Feb 19th - 8:07 am
From the Morning Memo:
The state’s top judge wants to reform what he calls a “relic” of the criminal justice system: grand juries.
In particular, Court of Appeals Chief Judge Jonathan Lippman is calling for new transparency measures when it comes to cases involving police-related deaths of civilians.
And more controversially, Lippman’s bill in those instances would take the process away from local prosecutors and hand it to judges.
In his State of the Judiciary address this week, Lippman painted the proposal as one that helps district attorneys.
“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,” he said.
Lippman repeatedly referred to the current grand jury system as being in need of an update.
“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,” Lippman said.
Not so fast, said Erie County District Attorney Frank Sedita, who also leads the statewide district attorneys association.
In an interview, Sedita took issue with the proposal to have judges reside over such cases, saying such a move is a distinctly European import.
“Our Founding Fathers had rejected that system,” Sedita said.
Sedita questioned Lippman’s criteria for making changes to the grand jury process, which the judge defined in his speech as “cases of significant public interest.”
“As a technical legal matter, I have no idea what that means,” Sedita said.
Overall, the DA’s association is “generally supportive” of Gov. Andrew Cuomo’s criminal justice reform measures, which includes the appointment of a special monitor to consider a special prosecutor in certain cases.
Sedita said he and other district attorneys continue to discuss the reform efforts with Cuomo’s office.
But he also cautioned against wholesale changes.
“The broader issue that’s here is the courts get their legitmacy basing their deicsions on law and facts, and not marrying what they do to the popular will and the popual whim,” he said. “I have never heard of a triggering event of what is popular and what is not.”
Feb 17th - 1:47 pm
The state’s top judge on Tuesday called for a package of reforms to the legal system’s grand jury process, including transparency in cases involving deaths of civilians caused by police officers.
In addition to the transparency measures, Chief Judge Jonathan Lippman called for judges to oversee grand jury proceedings involving cases in which law enforcement has killed an unarmed civilian, not district attorneys.
More broadly, the push for grand jury reform began last year, after a Staten Island grand jury declined to indict a New York City police officer in the choke hold death of an unarmed black man, Eric Garner.
The case, along with a police shooting in Missouri of teenager Michael Brown that led to no charges of a local police officer there, led to a series of protests in cities around the country and a debate over police tactics as well as calls to reform the criminal justice system.
Lippman, in his address inside the state Court of Appeals courtroom before a collection of judges and legal professionals, called the current grand jury process in New York “antiquated.”
The measure Lippman is introducing would apply to cases in which a grand jury has declined to issue charges or return no bill. Testimony of experts and public officials would be made public, while the names of civilian witnesses could be redacted from the record.
Grand jury information could be released in cases in which there is “significant public interest” and that it’s generally known a proceeding is underway.
“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,” Lippman said in his annual address, known as the State of the Judiciary.
Lippman said there are many reasons why a grand jury’s proceedings should be kept confidential including preventing a subject from fleeing prosecution and encourage witnesses who are reluctant to talk.
“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,” Lippman said.
The bill would still have to pass the state Legislature, where Senate Republicans have shown little willingness to take up legislation that would change how grand jury proceedings are conducted.
Democrats in the Senate back the use of body cameras for police, as well as the creation of an Office of Special Investigation to oversee grand jury cases involving law enforcement.
Attorney General Eric Schneiderman has called for a special prosecutor to be appointed in cases of policy brutality while legislation in Albany is considered.
Gov. Andrew Cuomo, meanwhile, has said he would appoint a special monitor in cases in which police officers are not indicted in grand jury cases.
Updated: Schneiderman in a statement called Lippman’s proposals “thoughtful” and said they should further the debate over criminal justice reforms.
“Over the last few months, we have seen an emerging consensus on the need for essential reforms in our criminal justice system and grand jury process to restore public trust and confidence. As he has done so many times throughout his tenure, Chief Justice Lippman today outlined a thoughtful set of proposals that will further our state’s debate. I welcome his remarks, and look forward to working with the Chief Justice, the Governor, and Legislature to pass meaningful reform during this legislative session.”
Feb 9th - 3:06 pm
Updated: The full Senate on Monday afternoon approved the nominations to the Court of Appeals, the third and fourth appointments Cuomo has made to the state’s highest court.
With little drama, the Senate Judiciary Committee on Monday unanimously voted to advance the nominations of Eugene Fahey and Leslie Stein to Court of Appeals to the full Senate.
Both Stein and Fahey are expected to be approved later today.
Judiciary Committee Chairman John Bonacic, an Orange County Republican, was especially effusive in his praise of both nominees, who appeared back to back before the panel.
“I think you have those qualities of being a judge’s judge,” Bonacic told Fahey, a Buffalo-based Appealate Court justice. “I think you will be a judge’s judge.”
He echoed those compliments to Stein, of Albany County.
“I think you’re going to make a great Court of Appeals judge,” he said.
Both Stein and Fahey faced questions from state lawmakers on how they would rule based on the state constitution, as well as questions about the SAFE Act, the administration’s ban on hydrofracking and the 2009 ruling that granted the governor the power to appoint a lieutenant governor in the event of a vacancy.
“I don’t think I’ve ever felt the need to deviate from the letter of the constitution,” Stein said while being questioned by Seneca County Sen. Michael Nozzolio. “Sometimes it’s just not clear what the letter is calling for.”
She added: “I simply view each case with an open mind.”
Stein was first nominated in October after Gov. Andrew Cuomo declined to re-appoint Victoria Graffeo, who was first nominated by Republican Gov. George Pataki.
Fahey, nomniated in December, replaces retired Judge Robert Smith, another Pataki appointee.
Though delayed by several weeks, the nominations of Fahey and Stein saw relatively smooth sailing compared to the Judge Jenny Rivera’s nomination in 2013.
At the time, Republican lawmakers questioned her qualifications for the post. Bonacic went as far as to suggest she had been nominated because Cuomo wanted to add an Hispanic to the court.
In the end, Rivera’s nomination was approved.
Feb 9th - 7:34 am
From the Morning Memo:
Despite being nominated months apart for the Court of Appeals, Gov. Andrew Cuomo’s two pending nominees for the state’s highest court will both appear later today before a Senate Judiciary Committee meeting.
Both nominees are Cuomo’s third and fourth appointments to the court.
Lawmakers will hear from both Leslie Stein, an associate justice of the Appellate Division of Albany, and Appellate Division Justice Eugene Fahey of Buffalo, at its 11:30 meeting.
Stein was nominated to fill the vacancy on the Court of Appeals created when Judge Victoria Graffeo, an appointee of Republican George Pataki, was not re-appointed.
Senate Majority Leader Dean Skelos made a last-minute plea to keep Graffeo, to no avail.
Stein’s nomination was made back in October.It had been delayed by two weeks as the governor’s office cited exceptions in the law for making judicial nominations.
At the same time, Cuomo had wanted to avoid a political fight over the nomination just before an election.
Fahey, meanwhile, was nominated in December to replace another Pataki appointee, Judge Robert Smith, who was required to retire at the end of last year.
Neither nomination is expected to generate much controversy in the full state Senate, which is tasked with approving the nominations.
If he serves out his current term, Cuomo will be able to remake the entire composition of the court with his appointments.
Jan 15th - 2:11 pm
Gov. Andrew Cuomo nominated Appellate Division Justice Eugene Fahey on Thursday to fill a vacancy on the state Court of Appeals, the state’s highest court.
Fahey, a Buffalo resident, has served on the bench for the last 20 years.
“Justice Fahey’s distinguished career, background and years of service on the bench will make him a formidable member of the Court of Appeals,” Cuomo said in a statement. “His two decades of service in city, state and appellate courts give him a broad perspective, and I am confident he will continue in the proud tradition of the Court of Appeals, providing fairness and justice for all New Yorkers. I am proud to put forth his nomination to the State Senate.”
Fahey also presided over the court ruling that tossed a challenge to the legalization of same-sex marriage in 2011, determining the Senate Republicans did not violate the state’s opening meetings law by having a closed-door conference to discuss the issue.
Fahey was first appointed to the Appellate Division, fourth judicial department, by Gov. George Pataki in 2006 and re-designated twice by Gov. David Paterson in 2009 and Cuomo in 2011.
He’s served on the state Supreme Court since 1996 and earlier as a Buffalo City Court Judge from 1994 to 1996.
Fahey received his undergraduate and law degree at SUNY Buffalo.
His nomination fills the vacancy created by Judge Robert Smith, who was required to retire at the end of 2014 based on the court’s mandatory age limit.
Today was the deadline for Cuomo to have made the nomination to fill Smith’s spot on the court.
Fahey was on the short list to fill an earlier vacancy on the court following another Court of Appeals retirement, Judge Victoria Graffeo.
Instead, Cuomo nomination Judge Leslie Stein of the Albany area to replace Graffeo.
The Stein nomination had been delayed so the state Senate would not have to return to Albany to consider approving her nomination.
Fahey is the fourth nomination to the high court Cuomo has made during his time in office.
Cuomo is on track to have nominated all of the members of the Court of Appeals due to mandatory retirements.
Jan 5th - 3:13 pm
The state Court of Appeals today is hearing a case being brought by a family suing New York City after it took the medical examiner’s office months to return the brain of their deceased 17-year-old son.
The case could have an impact on whether the city officials can removed organs from bodies without informing the next of kin.
The case stems from 2005, when teen Jesse Shipley was killed in a car accident on Staten Island in January.
An autopsy was performed at the consent of his father. During that process, Dr. Stephen de Roux removed Jesse Shipley’s brain for further examination.
Shipley’s family later buried Jesse’s body, unaware his brain was still in the medical examiner’s office.
Two months after his funeral, students from Jesse’s former high school took a trip to the medical examiners office and spotted the brain in a jar labeled with his name. The grisly discovery soon made its way back to Jesse’s sister, also a student at the school.
The brain was finally returned in October 2005 to the family, who performed a second burial and funeral service.
When asked about the two-month gap between autopsy and examination of the teen’s brain, de Roux testified that it was not uncommon.
“I wait months, until I have six brains,” he said according to court documents.
The family is suing the city based partially on the common-law right of sepulcher, allowing next of kin the right to a deceased’s body for preservation and burial. The family also points to a section of the public health law that requires a loved one’s remains be turned over for proper burial “once the legitimate purposes for the retention of those remains have been fulfilled.”
An initial trial awarded the Shipleys $1 million, but a subsequent ruling reduced it to $600,000.
The city argues neither the right of sepulcher or the public health law applies.
“It follows that the legitimate purposes for the retention of the parts have been fulfilled,” the city has argued in court, adding that the medical examiner was under no requirement to inform the family when organs are removed for special examination.
Dec 5th - 3:07 pm
Two state lawmakers from Staten Island will push for reforms to the state’s grand jury proceedings that will be aimed at requiring more information on their deliberations be released.
Democratic Assemblyman Matt Titone and IDC Sen. Diane Savino announced in a joint statement on Friday afternoon they plan to pursue the changes, which come after a grand jury in their home borough voted to not indict NYPD officer Daniel Pantaleo in the choking death of Eric Garner stemming from a July incident.
“There is no reason the public should be denied the opportunity to view information presented after the Grand Jury has made its final recommendations,” Savino said in a statement. “Whenever you have a case like that of Eric Garner, it is important that people can still trust in the legal system. The only way to do that is with complete transparency of the facts presented.”
The legislation would be aimed at allowing district attorneys to unveil information grand juries considered, including evidence and testimony. The measure would still include confidentiality protections aimed at individual jurors.
The grand jury’s decision this week has set off a wave of protests across the county as well as in New York City.
The case is under review by the U.S. Department of Justice and an internal NYPD investigation.
Staten Island District Attorney Dan Donovan on Wednesday petitioned the courts to release more information pertaining to what the grand jury heard in the Garner case.
The court agreed to a limited release of information, detailing only how long the grand jury sat for, how many witnesses gave testimony and how many exhibits were entered into evidence.
No details were provided as to what specific evidence was examined or the identities of the witnesses along with what information they told the jury.
Gov. Andrew Cuomo has raised the possibility of grand reform changes as well, suggesting he would also be open to requirements that a special prosecutor be appointed in such cases.
In announcing the planned legislation, Titone said the Garner case “clearly demonstrates” the need for changes in how grand juries operate.
“We recognize and fully appreciate the need to protect witnesses and jurors in the Grand Jury process, however the public trust and confidence in our justice system must be addressed and reforms implemented,” Titone said. “The Eric Garner case clearly demonstrates this.”
Dec 4th - 2:49 pm
A Staten Island judge on Thursday approved a limited release of information detailing the grand jury proceedings and investigation into the death of Eric Garner at the hands of a New York City police officer.
The court revealed that the grand jury sat for nine weeks, and heard 50 witnesses give testimony, 22 of whom were civilians. The rest were police, emergency medical personnel and doctors.
The grand jury also was present with 60 exhibits entered in evidence, which included four videos, records on NYPD policies, medical records on Garner’s treatment and autopsy photographs. Records related to NYPD training were also made available.
No details were provided as to what specific evidence was examined or the identities of the witnesses along with what information they told the jury.
Judge Stephen Rooney wrote in his decision that while the proceedings of a grand jury in state law should continue to be considered confidential, trust in the criminal justice system has been shaken by the decision to not indict Officer Daniel Pantaleo in Garner’s death.
“It is from this vantage point that a limited incursion into the sacrosanct principle of grand jury secrecy is deemed necessary to serve overarching public interest,” Rooney wrote in his ruling.
At lengthy, Rooney in his order wrote the confidentiality of grand jury proceedings not be infringed. However, the Garner case warranted what he considered a special consideration.
“Somewhat uniquely in this matter, the maintenance of trust in our criminal justice system lies at the heart of these proceedings, with implications affecting the continuing vitality of our core beliefs in fairness, and impartiality, at a crucial moment in the nation’s history, where public confidence in the even-handed application of these core values among a diverse citizenry is being question,” Rooney wrote.
Staten Island District Attorney Dan Donovan said in a lengthy statement released on Wednesday that he was seeking the court order to release details on the grand jury proceedings following the vote to not indict Garner.
Gov. Andrew Cuomo indicated earlier today he would seek changes to the grand jury process, including potential transparency provisions.
Dec 3rd - 3:05 pm
From our colleagues at NY1:
Sources tell NY1 there will be no indictment in the case against a police officer shown on video putting a fatal choke hold on Eric Garner in July.
The State Island grand jury determined that Officer Daniel Pantaleo will not face any charges in the case.
The medical examiner later concluded the choke hold was the cause of death.
The grand jury’s decision comes several weeks after a Missouri grand jury decided to not charge Ferguson Officer Darren Wilson in the shooting death of Michael Brown.
The NYPD had been making preparations in the lead up to the decision in the Garner case regardless of the outcome.
“I think that there will be an ability that people will get to have their voice heard without disturbance. We, on the other hand, on the police side, will naturally gear up to deal with any potential contingency that might occur,” Commissioner Bill Bratton told reporters on Tuesday.
Sources told NY1 the grand jury has been meeting twice a week up until this point.
Updated: Some reaction is already coming in to the decision.
Assemblyman Karim Camara, the Brooklyn Democrat who chairs the Black, Puerto Rican, Hispanic and Asian Legislative Caucus said the lack of an indictment is an “outrage.”
“However, it’s important that we first remember that Mr. Garner’s life was lost and even an indictment would not have brought him back. Our thoughts and prayers should be with his family today,” he said. “The failure on Staten Island to indict, unfortunately, continues a pattern in New York City where people of color are policed differently than whites, often to the point of harassment or violence. The lack of indictment, even with the video evidence that New Yorkers have watched in horror, is yet another example of New York City leading the nationwide revival of occupation style policing that was so prevalent in the Jim Crow South.”
PBA President Pat Lynch, meanwhile, said that while the union is pleased with the outcome, there “are no winners” in the result.
“There was a loss of life that both a family and a police officer will always have to live with. It is clear that the officer’s intention was to do nothing more than take Mr. Garner into custody as instructed and that he used the take down technique that he learned in the academy when Mr. Garner refused. No police officer starts a shift intending to take another human being’s life and we are all saddened by this tragedy.”
Pantaleo also released a statement through the PBA.
“I became a police officer to help people and to protect those who can’t protect themselves,” he said. “It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”
Nov 5th - 7:42 pm
It’s about 8:30 p.m. and supporters of Congressman Michael Grimm are trickling into a large ballroom at the Hilton Garden Inn on Staten Island, taking their seats at tables draped with white linens and adorned with small American flags.
A color guard marches in. They pledge allegiance to the flag.
Fast forward a few hours, you have a crowd cheering around a bar and an aide to the congressman taking the stage — not necessarily in that order. The aide at the live mic invites the remaining Grimm supporters to join him at the bar for some “f—ing shots!”