ROCHESTER, N.Y. – On Tuesday, after an announcement that Rochester police officers involved in the death of Daniel Prude had been cleared by a grand jury, New York Attorney General Letitia James revealed that a judge had approved the release of the grand jury records.
This was a surprise to many, especially the attorneys for the city police officers who had faced criminal charges. They had received no notice of a pending release of the records.
And, while the death of Daniel Prude has received national attention, the possible disclosure of grand jury materials would be seismic in its own way — what some say is a detour from decades of legal practice and precedent in New York.
Monroe County Court Judge Karen Bailey Turner approved the release, but it’s unknown what precedents she may have cited as legal justification: Her ruling, typical with the privacy of grand jury-related issues, is now under seal and not publicly accessible. Letitia James’ legal filing asking for disclosure is also sealed.
Lawyers for the officers Wednesday wrote Judge Turner, asking for the chance to review the Attorney General’s request for disclosure and to possibly intervene.
Attorney James Nobles, who represents Officer Mark Vaughn, wrote that the attorneys, after the review, would like “the opportunity to be heard before your Honor to determine whether or not the release of these Grand Jury minutes is authorized under law, and if they are what redactions are necessary and should be made.”
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Vaughn is the officer who can been seen using the ‘segmenting’ physical restraint technique on a prostrate and handcuffed Prude in the police body-worn camera video of the incident.
The union for the New York State Police weighed in Wednesday, with its president, Thomas Mungeer, saying in a statement, “Why does the Attorney General feel that she has to move the goal post when faced — in her opinion — with an adverse decision?
“The sanctity and secrecy of the grand jury process is embedded in our laws and we hope that knee-jerk reactions won’t crack the foundation upon which our criminal justice system is based,” Mungeer said.
But others see more transparency as necessary, especially as the nation continues to grapple with the deaths of people of color at the hands of police.
“When there is a lack of transparency, there is a lack of trust in our justice system,” said Buffalo-based lawyer John Elmore, a former State Trooper who has handled civil rights litigation against police. “I commend the Attorney General for her willingness to release the grand jury transcripts so the public can understand why the grand jury reached its decision.”
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Grand juries: Why so secret?
The secrecy of grand juries is historically entrenched in both state and federal laws.
Grand juries gather in private, hear witnesses in private, and decide whether or not to criminally charge an individual in private. Prosecutors hold the upper hand at grand juries, where little defense — unless the accused chooses to testify — is presented. The grand jury consists of 16 to 23 people, and at least 12 are needed for a criminal indictment.
So, why the secrecy?
The reasons are numerous: Protections for the accused, especially if there is no indictment; protections for the witnesses; protections for witnesses with immunity; protections of anonymity even for the grand jurors. Granted, criminal trials do not offer these same protections, but historically a grand jury, because of its status near the outset of a criminal proceeding instead of the culmination, is treated differently.
Still, that privacy is not impenetrable.
Defense lawyers can get access to minutes of grand jury proceedings if they can prove a legal necessity for their case. If allowed, they can use that information at trial in limited ways, though the public would see no more than the grand jury testimony that is revisited at the trial phase.
“It’s always been a really laborious process to get them,” Rochester-based defense lawyer Peter Pullano said of grand jury minutes. “I’ve never seen it happen this fast.”
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While attorneys and grand jurors cannot discuss the proceedings, “witnesses are not bound (to secrecy),” said University of Buffalo Law School Professor Anthony O’Rourke, “A witness can go and say whatever they like about what happened in a grand jury.
“This creates an asymmetry where a witness can talk to the press or offer their perspective on what happened at a grand jury.”
With so little available publicly about the possible unsealing of the Prude grand jury records, it’s a bit of a guessing game to discern the case that Attorney General James made for disclosure and the justification Judge Turner used in her decision. But, it’s likely that both consider transparency to be so urgent with the Daniel Prude death that they either tried to carve out or they found in legal precedent some rationale to validate the unsealing.
Eight years ago, New York Attorney General Eric Schneiderman tried to make the same case when he sought the unsealing of grand jury records with the investigation of police who may have committed crimes, including murder, during the violent retaking of the Attica prison on Sept. 13, 1971. In that siege, state police and other law enforcement fatally shot 29 inmates and 10 prison employees who’d been held hostage during a four-day standoff after the infamous inmate rebellion.
State Supreme Court Justice Patrick NeMoyer agreed to release some records that were largely separate from the grand jury testimony, but decided that the sanctity of the grand jury process did not allow the disclosure of most of the minutes, which are still under seal. Attica is the nation’s deadliest prison riot — a total of 43 people died — but NeMoyer ruled that the historical significance of the uprising was not more important than grand jury secrecy.
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Lawyer Matthew Rich, who also has represented Rochester police officers in the investigation into Daniel Prude’s death, cited the Attica decision among others in a letter to Judge Turner Wednesday. In the letter, Rich questioned how disclosure could be allowed without defense lawyers being given a chance to decide whether to oppose the release.
“In light of the public’s unrest and questions about how this case was handled, and then to have a grand jury ‘no bill’ it, I think there might be compelling reasons,” said former Genesee County Public Defender Gary Horton. “I would personally (release them) but then I’ve never sat on the bench, and I have my ingrown biases.”
Malcolm Bell, who was prosecuting law enforcement with the Attica riot before the investigation was halted by gubernatorial action, said in a telephone interview Wednesday that he sees reason for the release of grand jury records with police killings of civilians, just as he has supported opening the Attica files.
“You can’t prove it because things remain secret, but I’m morally certain that a lot of cops have gotten away with murder because the grand jury presentation was not adequate and we never know,” said Bell.
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Eric Garner and Breonna Taylor
Should the grand jury minutes in the Daniel Prude death become public, either with or without legal challenge, it would create a new legal terrain in New York.
In 2015, appellate courts refused to allow disclosure of grand jury records with the New York City death of Eric Garner, an unarmed Black man who died after being placed in a chokehold and pinned to the ground by police on Staten Island. That death sparked outcries by many who thought the evidence against police was powerful and clear, yet the officers were not indicted.
Appellate judges in that case determined that a lower court, which refused to open the records, had “properly determined that the public interest in disclosure was outweighed by the dangers inherent in violating the secrecy of the grand jury process.”
The release of the records could also impede a federal investigation into the death, the court ruled. Similarly, federal authorities have said they will investigate Daniel Prude’s death, which the medical examiner ruled a homicide, partly caused by asphyxiation from police restraint.
However, the high-profile cases of unarmed Black people killed by police may be changing the dynamic, and the longstanding sacrosanct secrecy of the grand jury.
After a grand jury indicted one officer on a minor charge in the fatal Louisville, Kentucky police shooting of Breonna Taylor, a grand juror later complained that the panel had not been given all of the incriminating information. A lawyer for the juror sought release, making a similar case for openness as has been made with both the Eric Garner and Daniel Prude deaths.
“The full story and absolute truth of how this matter was handled from beginning to end is now an issue of great public interest and has become a large part of the discussion of public trust throughout the country,” Kevin Glogower, the attorney for the juror, wrote in a court filing, according to the Louisville Courier Journal, part of the USA TODAY Network.
Ultimately, grand jury tapes were released in that case as pressure and criticism mounted around questions of whether prosecutors had purposefully presented a flimsy case to the grand jury.
That is a Kentucky case, and practically has little legal linkage with the Rochester homicide of Daniel Prude. But, in the current times, as police and public officials come under a spotlight of scrutiny with the deaths of unarmed citizens at the hands of law enforcement, there is surely a symmetry between the cases. What remains to be seen is which force — prevailing legal precedent or a community thirsting for answers — will hold sway.
In her statement about the grand jury disclosure Tuesday, Attorney General James said the release of the grand jury minutes has been “granted” by the judge, then also said, “As soon as the judge authorizes, my office will release those proceedings so the Prude family, the Rochester community, and communities across the country will no longer be kept in the dark.”
The Attorney General’s Office did not disclose what specifically must be done for Judge Turner to “authorize” the final release, but it’s likely that the redaction of information identifying the accused, though already known publicly, and witnesses is required.
The next few days and weeks could determine whether that disclosure will become the focus of a legal fight, as happened with the grand jury records of a cataclysmic inmate uprising at a western New York prison a half-century ago, or the much more recent police-connected death of a Black man on the streets of New York City.
Attorney General James contends that the grand jury veil needs to be lifted with deaths like those of Daniel Prude.
“This is a critical step in effecting the change that is so desperately needed,” James said.
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