Jury investigations of this nature." The [trial court] properly determined that the public interest in disclosure was outweighed by the dangers inherent in violating the secrecy of the grand jury proceeding.

The most frequently mentioned purposes or rationales for preserving grand jury secrecy include: "(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."

It is true that most of [these] factors . . . are not implicated here in light of the fact that the grand jury declined to return an indictment, and that the identities of the target, as well as of certain witnesses who testified before the grand jury, are already publicly known. However, ensuring the independence of the grand jury, preventing the very real or potential danger that disclosure might present to the physical safety of the grand jurors and witnesses, and protecting them from public scrutiny and criticism, all militate in favor of maintaining grand jury secrecy.

Indeed, if pre-indictment proceedings were made public, especially in high profile cases such as this, "[f]ear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties." We note that in this particular instance, there is reportedly an ongoing federal investigation into the circumstances of the death of Eric Garner, and the disclosure of grand jury minutes here could negatively interfere with the investigative efforts of the United States Department of Justice and the willingness of witnesses to cooperate with those efforts.

Although the appellants suggest that redacting certain information will cure the impact of disclosure on the grand jury witnesses and jurors by narrowing the scope of certain materials disclosed to the public, under the circumstances of this case, redactions would not serve the purpose of preserving the witnesses' anonymity and thereby protect them from public criticism and scrutiny. Indeed, the earlier widespread dissemination of two videos capturing the incident would facilitate efforts by the media and the public to identify the source of any testimony disclosed. . . .