by Billy Manes
Among many high profile incidents of police use of force is the death of Eric Garner on Staten Island last summer after he was put in a police chokehold. A grand jury was convened to decide whether to bring the officers involved to trial but the grand jury declined to indict. Several groups petitioned a New York trial court for access to these grand jury materials, including the New York Post, NYCLU, NAACP, the city's public advocate, and the Legal Aid Society.
As one might expect, the petition was denied. All but the New York Post have now filed an appeal of that decision. Because the Post decided not to join the appeal, there is no media party involved in the case at this point, which led to the decision by the Reporters Committee for Freedom of the Press to draft an amicus brief that was filed on behalf of almost 30 media companies and organizations, including AAN.
The brief makes three arguments in favor of access. First, disclosure of these materials will serve the public interest. There have been several racially charged incidents in the past year in which unarmed individuals have died at the hands of police officers. The public, while it doesn’t need to second guess the ultimate decision, should have the opportunity to understand how the case was presented to the grand jury. Disclosure to the public and the press will serve several purposes, including eliminating confusion and misinformation about the underlying events and the grand jury process, scrutinizing the behavior of the prosecutor (who is now a Member of Congress); informing ongoing discussions surrounding police reforms and reassuring the public that the court system is not concealing unpleasant truths under a veil of secrecy at the expense of the public interest. The first section of the brief discusses the many cases where press and public access to court proceedings have provided these benefits.
The second argument is that all of the above is true, to some extent, even where grand juries are involved. The proceedings of grand juries, while generally conducted in secret, are not absolutely secret; in many instances, including Ferguson, MO, prosecutors have chosen to proactively release grand jury information in order to benefit the public. The traditional reasons for grand jury secrecy don’t apply here. The investigation of this case is over. There has been no indictment and there is no concern that the defendant might flee. Nor is there likely to be harassment or threats of violence against witnesses, as no further grand jury proceedings are to be convened. Finally, the often-cited reason of assuring grand jury witnesses that their testimony will remain secret is a fallacy. There is no guarantee of secrecy, as records can often be released at various times; in fact certain statutes require release of grand jury testimony in certain situations.
Finally, we argue that access to these records does not have to be “all or nothing.” The court can review testimony and decide on a witness by witness, or even line by line basis, whether to release testimony while withholding particularly sensitive testimony. By the same vein, certain testimony carries more public interest than others. For instance, while the public has seen two videos involving the fatal chokehold applied to Mr. Garner, two others apparently were shown to the grand jury but never made public. They should be.
Even though this is a lower level state court case (where we usually don’t get involved), we believe that the issues presented here and the significant public interest in a matter of local policing merit our participation.