Motion to Unseal
THURSDAY, FEBRUARY 05, 2015

Tina Luongo, the Attorney-in-Charge of the Criminal Defense Practice of The Legal Aid Society, issued the following memorandum to Staff regarding the release of Grand Jury transcrips in the Eric Garner case.

Today, LAS argued before the Court for the release of the Grand Jury transcripts, evidence and charges in the investigation into the death of our client, Eric Garner. Today’s argument was the culmination of months of effort that started on December 4, 2014, the day after the grand jury returned no true bill as to Police Officer Daniel Pantaleo’s killing of Eric Garner.

The Legal Aid Society was the first to challenge the secrecy of the proceedings by motion filed by Chris Pisciotta (Attorney-in-Charge of the Staten Island Office of the CDP). . Over the following months, our colleagues would file supplemental motions, memorandum of law and reply briefs in an effort to pierce the secrecy of the grand jury to bring to light the inherent bias present when prosecutors are asked to prosecute a member of their team, an on duty police officer.

Over the last 15 years, only 3 police officers were ever charged with a criminal offense arising from over 179 killings of civilians. As we all know, prosecutors treat police officers differently and the investigation into the death of Eric Garner is the most obvious example. The District Attorney possessed video clearly depicting the police officer strangling an unarmed black man as he gasped for breath. Witnesses came forward describing, consistent with the video, how Eric Garner did not resist or fight with the police before the forceful choking leading to his death. And, the Medical Examiner concluded the death was a homicide arising from the chokehold and pressure about the neck, chest and back. With this type of publicly available evidence, our clients would be arrested, fingerprinted, arraigned, bail set and indicted in less than a week. For PO Pantaleo, the process was dramatically different. He was never arrested, photographed, fingerprinted, arraigned and bail set. The prosecution took 9 weeks to present over 50 witnesses, mostly non-civilians. Police officers came to testify regarding police training, policy, and procedure. Over 60 exhibits were submitted. This massive presentation is nothing we see on behalf of our clients and it resulted in the prosecutor obtaining a no true bill.

Under the law, the petitioner must first establish a compelling and particularized need for the grand jury transcripts before the Court will consider entering into a balancing test under DiNapoli of the public need for secrecy against the need for secrecy in the Grand Jury. Chris Pisciotta argued that, as the primary public defender of New York City, we, and the Staten Island community, require disclosure in this unique case to analyze the fairness of the process when a police officer, a member of the prosecution team, is investigated. With no criminal charges brought, there is no other proceeding and no other manner to learn whether the inherent bias of a prosecutor came to life behind the door of the Grand Jury. This is especially pertinent when the DA obtains a result in stark contrast with the publicly available evidence.

The Court, then, should proceed to balance the interests of secrecy against disclosure. Here, where no criminal proceeding was ever brought, many of the factors favor disclosure: (1) there is no risk of flight of the target; (2) no risk the target will intimidate grand jurors; and (3) no risk the target will tamper with witnesses at trial. Moreover, after having his attorney give an interview to NY Times regarding the nature of his testimony before the Grand Jury, any interest of PO Pantaleo in secrecy was undermined by his own actions. Finally, the DA argued that disclosure of the Grand Jury transcript would lead to future witnesses being uncooperative, intimidated and possibly injured or killed by targets of future grand jury presentations. Such fear mongering and unfounded speculation cannot override the community’s need to know.

The Court, Hon. William Garnett, provided an active bench during the 3 hour argument.

Thank you to Chris Pisciotta, Rich Joselson, Michelle Fox, David Crow and Natalie Rea in the preparation of the written papers and sharpening of the oral arguments.

Today, we did what we do best and what we do everyday- stand up and fight for our clients and the communities we serve. Regardless of the outcome, it was a proud day for LAS.

We will update everyone once we learn of the judge’s decision.