More than six months after the death of Eric Garner during an encounter with police, a court hearing on Thursday will weigh the release of secret documents and transcripts produced by a grand jury that decided not to indict anyone in the case. The public release of grand jury testimony is highly unusual, and there’s still no easy answer about when the normally secret information should be unsealed.
Garner died on July 17, 2014, after a New York City police officer, Daniel Pantaleo, used a chokehold and then restrained him facedown on a Staten Island sidewalk with help from four other officers. Garner was declared dead on arrival at a hospital an hour later, and a video of the incident sparked protests across the country. A grand jury called by Staten Island’s district attorney started reviewing evidence in August. By December, when the jurors decided not to charge Pantaleo with Garner’s death, protests erupted again. Among the reasons: a lack of transparency about why the grand jury decided not to indict.
Grand juries by definition are secret—and they’re an integral part of the American justice system, traced back to the Bill of Rights: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”
“As it was designed,” says University of Michigan law professor Eve Primus, “the grand jury is supposed serve an investigative purpose, as a screening function or a check on prosecutors who wield quite a lot of power.” States enjoy a great deal of flexibility when it comes to grand juries. While federal grand juries are mandatory, only 28 states and the District of Columbia employ some form of grand jury process. The British justice system long ago abandoned grand juries altogether—its last one met in 1933.
Now critics in the U.S. are seizing on high-profile cases in which grand juries have failed to indict police for the death of unarmed black men, to call the American system into question. Last week, for instance, New York City Public Advocate Letitia James told the Daily News she’s against grand juries for New York in their current form: “The secrecy in the grand jury proceeding basically breeds a lot of suspicion. We all know sunshine is the best disinfectant.”
Sunshine was purportedly the reason Robert McCulloch, the prosecutor in St. Louis County, released documents, photographs, and transcripts from the grand jury that decided not to indict Darren Wilson, the Ferguson (Mo.) police officer who shot and killed unarmed teenager Michael Brown in August. In this case, which likewise touched off weeks of protests, it was the prosecutor seeking to disclose materials from the grand jury in an attempt to eliminate suspicion of the outcome. In New York, by contrast, the push for disclosure is coming from James and others outside the grand jury system.
Daniel Alonso, a former Manhattan chief assistant district attorney, warns that unsealing grand jury documents would be a terrible idea. “The New York State Legislature has made a decision that grand jury secrecy is an important public policy,” he says. And with good reason: “The best one is that [prosecutors] need to be able to encourage witnesses to speak freely and not to worry about whether or not the defendant will find out what they had to say in front of the grand jury or whether they testified at all.” Releasing grand jury information after the fact—as McCulloch did in the Wilson case—would take away prosecutors’ ability to believably tell grand jury witnesses that their testimony won’t be made public.
Safety is a big part of the issue—making sure people can testify without having to worry about being violently targeted by the subject at the center of a grand jury proceeding. “It’s also about getting the full, candid testimony of a witness,” says Alonso, who now oversees the legal functions at Exiger. “You want to make sure every witness does his or her best to tell 100 percent of the truth. And the reality is that when people are worried as to who might find out or who might see it, the testimony you get isn’t as candid as it could be.”
Critics of grand jury secrecy see these concerns for witness safety and candor as overblown. Tony Rothert, a staff attorney with the American Civil Liberties Union of Missouri, represents the unnamed “Grand Juror Doe” in a federal lawsuit seeking to allow a member of the Ferguson grand jury to speak publicly about the non-indictment. Grand jurors are typically sworn to secrecy, and Missouri is no different in that regard.
Rothert says no prosecutor should ever tell a witness that their testimony won’t see the light of day. “When someone’s indicted, they’ll generally be able to get copies of the testimony from the grand jury,” he explains. “If a prosecutor is promising a witness in a grand jury that no one’s ever going to know what their testimony was, or that they testified, that’s not an honest promise.”
There is a middle ground. “If secrecy rules protect some unindicted defendants from ignominy, then releasing the transcripts undermines that protection,” argues Ben Trachtenberg, an associate law professor at the University of Missouri. “If secrecy encourages witnesses to testify fully and truthfully, then releasing the transcripts in this case may chill future witnesses.”
Trachtenberg and Alonso agree that there’s room for improving grand jury processes. New York Governor Andrew Cuomo has proposed appointing an independent monitor to review cases of police-involved deaths that don’t result in an indictment. “There are things you can do short of the literal meaning of the word ‘transparency,’” Alonso says. “Because if you’re going to be transparent, you’re going to let the public and the press into the grand jury room. That is a monumentally bad idea.”
No matter what happens in the Garner case, Michigan law professor Primus sees it as a good thing that grand jury processes are getting attention. “Whenever you vest as much power and discretion as we do in one office”—the prosecutor—“it’s important to think about the different means of checking that power,” she says.