Jonathan Lippman, Chief Judge of New York’s Court of Appeals, got nationwide press
with his recent address
on the state of New York’s judiciary. He proposed, in that address, to increase the role of the judge in the grand jury process, at least in cases where civilians have been killed by police officers.
The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and – given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to “indict a ham sandwich” – it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline “A grand jury could ‘indict a ham sandwich’, but apparently not a white police officer.”)
To quote Judge Lippman (at page 2 of the State of the Judiciary address):
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.
To counter this ‘perception’, Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,
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.
In order that justice not only be done, but ‘be seen to be done‘, the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.
The state’s prosecutors seem to have been stung by Judge Lippman’s remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that “I haven’t talked to any of my colleagues, but I can’t imagine any of them are going to look at that say that it is a good idea” [sic].
According to Mr. Carney, “it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses.” He points out that “they’re not prosecutors.”
This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury – and of the role the prosecutor should have in it.