The murder of two NYC police officers by a black man to avenge the death of two black men at the hands of the police is the latest tragedy in a recent deterioration in race relations in this country. The rhetoric has been heated over the last few weeks between the politicians, the protestors, the police unions, and the press. The root causes of the tensions between the police and the minority community are many and complex and not easily solved. But where does all this rhetoric get us? Where do we go from here? Are there any rational reforms that can be made?
The sparks that lit the recent fire were the decisions of the grand juries not to indicted the police officers in the Michael Brown and Eric Garner cases. In both cases there were claims of an inherent bias that the prosecutors who presented the cases to the Grand Jury have in favor of the police officers they work with everyday. Any “no true bill” therefore becomes suspect. There have been calls for an independent prosecutor in such cases.
In New York, Attorney General Eric Scheiderman has suggested that he should be that independent prosecutor. This is a terrible idea on many levels. In general, we do not want an Attorney General who is subject to the political pressures of facing the electorate every 4 years to be deciding cases based upon political winds, not the rule of law. Such a structure would lead to mob rule with facts decided based on the volume in the public square rather than the facts presented in a courtroom. A Special Prosecutor’s Office, as we have seen in the past, is also subject to the same politics in selection and decision-making, and is ultimately second-guessed by the public.
The answer is the Appellate Division. The Appellate Division in the State of New York was established under the New York State Constitution to be both the first court of appellate review and a court with certain de novo review powers meaning it can return cases to lower courts and other government entities for further fact-finding.
A rational reform would require any Grand Jury proceeding involving the death of a citizen at the hands of the police to be immediately reviewed by the Appellate Division. Normally, once a “no true bill” is voted, the case is over and not appealable. As we have seen, such a “no true bill” leads to these calls of a conflict in interest between the prosecutors and the police which in turn can remain to simmer with no adequate channel for review or redress. Under this proposal, the case would be presented by the District Attorney’s Office to a Grand Jury and immediately reviewed by the Appellate Division before a final decision either way can be delivered. If the Appellate Division deems necessary, the case can even be sent back for further fact finding or different instructions on the law.
The Appellate Division courts in New York State are courts in which a five judge panel reviews the evidence and the law and either upholds or overturns the lower court, or in this case the Grand Jury’s decision. The judges of the Appellate Division are judges serving 14 year terms and then chosen for the Appellate Division after going through a judicial screening committee and being referred to the Governor for selection. These are the most experienced judges in the state and are much more removed from the political process than the Attorney General. The Appellate Division is therefore much more likely to decide cases based upon the facts and the law rather than politics.
John Verni is host of “Stuck in the Middle”, a local radio show on WVOX discussing politics from “middle of the road.” John is an attorney, a former assistant district attorney in Westchester County, and a senior legal correspondent for WVOX.