The New York Times reported this morning that a Staten Island judge has refused to release the minutes from the Eric Garner Grand Jury Proceeding. This is not even remotely surprising. Generally speaking, Grand Jury minutes are rarely released. The concept of Grand Jury secrecy dates back hundreds of years. It exists so witnesses can feel safe in testifying against others and it stops the targets of investigations from knowing they are a target of an investigation. The concept of Grand Jury secrecy is so serious that it is actually a felony to illegally to even discuss what happens in a Grand Jury proceeding unless certain criteria are met. There are some pretty obvious exceptions to this rule. Most notable is that if the case eventually proceeds to trial then the defense attorney is entitled to have the minutes from any witness who testified in the Grand Jury if the prosecutor intends to call that witness at trial. The lawyer doesn’t get these minutes until before opening statements in a jury trial, or before the first witness testifies in a bench (judge) trial. The Grand Jury minutes of a defendant are also discoverable if the defendant chooses to testify on his own behalf in the Grand Jury.
Here, several parties wanted the minutes of the proceeding to be released. However, the judge stated that these parties failed to establish “compelling and particularized” need to have the minutes released. I don’t know whether there was or was not a compelling or particularized need, but I do know that prosecutors have tremendous influence in the Grand Jury. In a previous blog post I commented on the fact that it’s good when prosecutors bring all police shootings to the Grand Jury and allow them to decide whether to accuse an officer or not. The problem though is that prosecutors have tremendous discretion in how to bring the evidence. Prosecutors are routinely taught to keep the presentation “bare bones.” All they need to get an indictment is for 12 or more of the Grand Jurors (out of anywhere from 16-23 total) to believe that it was more likely than not that the target of the proceeding committed the crime in question. The more lengthy a witness’s testimony is, the more likely it is to lead to inconsistencies when that same witness testifies at trial. So they deliberately keep it short and sweet. That’s all good and well. But when prosecutors drag out proceedings and go out of their way to present detailed and exculpatory evidence to the Grand Jury (which they are under no legal obligation to do) when a police officer is the target of an investigation, then they are treating the police very differently than anyone else. Whether they should or shouldn’t do this is a matter for debate. But the public should have more information about how these proceedings can differ depending on who is being investigated. On the one hand, the judge is probably right to not cave into public pressure in this circumstance because it could open up a slippery slope in other “tough cases.” On the other hand though, to say there isn’t a compelling reason to release the minutes of a very controversial decision in a conservative borough where the DA is now running for federal office, sounds a bit wrong.