Garner's Grand Jury Files Will Likely Be Sealed Forever, Unlike Those in the Ferguson Case

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Demonstrators react to the Ferguson grand jury announcement.

When St. Louis County prosecutor Robert McCulloch announced on Monday that there would be no indictment in the shooting death of Michael Brown, the news was not greeted warmly.

Demonstrations began almost immediately across the country, and by morning, the city of Ferguson, Missouri, was the scene of a series of arsons and more than 80 arrests. After months of anticipation, that the grand jury had failed to find probable cause to charge Officer Darren Wilson with a crime -- any crime -- seemed beyond belief to many.

About the only part of the announcement welcomed by some commentators was the prosecutor's decision to release large portions of the witness testimony heard by the grand jury. If nothing else, people who wanted answers could look through the hundreds of pages of records and decide for themselves, with the same information the grand jury had seen.

It was an unusual move, to say the least. Both at the federal level and in the states where they exist, grand jury proceedings are, by law, confidential. The witnesses who appear in front of a grand jury and the jurors themselves enjoy total anonymity, and most states, including New York, mandate severe criminal penalties for revealing anything about what goes on behind their closed doors without a court order.

As a grand jury in Staten Island weighs evidence against Daniel Pantaleo, the NYPD officer whose apparent chokehold killed Eric Garner in July, some might expect the actions of the Ferguson prosecutor to be repeated here in New York. A court order could make any or all of the material available rather quickly. What better way to demonstrate transparency, right? In high-profile cases like this, maybe this will become a pattern.

But Bennett Gershman, a former prosecutor who is now a law professor at Pace University, says it would likely be unprecedented in New York.

"It's extremely unusual to see this happen. I have to say, I don't recall ever seeing a D.A. just dump the entire grand jury investigation into the lap of the public," Gershman says.

A spokesperson for Daniel Donovan, the Richmond County district attorney in Staten Island, declined to comment to the Voice about the grand jury proceedings; they've declined to comment on anything related to the case since the body was empaneled in August.

Gershman says his feelings on the Ferguson case are that the prosecution may not have been eager to see Wilson stand trial. If a prosecutor is looking for the grand jury to hand down an indictment, Gershman says, the best way to achieve that is to provide as little evidence as possible -- just enough to show that a crime may have been committed.

"That's not a major surprise," Gershman says, "or a startling insight. People who know the system well recognize that a grand jury is an adjunct of a prosecutor, a tool of the prosecutor. Prosecutors use grand juries for their law enforcement objectives."

But that points up another downside to releasing the testimony: At times, the questioning by prosecutors documented in the Ferguson files -- grand juries hear only from prosecutors; there are no defense attorneys -- reads much more like a skeptical cross-examination than a prosecutor looking for evidence.

Excerpt from prosecutor questioning in Ferguson grand jury files

Opening up the proceedings, Gershman says, could show that the prosecutor was deliberately throwing lots of evidence at the grand jury or deliberately undermining testimony, muddying the waters so they wouldn't indict. "I'm sure there was conflicting evidence [in Ferguson]," Gershman adds -- "then there's the question of whether the jury should have been weighing that evidence."

An attorney for the Garner family, Jonathan Moore, told the Voice last week that he suspected a similar thing was happening in the Garner case. He suggested that the months-long deliberations might indicate that the prosecutor was presenting more evidence than he needed to.

"You have a very prompt decision from the medical examiner; you have the videotape. I mean, you hear him say, 'I can't breathe, I can't breathe.' " Moore said. "For the life of me, I can't figure out why they haven't decided to go ahead."

Releasing testimony may have some political advantages, Gershman points out. It creates a veneer of openness -- a veneer, because it's not entirely clear that every bit of testimony was included in the Ferguson dump -- but also presents some strategic pitfalls. If there were an indictment in the Garner case, releasing the testimony could tip the defense to prosecution strategies and give away information that a prosecutor might be more inclined to hang on to, at least at the outset.

"It's just not the way it's done. You don't do that here in New York State, so it would set a very bad precedent," Gershman says. "Either way, if he decides to do what they did in Ferguson, I think he's going to make a blunder."