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Thursday, January 15, 2015
Volume 253—NO. 10
Corporate Crime
Grand Jury Practice,
Protests and Reform
I
n the aftermath of recent grand jury decisions not to indict law enforcement officers in
New York and elsewhere, nationwide protests
have erupted, questions have been raised
about federal and state grand jury processes,
and legislation has been proposed in New York
to address concerns about prosecutorial conflicts. Grand jury practice is by nature shrouded
in secrecy and remains somewhat mysterious
to the public. And the appearance of a conflict
between prosecutors and police officers subject
to grand jury investigation has been a primary
focus of the protests and the proposed legislation. This article will briefly explain the history
and purposes of the grand jury, highlight the
differences between federal and New York state
practice, address the prosecutor-law enforcement conflict issue and review the legislation
designed to ameliorate it.
History and Practice
The U.S. Supreme Court has described the
grand jury’s historic function as being the “protector of citizens against arbitrary and oppressive governmental action.”1 Judicial scholars
generally ascribe the origination of the grand
jury system to the Assize of Clarendon, an enactment issued by King Henry II in 1166.2 The Assize
provided for a jury of 12 men from every village to examine claims of crimes affecting the
local community brought by sheriffs, private
citizens or the jurors themselves. Under the
Assize, anyone arrested had to be tried in the
King’s Court, thereby stripping the ecclesiastical
courts and feudal barons of their long-standing
control over judicial matters.3
Although the Assize-based grand jury was
Steven M. Witzel is a partner and chair of the global whitecollar defense practice at Fried, Frank, Harris, Shriver &
Jacobson. Elizabeth Kozlowski, an associate, assisted
in the preparation of this article.
essentially an accusatory arm (or “sword”) of
the Crown, widely feared and generally seen
as abusive to citizens’ freedom, it was sufficiently regarded to warrant its inclusion in the
Magna Carta in 1215.4 It was not until the late
1600s, however, that the grand jury’s protective “shield” function fully developed. In several
cases, grand jurors refused to indict Protestant
opposition leaders on treason charges against
King Charles II.5 During the same period of time,
grand juries began issuing presentments against
royal government officials for public corruption.
These developments established “the grand jury
as a bulwark against the oppression and despotism of the Crown.”6
In the United States, colonial grand juries were
more active than their English counterparts, and
often took on administrative functions.7 In New
York, the grand jury took on many legislative
and regulatory activities, as New York had no
other representative body after King James II
abolished the Assembly in 1686.8 The quintessential example of the grand jury as protector
of colonial freedoms was the repeated refusal by
several different New York grand juries in 1734
to indict publisher-journalist John Paul Zenger
on seditious libel charges against the British
appointed governor.9 New York enacted its first
constitution in 1777, and the right to indictment
by grand jury was adopted in the 1787 New York
Bill of Rights.10 Similarly, the right to grand jury
indictment was not incorporated into the U.S.
Constitution, but was adopted in the 1791 Bill
of Rights, as part of the Fifth Amendment (“No
person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a grand jury.”).11
Despite originating the institution of the
grand jury, England abolished it in 1933, as it
was gradually made redundant by the development of pretrial magistrate committal proceedings.12 Notwithstanding the historic high
By
Steven M.
Witzel
regard for the grand jury in the United States,
the Supreme Court has never viewed the right
to be prosecuted only by means of grand jury
indictment as a “fundamental” right guaranteed
to all under the Constitution. To the contrary,
the right to an indictment by a grand jury is one
of the few rights in the Bill of Rights that has
not been made applicable to the states through
the Fourteenth Amendment.13 This allows for
varied state practices.
All states have incorporated the right to
indictment by a grand jury into their own
statutes or constitutions. Currently two states
(Connecticut and Pennsylvania) use the grand
jury solely as an investigative body and reserve
charging decisions to prosecutorial discretion. Twenty-five states allow prosecutors
the option of using an information or a complaint14 instead of an indictment to charge any
offense.15 The remaining 23 states (including
New York)16 require that indictments be used
to charge serious crimes and typically allow
other charging instruments for minor felonies
and misdemeanors.17
Federal grand juries—and New York state
grand juries—are typically comprised of panels of up to 23 jurors.18 The federal prosecutor’s burden of proof before the grand jury is
fairly low—only “probable cause” to believe
that a crime has been committed and that the
proposed defendant did it. An indictment or
“true bill” may be returned on the vote of 12
grand jurors, just over half of a fully present
grand jury.19
Under the Federal Rules of Criminal Procedure, a prosecutor may be present to submit
all evidence to, and answer all questions of, the
grand jury during its entire proceedings except
when it is actually deliberating.20 The prosecutor typically directs the grand jury investigation
and no federal statute permits a grand jury to
obtain outside investigatory assistance. The
Thursday, January 15, 2015
prosecutor acts as the grand jury’s factual and
legal advisor on the relevance of the evidence,
the elements of the offense and the controlling
legal principles.
Federal prosecutors have considerable freedom from judicial oversight and control over
the grand jury. The Supreme Court has essentially limited any judicial review of grand jury
activity to an extremely narrow “supervisory
power” when grand jury “misconduct” violates
clear rules and the “integrity of the grand jury’s
functions.”21 Prosecutors also have enormous
latitude with respect to the types of evidence
that may be introduced during a grand jury
proceeding, including hearsay, unauthenticated
documents, and responses to leading questions.
Federal rules mandate that grand jury proceedings remain secret and require that all participants refrain from disclosing matters occurring
before the grand jury, except that witnesses can
disclose their own testimony.22
Former Deputy U.S. Attorney General Larry
Thompson recently wrote that “[s]imply put,
the federal grand jury exists today, for the most
part, as a rubber stamp for prosecutors.”23 This
sentiment is not new. Forty years earlier, famed
criminal defense lawyer Edward Bennett Williams, then chairman of an ABA Committee on
Crime Prevention, stated that certain grand jury
proceedings are “an outmoded, archaic fetish of
yesteryear … go[ing] through the rubber stamp
processing.”24 In the most recently published
Department of Justice statistical crime tables,
there were 179,489 arrestees for the relevant
year across the United States but only 11 total
refusals to indict under the category of “no
true bill returned.”25 It was not a surprise when
then New York Court of Appeals Chief Judge
Sol Wachtler lamented—in the often quoted
phrase—that prosecutors have so much influence on grand jurors that “they could get them
to ‘indict a ham sandwich.’”26
Although federal grand jury practice has
remained relatively static over the past several decades, various states have implemented
different types of grand jury reforms regarding
participation of defense counsel, judicial intervention, discretionary testimony by defendants,
reduced secrecy, disclosure of exculpatory evidence, and explanation of potential defenses,
among other reforms.
Federal and New York law are similar in
requiring that prosecutors disclose exculpatory evidence that is “material” or “substantial” that might reasonably affect the jury’s
decision to indict.27 This includes instructing
the grand jury on possible defenses, such as
“justification.”28 Similar to the federal model,
New York grand juries can also return an indict-
ment with 12 votes upon a finding of “reasonable
cause” (similar to “probable cause”) to believe
an individual committed a criminal offense.29
New York and federal grand jury proceedings
are secret, but witnesses are allowed to disclose
their testimony.30
Federal and New York law diverge in several
ways. The biggest difference is that New York
grand jury targets have the statutory right to
testify before the grand jury upon serving notice
to the district attorney and signing a waiver of
immunity, to request that the grand jury call
witnesses they designate, and to bring counsel
into the grand jury to advise them during their
testimony (although counsel cannot otherwise
participate).31 New York grand juries also have
the authority to call and subpoena witnesses on
their own volition, although district attorneys
can petition the court to vacate the subpoena
if the testimony is detrimental to the “public
interest.”32 With limited exceptions, only “legally
sufficient” evidence admissible at trial can be
presented in New York grand jury proceedings.33
The “legal advisors” to New York grand juries
are “the court and the district attorney” and
the grand jury can seek and receive legal advice
and instructions from either or both.34 New York
courts have also taken a broader view of their
supervisory powers than federal courts and
have used the “exceptional remedy” to dismiss
a number of indictments where the integrity of
the grand jury process was impaired.35
racial aspects of several recent high-profile
shooting incidents (involving white officers
who have shot black individuals). Many have
described the grand jury’s “shield” power not
to indict as an injustice in its own right, and
harken back to the 1950s, when it was often
difficult to get southern white grand juries to
indict white defendants in cases involving claims
of race-based violence.36 Protestors have also
criticized grand jury secrecy as an unnecessary
barrier allowing the alleged conflict to persist
by giving district attorneys unreviewable leeway
to select what evidence to present and what
witnesses will testify.
Because grand jury proceedings are secret,
what the prosecutor said (or failed to say)
about the officer under investigation is rarely
known.37 In the Eric Garner-Staten Island case,
the court granted the district attorney’s ex parte
request to release certain limited information
about the grand jury proceedings, which was
limited essentially to the period of time it sat
(9 weeks), the number of witnesses (50) and
the number of exhibits (60).38 A group of petitioners have filed motions to unseal the grand
jury records; the Staten Island district attorney
asked for the applications to be denied, citing
precedents upholding grand jury secrecy, and
the court has ordered argument for Jan. 29.39
This contrasts to the Michael Brown-Ferguson,
Mo. shooting, where the St. Louis County DA’s
office took the extremely rare step of releasing
All states have incorporated the right to indictment by a grand
jury into their own statutes or constitutions.
Conflict
At the center of the controversy and protests about recent grand jury decisions not to
indict police officers is the public perception
that district attorneys avoid having grand juries
indict police officers because of a professional
relationship that prevents them from impartially
guiding a grand jury on the law and facts of a
case against police officers. Many state and local
politicians, and others, have asserted that there
is an inherent conflict of interest for local district attorneys where people have been killed by
police. They argue that a conflict arises because
the police and the district attorney offices work
closely together and need each other to carry
out their jobs, and that as a result the district
attorney cannot objectively handle cases against
police officers.
The protests have been exacerbated by the
the transcripts and evidence of the case presented to the grand jury, including the account
police officer Darren Wilson gave to grand jurors
on the day he testified.40
The perception and realities of whether a
true conflict exists can be debated, but the
appearance of a conflict is not an unreasonable assertion. An appearance of conflict finds
some support in recent media reporting on
grand jury statistics. According to a newspaper report, since 2000, 179 people have been
killed by on-duty New York police officers, and
only three indictments have resulted from these
on-duty incidents and only one officer has been
convicted (and received a sentence of probation).41 Although grand jury proceedings are
secret, these true bills of indictment against
police officers provide some comfort that the
system is not broken. In contrast to the Staten
Island grand jury declining to indict Police
Thursday, January 15, 2015
Officer Daniel Pantaleo in the Eric Garner case,
grand juries in the Bronx, Brooklyn, Manhattan
and Queens have recently investigated or are
investigating on-duty and off-duty police officer
shootings of unarmed men in well-publicized
cases, and grand juries in those boroughs have
returned “true bills” of indictment.42
Decisions not to issue a “true bill” are not
limited to police officers and are much more
common in New York than in the federal system.43 However, many in the public (and many
public officials) believe that there is a conflict
that needs to be addressed. It is of course almost
impossible to analyze or quantify whether district attorneys are “holding back” in presenting
police shooting cases to grand juries, or whether
there is any bias in their grand jury efforts that
favors police officers. While it remains debatable
whether and how the system can be improved,
a number of recent proposals have been made.
Proposed New York Reforms
A number of proposals, legislation, lawsuits and ideas have been put forward in
the past several weeks regarding grand
jury reform with respect to law enforcement officers. These include the following:
• After the Dec. 3, 2014 decision by the
Garner-Staten Island grand jury, Gov. Andrew
Cuomo promised that when the Legislature
returns to the Capitol in January, he would
launch a “soup-to-nuts” review of police and
grand-jury procedures.44
• On Dec. 5, Democratic State Sen. Diane
Savino and Assemblyman Matthew Titone
announced that they planned to introduce a
bill to require New York prosecutors to release
transcripts of witness testimony without judicial
consent.45
• On Dec. 8, New York State Attorney General
Eric Schneiderman asked Cuomo for authority
to investigate deaths of unarmed citizens by
police officers. In a letter to Cuomo, Schneiderman suggested that the perception of a conflict
“between the county District Attorney and the
police officers he or she works with and depends
on every day” warranted an immediate alternative arrangement.46
• On Dec. 8, Democratic Assemblyman Tom
Abinanti stated that he is drafting proposed legislation that would strip local district attorneys
of prosecutorial authority in cases involving
alleged crimes committed by police, and instead
give such authority to the attorney general.47
• On Dec. 8, Republican State Sen. (and former
police officer) Martin Golden stated that the
Senate was unlikely to approve any significant
changes and defended the current grand jury
system, but noted that he was open to broad-
ening the disclosure of grand jury information
to the public.48
• On Dec. 10, a number of Democratic state
senators introduced Senate Bill S7958 to
establish an “office of special investigation” to
investigate cases where police officers in the
line of duty cause the deaths of unarmed civilians. When the “state police” are so involved,
an “independent special prosecutor” is to be
appointed. This “office” would supplant district attorneys and present covered cases to
the grand and trial juries.49
• On Dec. 29, Governor Cuomo vetoed bill
A7333/S4928, which would have shifted all prosecutions of crimes committed at Rikers Island
from the Bronx DA to the Queens DA. The reported reason for the legislation was the belief that
the Queens DA would more aggressively prosecute crimes by inmates against prison guards.
Cuomo said the legislation would violate Article
XIII, §13 of the New York Constitution, which
provides for voters to elect a district attorney
to “faithfully prosecute” crimes occurring in
their county of residence.50
• On Jan. 5, 2015, Staten Island State Supreme
Court Justice William Garnett heard from counsel for the New York Public Advocate, The Legal
Aid Society, the New York Civil Liberties Union
and press organizations, all of which had filed
motions to unseal the Eric Garner grand jury
records. The Staten Island District Attorney
asked for the applications to be denied, citing
precedents upholding grand jury secrecy, and
the court has ordered argument for Jan. 29.51
confidentiality for grand jury purposes under
certain compelling facts.53
There are valid reasons to support grand
jury secrecy—from their investigatory nature
to protecting witnesses and trial strategies.
But if grand jury charges are not filed, historic
secrecy considerations are somewhat lessened.
Accordingly, some reform and flexibility in
providing limited grand jury information to
the public may be warranted after a “no true
bill” in police shooting cases. Such disclosures
might also ameliorate some of the concerns
about perceived prosecutorial conflicts. For
example, providing transcripts of grand jury
witnesses who agree to release their own testimony could be considered, as could the charging options that the prosecutor presented to
the grand jury.54
On the other hand, the proposals for a “special prosecutor” in police shooting cases, and
for taking away such investigations from New
York district attorneys, appear unwarranted.
First, the media and politicians were otherwise quiet when grand juries in New York City
indicted police officers in the past. Second,
the historic need for a special prosecutorial
office in New York—when there was endemic
police corruption in the 1970s and inadequate
local prosecutorial action55—does not appear
to exist now, a conclusion that finds support
in the level of state and federal indictments of
law enforcement officers for a wide variety of
misconduct, including the shooting of unarmed
individuals.56 Third, although there are different
Decisions not to issue a “true bill” are not limited to police
officers and are much more common in New York than in the
federal system.
Conclusion
In light of recent events, some balancing
of the historic provisions of grand jury secrecy with the release of certain transcripts or
information to an interested public would be
a fruitful area of careful reform, especially in
police shooting cases that draw significant
public interest. Under the federal rules, there
are exceptions to secrecy constraints and federal courts have recently allowed for release of
grand jury proceedings with “historical significance.” The Second Circuit has done so using
a “flexible” test for “special circumstances.”52
In New York, a state trial court found that the
public interest in disclosure of grand jury materials outweighed the strong presumption of
viewpoints on whether Officer Pantaleo should
have been indicted in the Garner case, there is
no evidence of any prosecutorial wrongdoing;
the grand jury heard from 50 witnesses and saw
extensive evidence. Additional disclosure about
the substance of “no true bill” grand jury proceedings in police shootings could also assuage
the “secrecy” and “conflict” rationales proffered
by some as a reason for a special prosecutorial
office, although a special prosecutor should of
course be subject to similar grand jury secrecy
constraints. Fourth, the traditional functioning
of the grand jury institution under district attorneys should not be overturned by one unpopular decision. Fifth, the basis cited by Cuomo in
vetoing the Rikers Island legislation—namely,
that it would deprive citizens of a community
Thursday, January 15, 2015
from having crimes investigated in the county
of their residence, applies to many of the reform
proposals, especially the “office of special prosecution” legislation.57
Finally, a wise safeguard to the integrity of
the grand jury system, at least with respect to
fatal shootings by police officers, is the reported
policy of former Manhattan DA Robert Morgenthau (continued by his successor Cyrus
Vance Jr.) to present all such cases personally
to the grand jury, adding a measure of political
accountability for these difficult cases.58 The
grand jury system may be imperfect, but it is
a federal and New York constitutional right
designed to protect all accused. The Supreme
Court said that the grand jury serves as the
“primary security to the innocent against hasty,
malicious and oppressive persecution.”59 That
right and security should be applied in equal
measure to all citizens, including police officers.
District attorneys are elected and reflect the
democratic choice of the citizens they serve.
They can be re-elected or voted out of office
as the community sees fit. The public voice
can continue to be heard on grand jury reform
issues through discourse, support, opposition,
protests and at the ballot box.
Dedication
I would like to dedicate this column to my
friend and partner, Howard W. Goldstein, who
is retiring from Fried Frank next month after
an illustrious career in the law. I “inherited”
this column two years ago from Howard and
our former partner Audrey Strauss. Howard’s
treatise on “Grand Jury Practice,” quoted
liberally herein, served as a foundation for
this column, just as Howard has always provided sound advice, guidance and humor in
our daily interactions. Howard is a brilliant
lawyer and a rock of integrity. I have been
honored to try to follow in his footsteps here,
and wish him and his wife Wendy the best
of everything in the future.
••••••••••••••••
•••••••••••••
1. United States v. Calandra, 414 U.S. 338, 343 (1974); see
Wood v. Georgia, 370 U.S. 375, 390 (1962) (“Historically, this
body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution.”);
see also In re Kittle, 180 F. 946, 947 (S.D.N.Y. 1910) (Learned
Hand, J.) (“They are the voice of the community accusing its
members … [w]ith certain not very well-defined exceptions,
they remain what the Grand Assize originally was … .”).
2. Although the origin of the grand jury is generally attributed to the Assize of Clarendon, scholars also trace its
genesis to practices in the Athenian, Frankish, Norman, Saxon and Scandinavian justice systems. See Goldstein, Grand
Jury Practice, §2.02 at 2-3, Law Journal Seminars-Press #646
(2013); Helmholz, “The Early History of the Grand Jury and
the Canon Law,” 50 U. Chi. L. Rev. 613, 613-14 (1983).
3. The Grand Assize also ensured that the Crown would
receive the financial benefit of any fines levied by the juries.
Schwartz, “Demythologizing the Historic Role of the Grand
Jury,” 10 Am. Crim. L. Rev. 701, 705-10 (1972).
4. The Magna Carta signed by King John at Runnymede,
granted in Chapter 39 that “No free man shall be taken or
imprisoned, or dispossessed or outlawed or exiled or in any
way ruined, nor will we go or send against him except by the
lawful judgement of his peers or by the law of the land” (as
translated typically).
5. London grand jury failures to indict in the “Lord Ashley, Earl of Shaftesbury” and “Steven Colledge” cases in the
1680s came to symbolize the common law recognition of
the grand jury as the barrier between the accused and the
accuser. See Schwartz, supra note 3, at 710-21. The change
in the role of the grand jury was also caused by the rise in
power of the English Parliament, particularly after the Restoration. This led to a diminution in the grand jury’s role as a
“pawn in the struggle for monarchial supremacy.” Id. at 711.
6. In re Russo, 53 F.R.D. 564, 568 (C.D. Cal. 1971); see 4
Blackstone, Commentaries 349 (The English judicial system
“wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people
and the prerogative of the crown.”).
7. The first colonial grand jury sat in Massachusetts Bay
Colony in 1635, and in some colonies essentially ran local
governments, including supervising road and bridge building, operating local jails, determining compensation paid out
for public land takings, setting tax rates and collecting taxes.
See Goldstein, supra note 2 at §2.03 at 2-8.
8.
See
http://www.nysenate.gov/timeline
at
2.
9. See, e.g., Eben Moglen, “Considering Zenger: Partisan
Politics and the Legal Profession in Provincial New York,” 94
Colum. L. Rev. 1495 (1994), http://moglen.law.columbia.edu/
publications/zenger.html.
10. The 1787 Bill of Rights provided for a grand jury in its
second provision, tracking in large part the modern English
translation of the Magna Carta: “That no citizen of this State
shall be taken or imprisoned … but by lawful judgment of
his or her peers or by due process of law.” The current grand
jury provision in the New York Constitution, as amended by
the Constitutional Convention of 1938 and adopted by popular vote in November 1938 is contained in §6 of Article 1
of the Bill of Rights and provides in pertinent part that “No
person shall be held to answer for a capital or otherwise infamous crime … unless on indictment of a grand jury.” N.Y.
CONST. art. I, §6.
11. In addition, the Judiciary Act of 1789 called for grand
juries to attend all sessions of the circuit and district courts.
12. The Administration of Justice (Misc. Provisions) Act, 1933, 23 & 24 Geo. 5, c.36 §1.
13. McDonald v. City of Chicago, 561 U.S. 742, 784 n.30
(2010) (“The Grand Jury Clause of the Fifth Amendment …
[does] not apply to the States.”); Hurtado v. California, 110
U.S. 516, 538 (1884).
14. An information or complaint are both similar to indictments in form in that they charge particular persons with
committing specific crimes, but unlike indictments, informations and complaints can be initiated, processed and filed by
prosecutors without any grand jury input.
15. Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Nebraska, Nevada, New Mexico, Oklahoma, Oregon,
South Dakota, Utah, Vermont, Washington, Wisconsin and
Wyoming.
16. N.Y. Crim. Proc. Art. 170, §170.10.
17. Alabama, Alaska, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi,
Missouri, New Hampshire, New Jersey, New York, North
Carolina, North Dakota, Ohio, Rhode Island, South Carolina,
Tennessee, Texas, Virginia and West Virginia.
18. Fed. R. Crim. P. 6(a)(1). Federal and New York grand
juries must consist of a minimum of 16 persons and no more
than 23 persons. Id.; N.Y. Crim. Proc. Art. 190, §190.05. Although a federal grand jury may be dismissed in a shorter
period, service cannot extend past 18 months without judicial approval. Fed. R. Crim. P. 6(g).
19. Fed. R. Crim. P. 6(f).
20. Fed. R. Crim. P. 6(d).
21. United States v. Williams, 504 U.S. 36, 46 (1992); see
supra note 35
22. Fed. R. Crim. P. 6(e)(2). Indictments can be sealed until
the defendant is in custody (Fed. R. Crim. P. 6(e)(4)) and proceedings and records can be closed and also sealed to the
extent necessary to ensure grand jury secrecy. Fed. R. Crim.
P. 6(e)(5) and 6(e)(6).
23. Nat’l Assoc. of Crim. Def. Lawyers: Evaluating Grand
Jury Reform in Two States: The Case for Reform (November
2011) at 7, available at http://www.nacdl.org/2stategrandjury.
24. E.B. Williams, “Crime, Punishment, Violence: The Crisis in Law Enforcement, Judicature,” Vol. 54, No. 10, p.420
(1971).
25. U.S. Dep’t of Justice: Federal Justice Statistics 2010—
Statistical Tables, December 2013, at 12.
26. Marcia Kramer and Frank Lombardi, “New top state
judge: Abolish grand juries & let us decide,” N.Y. DAILY
NEWS, Jan. 31, 1985 at 3.
27. See People v. Garrett, 23 N.Y.3d 878, 884 (2014) (requiring prosecutors to disclose “evidence favorable to
[the] accused … where the evidence is material either to
guilt or to punishment”); People v. Erber, 210 A.D.2d 250,
619 N.Y.S.2d 344, 345 (1994) (requiring prosecutor to disclose exculpatory evidence when it is “of such quality
as to create the potential to eliminate a ‘needless or unfounded prosecution’”); see also U.S. Attorneys’ Manual
9-11.233 (2015) (requiring prosecutors “personally aware
of substantial evidence which directly negates the guilt” of
a grand jury subject to “present or otherwise disclose such
evidence to the grand jury before seeking an indictment”),
available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-11.233.
28. People v. Waddell, 78 A.D.3d 1325, 1326 (3d Dep’t 2010)
(under New York law, “where the evidence suggests that a
complete defense such as justification may be present, the
prosecutor must [also] charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should
preclude the criminal prosecution.”) (citations omitted);
People v. Goetz, 68 N.Y.2d 96, 115 (1986) (same).
29. N.Y. Crim. Proc. Art. 190, §§190.65(1), 70.10(2).
30. N.Y. Crim. Proc. Art. 190, §190.25(4); Fed. R. Crim. P.
6(e)(2)(B).
31. N.Y. Crim. Proc. Art. 190, §§190.50(5)-(6), 190.52(1)(2). The waiver of immunity functions to balance the playing field in the grand jury, when the alleged target takes the
witness stand to use the grand jury proceedings both as a
sword against the prosecution case and as a shield to protect him or her from indictment.
32. N.Y. Crim. Proc. Art. 190, §190.50(3).
33. N.Y. Crim. Proc. Art. 190, §§190.30(1), 190.65(1).
34. N.Y. Crim. Proc. Art. 190, §190.25(6).
35. Goldstein, supra note 2, §14.04 at 14-26; N.Y. Crim.
Proc. Art. 210, §210.35(3). See People v. Adessa, 89 N.Y.2d
677, 686 (1997) (denying dismissal of grand jury indictment).
New York state courts have dismissed indictments post-United States v. Williams, see supra note 21 and accompanying
text, in cases where prosecutor exceeded limits of crossexamination by implying that defendant elected official was
subject to more stringent standards than the law requires
and breached his duty as a quasi-judicial officer by failing to
obtain a judicial ruling when requested by grand jurors, see
People v. Gallagher, 859 N.Y.S.2d 897, 2008 WL 48007 at 9-10
(Queens County, Jan. 24, 2008), or the integrity of the grand
jury proceeding was impaired by the prosecutor’s introduction of irrelevant evidence concerning the defendant’s sexual orientation, see People v. Hodge, 2007 N.Y. Misc. LEXIS
7170, at 2 (Nassau County, Sept. 26, 2007).
36. Goldstein, supra note 2, §2.04 at 2-12, n.6.
37. It has been reported that Staten Island prosecutors
only asked the grand jury to consider manslaughter and
criminally negligent homicide charges, but did not give
the grand jury an option to charge Officer Daniel Pantaleo
with “reckless endangerment.” Rocco Parascandola, Meg
Warner and Corky Siemaszko, “Staten Island DA Daniel
Donovan didn’t include reckless endangerment charge
as option to Eric Garner grand jury: WNBC,” N.Y. DAILY
NEWS, Dec. 6, 2014.
38. In the Matter of the Application of the District Attorney
of Richmond County, No. 80294/14 (N.Y. Sup. Ct. 2014) (order
granting petitioner’s application pursuant to CPL 190.25(4)
for public disclosure of the nature of certain grand jury
evidence and the decision of the grand jury). The court’s
Thursday, January 15, 2015
written decision and order also broke down the nature of
the witnesses—22 civilians; 28 police officers, emergency
medical personnel or doctors—and the exhibits—4 videos,
records regarding NYPD policies and procedures, medical
records, photographs of the scene, autopsy photographs
and records pertaining to NYPD training. In late December
2014, the city’s Public Advocate and a number of civic and
press groups requested that the court release transcripts
of the grand jury proceedings. The judge who issued the
original order recused himself from considering the new
request because of a potential conflict of interest since
his wife serves on the board of the hospital that treated
Garner. An earlier conflict of interest did not arise because
the request to release grand jury information was limited. J.
David Goodman, “Judge Sits Out Decision on Garner Transcripts,” N.Y. TIMES, Dec. 18, 2014, at A32. On Jan. 5, 2015, a
hearing was held on the request. See infra notes 39 and 51,
and accompanying text.
39. See Joe Jackson, “Fight Set on Garner Records,” WALL
ST. J. Jan. 6, 2015, at A15; see supra note 52 and accompanying text.
40. See http://apps.stlpublicradio.org/ferguson-project/
evidence.html.
41. Sarah Ryley et al., “Exclusive: In 179 Fatalities Involving On-Duty NYPD Cops in 15 Years, Only 3 Cases Led to Indictments—and Just 2 Convictions,” N.Y. DAILY NEWS, Dec.
8, 2014. This article is limited to on-duty killings of civilians
since 2000, but fails to include off-duty or undercover shootings, and excludes the 1999 indictments in the Amadou Diallo shooting. See infra note 42.
42. For example, former NYPD Office Bryan Conroy was
convicted in 2005 of criminally negligent homicide for shooting Ousmane Zongo during a warehouse raid in 2003. Zongo
was unarmed and worked at the warehouse; he apparently
surprised Officer Conroy but was never implicated in the investigation. Conroy was indicted by a Manhattan grand jury.
His first trial ended in a hung jury; he was convicted in a
second bench trial and sentenced to five years’ probation
and community service. In the 1999 shooting of Amadou Diallo by four white police officers in the vestibule of his Bronx
apartment building, the police mistook Diallo for a rape
suspect and ordered him to show his hands; when Diallo
reached for his wallet, the officers testified that they thought
it was a gun and fired 41 bullets in total, killing Diallo. The
officers were indicted by a Bronx grand jury, but acquitted
of murder charges after trial in 2000. In 2012, another Bronx
grand jury indicted Officer Richard Haste on manslaughter
charges for the shooting death of teenager Ramarley Graham. Haste claimed he followed Graham into his apartment
building as part of a drug investigation, and opened fire on
Graham when he reached for his waistband; no weapon was
found. The original indictment was dismissed by the court
based on prosecutor error, and when re-presented, a second
Bronx grand jury refused to indict. In 2006, an unarmed Sean
Bell (on the eve of his wedding) was killed in Queens, and
two of his friends were severely wounded, after a team of
white and black plainclothes and undercover NYPD officers
shot at them 50 times after a legally intoxicated Bell attempted to drive away in his car after being ordered to stop by an
officer holding out his badge. A Queens grand jury indicted
three NYPD detectives on manslaughter and other charges,
and they were all found not guilty after trial. More recently,
in December 2014, Akai Gurley was shot by mistake in a dark
Brooklyn housing project stairwell by rookie police officer
Peter Liang. According to news reports, a Brooklyn grand
jury has been empaneled to consider possible criminal
charges against Officer Liang.
43. According to statistics from the New York State Division of Criminal Justice, in 2013 Staten Island grand juries
returned no true bill decisions in 5.1 percent of all cases,
and grand juries statewide dismissed charges in 4.3 percent
of cases. Philip Bump, “Staten Island Grand Juries Decided
Against Indictment More Often that State Average in 2013,”
WASH. POST, Dec. 3, 2014.
44. Fredric U. Dicker, “New GOP Senate to Veto Gov’s Cop
Move,” N.Y. POST, Dec. 8, 2014, at 6.
45. James Queally, “After Eric Garner Case, 2 N.Y. legislators want to make grand jury evidence public,” L.A. Times,
Dec. 5, 2014 at 6.
46. Erica Orden et al., “Attorney General Requests Authority to Probe Police,” WALL ST. J., Dec. 9, 2014, at A19, A22.
Flanked by New York City Public Advocate Letitia James
and City Comptroller Scott Stringer, and more than a dozen
city and state officials, AG Schneiderman said the city “cannot afford to wait” for the legislature to act. It was reported
that Queens DA Richard Brown, Bronx DA Robert Johnson
and Brooklyn DA Kenneth Thompson all were opposed to
the move, Manhattan DA Vance was open to discussion but
warned of a lack of accountability for unelected officials and
Staten Island DA Dan Donovan declined to comment.
47. See supra note 45.
48. Id.
49. N.Y. Bills, S7958, 2013-2014 (introduced Dec. 10, 2014).
A special prosecutor in this context is a new spin on an old
idea. In 1972, New York’s then-Gov. Nelson Rockefeller issued
a series of executive orders directing the attorney general to
appoint a Special Deputy attorney general to act as a Special Prosecutor, and to create the Office of the Special State
Prosecutor, to investigate and prosecute police corruption
in New York City. The governor’s orders were prompted by
recommendations from the Commission to Investigate Allegations of Police Corruption in the City of New York chaired
by former federal judge Whitman Knapp (the Knapp Commission) to tackle police corruption, restore public trust in
police officers, and address allegations of misconduct by
lawyers and judges. The Office of the Special State Prosecutor, however, was shutdown in 1990 because of budget constraints. See M. H. Nadjari, “New York State’s Office of the
Special Prosecutor: A Creation Born of Necessity,” HOFSTRA
L. REV. 97, 97-100 (1974).
50. Joel Stasheno, “Cuomo Vetoes Bill to Change Rikers
Island Prosecutor” (Dec. 31, 2014), NYLJ, at 1-2.
51. Andrew Keshner, “DA Argues Against Release of Garner Grand Jury Records” (Jan. 6, 2015), NYLJ, at 1, 8. In response to the motions to release the grand jury records—
and citing to media reports about retribution to witnesses
identified after release of the Michael Brown-Ferguson grand
jury records even though they were released in redacted
form to protect these witnesses, see supra note 40—the
Staten Island district attorney’s office argued that despite
the “extraordinary public interest” for information, even release of redacted records would violate assurances provided
to the Eric Garner-Staten Island grand jury witnesses, would
violate New York law and “would impair the effectiveness of
future grand jury proceedings.” The petitioners will respond
on Jan. 16, 2015; the prosecutors will submit their reply papers on Jan. 23; and argument is scheduled for Jan. 29.
52. See In re Petition of Craig, 131 F.3d 99, 107 (2d Cir.
1977) (upholding secrecy of 1948 grand jury proceedings
related to “Red Scare” allegations of communist infiltration
of the U.S. Treasury Department); In re Petition of Kutler,
800 F. Supp. 2d 42, 47-48 (D.D.C. 2011) (releasing Watergaterelated grand jury information). Last month, SDNY Judge
Alvin Hellerstein refused to reverse the 1950 conviction of
Miriam Moskowitz for conspiracy to obstruct justice in the
investigation into Soviet nuclear espionage resulting in the
convictions and executions of Julius and Ethel Rosenberg.
Moskowitz v. United States, 2014 LEXIS 170311 (S.D.N.Y. Dec.
9, 2014); see “Woman, 98, Loses Bid on Atomic Spy Case Conviction,” N.Y. TIMES, Dec. 4, 2014. Previously, Hellerstein had
found that the proceedings in the Moskowitz and Rosenberg
grand juries were of “substantial historical importance” and
ordered the release of 11 different grand jury witness transcripts based on the witnesses’ consent, death, inability to
locate, and/or failure to object by family. In re Nat’l Sec. Archive, 2008 LEXIS 123956 (S.D.N.Y. Aug. 26, 2008); see United
States v. Brothman, 191 F.2d 70 (2d Cir. 1951).
53. In Woods v. City of New York, Dkt. No. 35934/2005
(Queens County, Miller, J.) (June 9, 2009), the court ordered
the disclosure of grand jury materials where a falsely accused defendant spent more than a year in prison due to
potential official misconduct. The court’s reasoning and balancing in favor of release was based on the defendant seeking to pursue civil claims against New York City and he needed “a complete and full examination of the witnessed for his
civil action.” Id. According to the court, where a “criminal
mistrial is declared because ‘somebody is not reliable, either
this informant is not a reliable informant or a police officer
committed perjury,’ there is a compelling public interest to
have full disclosure of the facts regarding possible official
misconduct.” Id.
54. See supra note 37. The availability of New York statutes allowing grand juries to provide public reports on
aspects of its proceedings, subject to judicial and prosecutorial review, could function as a potential mechanism for
certain disclosures to the public. N.Y. Crim. Proc. Art. 190,
§§190.85, 190.90.
55. See supra note 49.
56. See, e.g., supra note 42.
57. See supra note 50. A special prosecutor, the attorney
general or an “office of special prosecution” may diminish
the appearance of a conflict of interest as they would presumably not have the same history of working closely with
police on a daily basis to investigate cases. Even so, these
proposals have several limitations. Primarily, they usurp
power and undermine the district attorney’s authority, and
the community’s democratic right to elect the county’s top
prosecutor. Moreover, whether appointed by the governor
or the attorney general or the legislature, a special prosecutor may add layers of political partisanship, public expectation and other interests not otherwise in play.
58. See supra note 41. Indeed, the citizens of Staten Island
will apparently have a chance to vote for a new DA this year
now that current DA Dan Donovan was selected on Jan. 10,
2015 as the Republican nominee for the congressional seat
vacated by former Representative Michael Grimm. Kate Briquelet, “Staten Is. DA’s ‘Grimm’ victory,” N.Y. POST, Dec. 11,
2015, at 2.
59. See supra note 1, Woods v. Georgia, 370 U.S. at 390.
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