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Cops, secrecy, and the grand jury 

When two city cops shot 14-year-old Craig Heard to death last month, did the Rochester Police Department conduct a thorough, unbiased investigation?

            As the grand jury deliberated whether the officers' actions were justified, did the District Attorney's office present the evidence thoroughly and fairly?

            The grand jury decided not to indict the officers, and afterwards, Police Chief Robert Duffy and District Attorney Howard Relin assured the public that the case was handled competently. Local civil rights leaders and other citizens just have to take their word. The way New York's criminal-justice system works, the public isn't likely to ever see details of the case.

            Under state law, testimony presented to a grand jury is kept sealed if the jurors decide not to indict the defendant. The law is intended to protect witnesses and falsely accused defendants. But the secrecy can generate distrust.

Relin wants to change that. He wants district attorneys to be able to release grand jury testimony in cases involving "unusual situations," such as possible criminal misconduct by police or public officials.

            The secrecy of grand jury proceedings keeps the public in the dark about two key aspects of a case, says Relin: the cops' investigation and the DA's presentation of the evidence. "By releasing this information," he says, "you give the community the opportunity to look at both aspects of any case of this type, and decide in their own minds if the conduct was justified."

            But critics of Relin's proposal say giving the DA discretion to make grand jury testimony public is letting the fox guard the henhouse. If people suspect that law enforcement is protecting one of its own, they ask, why let a member of the law-enforcement community make the decision about grand jury proceedings?

            Relin's proposal is "absolutely ludicrous," says local defense attorney Ed Fiandach. Under Relin's plan, Fiandach says, "you're putting the decision on lifting the veil of secrecy on the same people you might want to investigate."

Prosecutors have enormous power in grand jury proceedings. They decide what evidence and testimony the 23-member jury will hear. The jury can request more evidence, but the prosecution is under no legal obligation to comply. Defendants can testify on their own behalf and consult with their attorneys in court, but the defense cannot argue its side unless and until the case goes to trial.

Thus, says Fiandach, if the DA's office didn't want a police officer indicted, it could simply "present a minimum of evidence and hide behind the secrecy."

            Fiandach thinks the presiding judge should have the ultimate authority to make the proceedings public --- whether the DA's office likes it or not.

            "I don't have a problem with that at all," Relin says. And Relin says his proposal would also allow citizens to petition for disclosure if the public's trust is at stake.

            Relin acknowledges that "in some ways, [that decision] has to be subjective." But, he says, "it's pretty clear when cases fall into this category of public notoriety and public concern over the fairness of the process."

            Relin says he's working with Chief Duffy "to figure out what information is relevant to the community that wouldn't compromise what went on in the grand jury, but at same time give an account of what occurred."

            Local defense attorney Donald Thompson questions the wisdom of tinkering with a legal construct rooted in English Common Law. And he wonders whether Relin is proposing the measure "for self-serving means."

            "If it's just an opportunity for the DA to say to the public, 'Look, we did a great job; stop criticizing us,'" says Thompson, that's not a legitimate interest.

Fiandach and Thompson suggest removing the DA from police misconduct cases altogether. If an independent prosecutor, rather than a representative of the DA's office, handled those cases, that would "remove a lot of doubt as to how the case was presented," Fiandach says. "The real protection of the community comes from an independent prosecutor, not from opening the record later."

            Relin's not willing to go that far. He says independent prosecutors lack accountability, because, unlike the DA, they're not elected by the public. And, he says, "look at what we've seen in Washington." Independent investigations at the federal level, he says, have been "almost a total waste of millions of dollars of public money." An independent prosecutor could "milk the case" for several years, he says, while making hundreds of dollars of public money an hour.

            "I have very strong feelings that's not something really valuable," he says.

            Thompson, a member of the panel of local attorneys qualified to serve as independent prosecutors, disputes Relin on both counts. An independent prosecutor would be appointed by the presiding judge and Relin himself, says Thompson. As a result, he says, an independent prosecutor "would be responsible to the public" through the DA's office.

            And the person chosen as the independent prosecutor is "certainly not going to be someone who's spending millions of dollars," Thompson says. Since potential prosecutors have to pass a judge's muster, he says, the choice would be "someone well known and well respected and non-controversial."

            Relin recently met with other district attorneys in the state and found broad support for his proposal. He says the group agreed to put grand jury reform on its legislative agenda this fall.

            In a situation like the Heard case, Relin says, "I think all the district attorneys would want all the information released."

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