New York’s Highest Judge Seeks To Water Down the Grand Jury Right

The chief judge of New York’s highest court, Jonathan Lippman, this week announced that the need for significant changes in grand-jury protocols is “obvious.” The only thing obvious to me is that the judge is veering off side.Judge Lippman sprang the idea in his State of the Judiciary speech. He didn’t name Eric Garner but made it clear that his proposal grows from the climate of controversy after the refusal of a grand jury on Staten Island to indict any officers in the Garner case.That, in and of itself, is a warning flag. The rest is worse. Judge Lippman wants to gut grand-jury secrecy and install a judge physically inside the grand-jury room to preside in all cases that involve homicides or felonies arising out of “police-civilian encounters.”Call it the Jonathan Lippman Cure for Blind Justice Act of 2015. Hizzoner wants to lift the figurative blindfold that symbolizes impartial justice and put a thumb on the scale that blind justice is supposed to be holding.To appreciate how outrageous it is, consider what a grand jury is. It is a right — one vouchsafed in the Bills of Rights of both the US Constitution and the New York state Constitution.Mark to whom the right is vouchsafed: not to the victims of a crime. Or to the people of New York. Or to Judge Lippman. The right is vouchsafed for persons answering for a “capital” or “otherwise infamous” crime.Why would anyone need a grand jury? The answer is to protect against a rush to judgment. Or, as Chief Justice Earl Warren once put it, “to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”The uproar over the Garner case was precisely because the grand jury carried out the assignment as understood by Warren and the authors of the New York and United States constitutions. Lord knows what would have happened had a judge intervened.Inserting a judge into the grand-jury room is bizarre enough in and of itself, but Judge Lippman also wants to end grand-jury secrecy. That is, again, he wants to end such protection for certain accused persons, namely police officers and others in police-civilian encounters.All kinds of reasons exist for grand juries to conduct their deliberations in secret. This is so fundamental that it has existed in English law for centuries and is required by New York state law.Judge Lippman himself noted the reasons. Secrecy prevents “tampering” with the grand jury’s investigation. It prevents word leaking out so a person being investigated might flee. It aims to “encourage reluctant witnesses to cooperate.” And to protect the innocent.In waltzes Judge Lippman to announce that the long-cherished principle of secrecy can be “detrimental” to “access to justice” and “public debate.” By that standard, one could end many of our constitutional rights.Why single out cops to be denied the full grand-jury right? Police cases are far from the only proceedings where secrecy can be detrimental to “public debate.” What about, say, abortion cases? Or gun cases? Or crooked-politician cases?Sorry, New York’s Constitution says that (outside of a war) no person shall be held to answer for a capital or other infamous crime unless and until a grand jury has indicted that person. It doesn’t say “no person except policemen.” It says “no person.” Period. All classes of persons are equal (hence the blindfold).Finally, why limit this to grand juries? Why not petit juries, the ones that actually try a case? If a judge is to sit in on a grand jury and pose questions, as Judge Lippman wants in the case of cops, why not have a judge sit in on the deliberations of all juries?There is no doubt that many, many New Yorkers were shocked that the Staten Island grand jury failed to indict the officers in the Eric Garner case. The idea that this can be repaired by diluting our constitutional rights is also shocking.Fortunately, Judge Lippman can’t dilute the grand-jury right all by himself.The Post reports that Assembly Codes Committee Chairman Joe Lentol, a Democrat of Brooklyn, has “mixed feelings” about the Chief Judge’s scheme, which he fears would have a chilling effect on prosecutors. Frank Sedita, head of the state District Attorneys Association, says some of his members’ objections may be “insurmountable.”So the Constitution may prevail.This column first appeared in the New York Post.

New York’s Highest Judge Seeks To Water Down the Grand Jury Right

New York’s Highest Judge Seeks To Water Down the Grand Jury Right

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