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Op-Ed: Garner Case Exhibit A for Reform (Albany Times Union)

by Donna Lieberman

The grand jury charged with investigating the killing of Eric Garner has left New Yorkers with more questions than answers — the most important question being: Can we trust the grand jury process to deliver justice?
Cellphone video provided a clear view of the moments leading up to Eric Garner’s death. Millions watched police officers holding him down as he gasped “I can’t breathe” 11 times. In the face of such compelling video evidence, how could a Staten Island grand jury fail to hold a single NYPD officer accountable?

The problem is that in New York, what goes on in the grand jury is a deep, dark secret. And without greater transparency about what evidence and instructions were presented to the grand jury or whether any deals were made to secure testimony, the outcome doesn’t make sense.

Our state’s criminal justice system is only as strong as New Yorkers’ faith in it. And far from believing in the system as a beacon of justice, thousands of New Yorkers have understandably become disenchanted and taken to the streets to demand reform. Even worse, many New Yorkers have concluded that the whole system is rigged. The non-indictment of Officer Daniel Pantaleo or any other officer at the scene of the killing of Eric Garner was itself an indictment of the grand jury system, at least in cases involving wrongdoing by the police.

There have been calls for grand jury reform across the country. Last month, in response to the deaths of Eric Garner and Michael Brown, California passed a total ban on secret grand juries when a police officer is accused of using lethal force. Under this mounting pressure, the governor, the state Legislature, judges and advocates have taken up the cause of grand jury reform. But despite the consensus that New York must take action, the Legislature has failed to enact any systemic reform.

The Garner grand jury is Exhibit A in the case for reform. That’s why the New York Civil Liberties Union, among others, has been in court since December seeking public release of the grand jury’s transcript, the evidence presented and instructions. Knowing what went wrong or right in the Garner grand jury may not guarantee legislative action, but it will put the information at the heart of the grand jury reform debate in lawmakers’ hands.

For example, if we were to learn that key pieces of evidence were presented to the grand jury that would bolster public confidence in the non-indictment, lawmakers might be prompted to endorse new common sense guidelines allowing judges or district attorneys to redact and publicly disclose grand jury records in certain cases.

And if we were to learn that the district attorney failed to let the grand jury know all the options for holding any officers accountable under state law, we might seek complete transparency regarding a district attorney’s instructions to a grand jury or more active involvement by a judge. And if the proceedings of the Garner grand jury were to demonstrate an undue deference to police witnesses or hostility to civilians that pointed to an inherent conflict when district attorneys investigate the police, that would implicate the need for a special prosecutor as well.

All of these reforms — or continued inaction — will have lasting implications for our criminal justice system. The Eric Garner decision is so central to the grand jury reform movement that New Yorkers and lawmakers deserve to understand how and why the Staten Island grand jury reached the decision it did.

With confidence in the criminal justice system at dangerously low levels, state lawmakers need all the information to pursue the strongest policies.

As bold as the spirit of New York, we are the NYCLU.
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