Information about the grand jury that decided not to bring charges against a police officer in the chokehold death of Eric Garner was “cherry-picked” by a district attorney facing public scrutiny over the case, petitioners told an appeals court on Tuesday.
Attorneys asking for a complete public accounting of the case – basics have been disclosed, evidence has not – asked a panel of four justices at the New York State supreme court’s appellate division to reverse a decision that the grand jury details should not be released.
“Secrecy only reinforces suspicion, and there is deep suspicion here in the communities of color and others,” said James Meyerson, an attorney representing the NAACP, which joined the New York Civil Liberties Union, the Legal Aid Society and the office of New York City public advocate Letitia James in seeking full disclosure.
After a grand jury decided in December not to indict New York police officer Daniel Pantaleo, the office of Richmond County district attorney appealed to a judge to release limited information about the Garner grand jury.
Stephen J Rooney, a justice on Richmond County’s supreme court, did allow some basic information about the usually secret process to be made public, including how long the grand jury sat (nine weeks), how many witnesses were called (50) how many exhibits were shown (60). However, the transcripts, testimony and evidence against the officer in the unarmed man’s death remain sealed.
Disclosure is opposed by the district attorney’s office, which argued that releasing the grand jury record would not lead to new answers, and would have a “chilling effect” on witnesses, who are promised anonymity, and even prosecutors, who might feel pressure from the public to deliver a certain result if secrecy was no longer sacrosanct.
“Perhaps less disclosure on that day would have been better,” said Anne Grady, an assistant district attorney for Richmond County, which encompasses Staten Island, where Garner lived and died.
At one point during the hearing, Justice Leonard Austin asked if the decision to release some information meant the cat was “already out of the bag”.
The assistant DA said she disagreed with that characterization. “Further disclosure will only raise more questions,” she said.
She added: “The intense public scrutiny should not result in disclosure but even more zealous protection.”
New York state law rigorously protects the secrecy of grand jury evidence, and as such lawyers face a high bar in convincing the panel to allow the disclosure of evidence.
The justices, however, appeared also to question the petitioners’ motivations for wanting the record released. As each petitioner took their turn at the lectern, a justice asked them to clarify the “compelling and particularized” need for disclosure, which is the standard to override secrecy considerations.
Garner, 43, died on 17 July after New York police officer Daniel Pantaleo placed him in a chokehold while he and other officers attempted to take him into custody on suspicion of selling untaxed cigarettes. The confrontation on Staten Island was caught on videotape that went viral, and shows Pantaleo with his arm around Garner’s neck while he gasps repeatedly, “I can’t breathe.”
The grand jury’s decision not to indict Pantaleo in Garner’s death, just days after a grand jury in Ferguson, Missouri, declined to charge an officer who fatally shot unarmed black teenager Michael Brown, inspired widespread protests in New York and around the country.
In March, Justice William E Garnett rejected their argument, failed to establish a “compelling or particularized need” to warrant public disclosure of the grand jury record.
Grady cited the rare and controversial decision by a district attorney in Ferguson to release his grand jury as an example of why testimony from the Garner grand jury should not be released. She argued in a court filing that the move directly led to the death of a witness who had been called to testify – though this link been widely questioned.
Meyerson, for the NAACP countered that what happened in Ferguson should be considered, if only to show that the release of the grand jury minutes does not interfere with a federal investigation and shouldn’t preclude disclosure in the Garner case.
Attorneys pressing for disclosure also argued that releasing the grand jury record would help restore public confidence in the criminal justice system, and affect proposed legislative changes and procedural reforms.
“The secrecy that is shielding the grand jury from any kind of disclosure of accountability with the public is simply heightening the suspicions that many New Yorkers have both of the police department and of the grand jury system,” Donna Lieberman, executive director of the New York Civil Liberties Union, told reporters after the hearing.
