City Bar Comments on Criminal Justice Reform Act of 2015

While commending Governor Cuomo’s effort to address the critical issue of the public’s support for the criminal justice system in the wake of the Eric Garner grand jury determination, the New York City Bar Association believes the proposed reforms in the Criminal Justice Reform Act of 2015 (A.3011/S.2011) require further study in order to be effective, and specifically opposes the proposal for an “independent monitor.” Under the proposal, a Governor-appointed independent monitor would be responsible for reviewing grand jury investigations into cases involving the police-related death of an unarmed civilian. The independent monitor would have the power to refer cases to the Governor for the purpose of appointing a special prosecutor when it was found that the district attorney inappropriately declined to prosecute or the grand jury presentation did not conform to the law. In a report prepared with the input of six committees, the City Bar critiques this proposed process as “an after-the-fact solution that is too cumbersome and distant from the time of the grand jury presentation to be of real value.” Since the independent monitor would take into consideration both the witnesses and evidence chosen by the prosecutor to present to the grand jury as well as the prosecutor’s report, it is “likely that the independent monitor’s report will be little more than a justification for the actions taken by the prosecutor,” the report states. “This is particularly so because the independent monitor can recommend a special prosecutor only where ‘substantial error’ creates a ‘reasonable probability’ of an indictment such that the presumption of regularity afforded to such proceedings can no longer apply, or if the independent monitor uncovers newly discovered evidence ‘of such magnitude that there exists a reasonable probability that had such evidence been presented’ an indictment would have resulted.” Furthermore, according to the report, “A two-step process such as that contemplated by Section 1 also creates concerns about the due process rights of police defendants because they would be subject to a system of review separate and apart from every other defendant.” While the City Bar’s committees did not have a consensus as to whether a special prosecutor is necessarily the best way to proceed in cases where unarmed civilians are killed in encounters with police, there was agreement that further study of the possibility is warranted because it may provide an important reform without overhauling the entire grand jury system. Provisions of the proposal which allow a DA to create a grand jury report or issue a public letter also raise some concerns as drafted: “For instance, the legislation suggests that the DA’s explanatory letter explain ‘the basis of the grand jury’s decision to dismiss the indictment.’ This does not accurately reflect the grand jury process: grand juries determine whether there is probable cause to charge a person with a crime by indictment; grand juries do not possess the authority to dismiss indictments. More significantly, as the law currently stands, neither prosecutors nor anyone else has the right or the authority to learn why grand jurors or a grand jury declined to vote to indict, making this part of the proposed legislation impractical. Additionally, by calling these DA reports ‘grand jury reports,’ the possibility of public misunderstanding may be enhanced, since such reports would come not from the grand jurors themselves but from the very DA whose motives will be at issue and therefore still subject to public skepticism.” In addition, creating any carve-out in the grand jury process for police officers is a significant public policy change worth deeper consideration, because, according to the report, “While some would argue that issuing a grand jury report in these cases would assist the public in understanding the evidence (or lack thereof), others are concerned that this kind of legislation would ultimately prejudice police defendants, who deserve the same treatment and due process protections as other defendants.” The report can be read here: http://bit.ly/1xrOpIo