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February 28th, 2015
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Annual State of the Judiciary Address – Remarks Delivered by NYS Chief Justice Jonathan Lippman – Part 1

Annual  State of the Judiciary Address – Remarks Delivered by NYS Chief Justice Jonathan Lippman – Part 1

ACCESS TO JUSTICE IS THE DEFINING PRINCIPLE OF OUR COURT SYSTEM. It manifests itself in so many diverse ways in over four million civil, criminal, and family proceedings in court houses across New York State. Access to justice means ensuring that litigants have meaningful representation when their liberty or the very necessities of life are at stake. Access to justice is the issue when citizens struggle to understand our justice system and the judicial process is hidden from view. Access to justice is also front and center when rich and poor, the privileged and the disadvantaged alike seek a level playing field before the courts, and it is what victims want when they enter the halls of our courts desperately seeking assistance. And access to justice is the driving force behind the court system’s determination to secure the resources necessary to meet our constitutional mission of fostering equal justice.

Access to justice means that everybody —regardless of race, ethnicity or orientation, irrespective of wealth or poverty, whether we are mighty or weak —each and every one of us gets his or her day in court. Equal justice, that defining principle of our country, requires that every human being has access to the courts and a judicial system where the scales of justice are exquisitely balanced.

GRAND JURY REFORM

IN THAT CONTEXT, I START TODAY with a subject that has transfixed our justice system and the public over the last months in New York and nationwide — the crisis emanating from deadly police-civilian encounters and the grave dangers faced by those who protect us on a daily basis on our street corners and in our communities.

As Chief Judge, it is not my role to defend or decry a particular grand jury decision. But the grand jury is a vital component of our judicial system — under the law, it is a part of the court and an institution for which the Judiciary is ultimately responsible. Of immediate concern are the perceptions of some that prosecutors’ offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters. Such perceptions, while broad brush, clearly can undermine public trust and confidence in the justice system. Let’s face it. Able and dedicated prosecutors and the grand jury process cannot win in these inherently incendiary situations. Damned if you do and damned if you don’t, no matter how strict the adherence to fairness and the rule of law.

To me, it is obvious that we need significant change in grand jury practices and protocols in the world we live in today. Governor Cuomo and Attorney General Schneiderman have generated extensive debate by proposing that these cases might be handled by a special prosecutor, albeit under different circumstances and at different stages of the process. But what I propose today are solutions to this problem that directly follow from the fact that, under the law, it is the court that oversees the grand jury and its protocols.

First, I am submitting legislation 1 that will require that grand jury proceedings, in cases involving allegations of homicide or felony assault arising out of police-civilian encounters, be presided over by a judge. While judges currently provide very general “supervision” of grand jury proceedings, that role now merely entails providing only preliminary legal instructions to the grand jury and occasionally ruling on contested legal issues that arise. In this category of cases, I am proposing that a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.

This puts the ultimate responsibility for the grand jury where it belongs — with the court, and it largely removes any negative perceptions about the grand jury process in these cases of great public interest. We must also address another highly debated issue, the secrecy of grand jury proceedings — and the legislation I submit will do just that. The strict secrecy of grand jury proceedings — originating in medieval England and mandated in New York by statute — can be detrimental to access to justice and public debate over issues of compelling public interest.

Grand jury secrecy is based on several grounds: to prevent tampering with the grand jury’s investigation; to prevent the subject of the investigation from fleeing to avoid prosecution; to encourage reluctant witnesses to cooperate; and to protect those who are not indicted. While these are all laudable reasons for secrecy, they do not justify the breadth of the current law that bans virtually all disclosure, and although nominally allowing a court to grant disclosure, provides no guidance as to when to do so.

When a grand jury indicts, the normal rules granting public access to court records are generally adequate to ensure an informed public debate about the handling of the case. Moreover, discovery rules in criminal matters precisely regulate the disclosure of evidence during the pendency of a case. But in cases where a grand jury votes not to bring charges — where no true bill emerges — the public is left to speculate about the process, the evidence, the legal instructions, and the conclusions drawn by the grand jury. In cases of significant public interest, secrecy does not further the principles it is designed to protect but, in fact, significantly impedes fair comment and understanding of the court process.

I am therefore proposing that we lift the veil of secrecy of these proceedings, without compromising the historical justification for secrecy. The legislation I propose today would create a crystal clear statutory presumption in favor of the court disclosing the records of a grand jury proceeding that has resulted in no charges, in cases where the court finds that the public is generally aware that the matter is the subject of grand jury proceedings; the identity of the subject of the investigation has already been disclosed or the subject consents to disclosure; and disclosure of the proceedings advances a significant public interest.

Upon such a finding, the court will be authorized to disclose the record of the proceedings, including the charges submitted to the grand jury, the legal instructions provided in support of those charges and, critically, the testimony of all public servants and experts. The prosecutor would have the opportunity to redact testimony that would identify a civilian witness and to move for a protective order upon a showing that disclosure would jeopardize an ongoing investigation or the safety of any witness.

These two legislative steps I have outlined — requiring an active, physical judicial presence in grand jury proceedings investigating potential homicide or serious assault arising out of a police-citizen encounter, and ending grand jury secrecy as we know it — will enhance public access to, and confidence in, the justice system. This in turn will help preserve the integrity of the judicial branch, law enforcement, and the institution of the grand jury — in many ways, a relic of another time that must be modernized and updated to meet the complex challenges of today’s justice system.

 

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