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Secrecy preserved in police chokehold death probe

Created: 03/20/2015 4:21 AM
By: By TOM HAYS and COLLEEN LONG

NEW YORK (AP) — A push for answers on how a New York City police officer avoided criminal charges in the videotaped chokehold death of Eric Garner has run aground after failing to clear the strict legal bar protecting grand jury secrecy.

State Supreme Court Justice William Garnett ruled on Thursday that the grand jury record would remain under seal, rejecting arguments by the New York Civil Liberties Union and others that the public had a right to know why jurors refused to indict the officer in spite of the video. He wrote that the law required the plaintiffs to establish a "compelling and particularized need" to release the grand jury minutes.

The Staten Island judge's ruling cited a handful of rare instances where New York courts authorized disclosure, but only to specific parties for specific reasons — not out of the public interest.

For example, a 2012 appeals court ruling authorized release of bank records from a grand jury proceeding to someone seeking a civil judgment against the United Arab Emirates. Another ruling in 1978 turned over witness statements to state police for disciplinary proceedings. A 2001 decision even gave the son of a defendant in a decades-old murder case access to grand jury minutes to use for a movie script.

At a hearing in February, Garnett had asked over and over how the Garner grand jury minutes would be used.

"The only answer which the court heard was the possibility of effecting legislative change," he wrote. "That proffered need is purely speculative and does not satisfy the requirements of the law."

The effort to make the Garner grand jury record public had been considered a longshot. But the decision comes amid an ongoing debate over whether the laws need revisions promoting more transparency, particularly when it involves police shootings.

By preserving secrecy in the Garner case, the court "has reinforced the distrust many New Yorkers already feel toward the performance of the criminal justice system in this case," said NYCLU legal director Arthur Eisenberg.

Officer Daniel Pantaleo and other officers had stopped Garner last summer on suspicion of selling loose, untaxed cigarettes. A video shot by an onlooker shows Garner telling the officers to leave him alone and refusing to be handcuffed. Pantaleo responded by wrapping his arm around Garner's neck in what he said was a sanctioned takedown move and not a banned chokehold. The heavyset Garner, who had asthma, is heard on the tape gasping, "I can't breathe." He loses consciousness and died at a hospital.

The NYCLU and others had asked the court to order Staten Island District Attorney Daniel Donovan to release the grand jury transcript, including the testimony of Pantaleo, and dozens of witnesses, detailed descriptions of evidence and other documentation. A similar step was voluntarily taken by the prosecutor in Ferguson, Missouri, when a grand jury there refused to indict an officer in the fatal police shooting of 18-year-old Michael Brown.

Both Garner and Brown were black; the officers involved are white. The deaths sparked nationwide protests about the treatment of communities of color by law enforcement and a debate about the role of race in policing.

Donovan argued that the disclosure would damage the credibility of prosecutors seeking to assure both grand jurors and witnesses that details of their participation would be kept from public view.

The judge agreed that the argument "is particularly cogent in 'high publicity cases' where the witnesses' truthful and accurate testimony is vital." Garnett wrote: "It is in such notorious cases that witnesses' cooperation and honesty should be encouraged — not discouraged — for fear of disclosure."

The decision by the Staten Island grand jurors, he added, "was theirs alone, after having heard all of the evidence, having been instructed on law and having deliberated. Their collective decision should not be impeached by the unbridled speculation that the integrity of this grand jury was impaired in any way."

Jonathan Moore, who represents Garner's family, called the ruling misguided.

"We think this grand jury process was deeply flawed," he said. "We think the ability for the public to see what that process was like would have been an important step in understanding what happened here."

Donovan said Thursday his office would respect "and will adhere to Judge Garnett's well-reasoned decision."

The parties, which also include the Legal Aid Society, Public Advocate's office, New York Post and the NAACP, are appealing.

(Copyright 2015 by The Associated Press. All Rights Reserved.)

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