by Matt Taibbi
Those two unique factors, he went on, were the fact that the crime was on video and that the district attorney himself had already broken the seal of grand jury secrecy.
Garnett interrupted him. “Did the DA ask for testimony to be released or ask for permission to give a summary of the scope of the grand jury investigation?”
Brinckerhoff answered back: How should I know? Donovan’s application to Judge Rooney had been made under seal.
“As far as I know, that has not been disclosed to anyone,” Brinckerhoff went on. “I have never seen the application.”
Garnett reddened. If he’d even read the news stories about the case, he should have known that. There were a few whispers to that effect in the back of the courtroom.
The judge glanced in the direction of the murmuring, then refocused on Brinckerhoff, who by then was in the middle of arguing that the Garner case presented “unique and compelling circumstances that get us past the threshold question.”
Garnett snapped awake and interrupted again. Yes, he said, this case is compelling. But that’s not the issue here. The issue is, what’s your client’s particularized interest in this case? Why should the public advocate get to look at this material?
Brinckerhoff wrestled with the judge, trying to convince Garnett that the public advocate had a “particularized” interest because, for instance, she had the power to introduce legislation to correct a problem discovered in the grand jury.
The judge wasn’t impressed. What legislation would she introduce? Specifically? And why does she need to get the grand jury minutes to do so?
Brinckerhoff fought back, reminding the judge that the district attorney had obtained permission to release information for the sake of reassuring the public and that the public advocate had the same interest and responsibility “as a government official who is interested in these issues and wants a full record.”
Garnett didn’t seem convinced and kept asking what was Brinckerhoff’s best argument for a “compelling and particularized need,” a phrase that was already eliciting frowns in some parts of the courtroom.
The lawyer tried over and over again to talk about the urgent general interest in finding out what was rotten in the case, noting that “it is very atypical for the grand jury to sit for this many witnesses in any case, any case at all, or to be provided presumably large reams of material. Usually a prosecutor focuses only on inculpatory evidence.”
Garnett again interrupted. “Isn’t that something in favor of the DA?” he asked. “Instead of just focusing on the inculpatory, isn’t that the DA’s duty to be fair?”
This line led to more whispers in the back of the courtroom. The judge’s line about Donovan not just “focusing on the inculpatory” seemed to imply he might also have focused on the exculpatory, which was exactly what everyone suspected. That the judge didn’t see the problem with that was very odd.
And what did he mean by “fair”? Since when did prosecutors worry about being fair to people they were trying to indict? The prosecutor, after all, has the power to not present a case to a grand jury at all. If he thinks an indictment isn’t “fair,” he doesn’t have to try for one.
But if he does think it’s fair, then what is he doing presenting exculpatory evidence? The whole thing was strange.
Brinckerhoff concluded by trying to explain to the judge that there was a widespread belief, not just in New York but nationwide and worldwide, that there was a conflict of interest in Staten Island. He insisted that a district attorney who works regularly with the police cannot be trusted to investigate the police.
A former Staten Island prosecutor, Garnett stiffened at this. He interrupted Brinckerhoff to ask if he was talking specifically about Staten Island. “You seem to suggest that this was unique to this county, and not to other district attorney’s offices,” he snapped.
Brinckerhoff had stumbled onto one of the most pressing fixations of Middle American thought. You could reduce an enormous quantity of the content on Fox News and afternoon talk radio to a morbid national obsession that could be summarized on a T-shirt: Are you calling me a racist?
Brinckerhoff had not, in fact, made any such accusation with regard to Staten Island in particular. But the judge had taken it that way, which indicated a belligerent sensitivity—or bias—that might have been worth exploring in open court.
Instead, Brinckerhoff hastened to reassure Garnett.
“No,” he said, in response to the question about whether his complaints were unique to Staten Island. “And I apologize if I left that impression because that is not at all what we’re saying. The distinction—”
“I have your argument,” snapped Garnett. “Thank you very much. We’ll move on now.”
The Brinckerhoff exchange set the pattern for the entire day. Each successive lawyer would stand up and explain to Judge Garnett the very good reasons why the grand jury records should be opened, why this was in the public interest, and why it was particularly appropriate given the fact that the district attorney himself had already done the same thing.
And in each case, the judge kept shooting them down, mainly by asking the attorneys what their compelling and particularized need was.
Each lawyer would make a valiant and wordy effort to show such a need, but the judge mostly yawned the whole way through.
When Pisciotta of Legal Aid began his presentation by noting again that Donovan had “conceded that the public needed to know what happened behind the doors of the grand jury,” Garnett cut him off immediately.
“Put that aside, what is the Legal Aid Society’s compelling and particularized need to have these grand jury minutes?” he asked.
Pisciotta began by saying that his office had represented Eric Garner, which the judge liked, because that was very particular. But the more he parried with Pisciotta, the more it came out that Legal Aid, like the rest of the petitioners, was basically hoping to get to the truth so that the public could know what had happened.
PISCIOTTA: What we’re asking is this community, the Staten Island community, be aware of what happened behind the Grand Jury doors so that they—
THE COURT: You’re telling me, you’re here on behalf of the community?
The community was everyone, and by definition, everyone couldn’t have a particularized need. Garnett didn’t seem impressed.
Art Eisenberg of the NYCLU came next, and at first, it sounded like he was coming with similar arguments. He talked about the need to inform the public and then mentioned also that opening the Garner grand jury proceedings was necessary in order to have a broad public conversation about grand jury reform.
The judge appeared to move just a hair above absolute boredom with these arguments, but he was jolted awake when Eisenberg hit him not with pleading rhetoric, but with a piece of clever lawyering.
Eisenberg brought up a 1983 case involving a request by the district attorney of Suffolk County to open up grand jury records involving an investigation into corruption in a county sewer project.
Judge Jacob Fuchsberg ultimately denied the DA’s request to unseal the grand jury proceedings, but Eisenberg noted that in Fuchsberg’s opinion, the key issue was whether the DA could have gotten the information he needed somewhere else.
“As we read it [in] Judge Fuchsberg’s decision in the Suffolk County case,” Eisenberg offered, “particularization refers to the issue of whether the information is otherwise available through some other source.”
Garnett was obviously concerned:
THE COURT: The word particularized, you say in Suffolk, was interpreted to mean the unavailability of any other source of the material?
MR. EISENBERG: Correct.
THE COURT: As opposed to a nexus between the movant and the material?
Correct, said Eisenberg.
The judge seemed rattled. He was in lawyer hell, relying upon a definition of “particularization” that required a “nexus,” and here was some attorney blithely telling him he could have particularizatio
n without a nexus. Anarchy!
The two lawyers talked a little bit longer about whether or not a nexus was required and whether one existed in this case.
Then they moved on to the question of the five “DiNapoli factors.” Apart from the compelling and particularized need standard, DiNapoli had also outlined five reasons grand jury records needed to be kept secret.
These included things like the prevention of flight by a defendant about to be indicted, the protection of an innocent from unfounded accusations, the assurance to witnesses that their testimony will be kept secret, and so on.
To disclose any information from any grand jury, a judge needed to be convinced that none of these five DiNapoli factors existed. More hurdles.
Eisenberg dutifully went through and explained why the Garner case passed this test, slogging through each of the five DiNapoli factors, a subject that held the judge’s keen attention.
Meanwhile, the Garner family struggled to stay awake. Erica, seated behind the lawyers, rolled her eyes. This hearing was drifting further and further from the story of her father’s death. Forty-five minutes in, it had devolved into something very like a discussion in a foreign language, with two lawyers blabbering about nexuses and particularization and the fifth DiNapoli factor.
Eisenberg, meanwhile, looked relieved. He’d covered all the bases, steaming through the whole DiNapoli test and even seeming to dent Judge Garnett’s faith in particularization.
Still, his whole argument in the end was really the same one made by the other lawyers: we need to open the proceedings so we can find out what happened. He finished with a quote from Justice Brandeis, who said, “Sunlight is the best disinfectant.”
Pausing, he looked up at Garnett. “We urge the court to cast some sunlight on these proceedings.”
Schary, the Post lawyer, also did her best, insisting that the newspaper, too, had a nexus, and a compelling and particularized need, and didn’t upset any DiNapoli factors, and so on.
Garnett looked at her with dead eyes. In his final analysis, Schary represented a newspaper that was after some copy that would smear Staten Island. An unimpressed Garnett basically asked her if her particularized need was to do a big story.
“You could do a ten-part series,” he quipped.
Schary stared back, mute for a moment.
—
That left Meyerson.
When called, the bespectacled NAACP lawyer shuffled to the lectern and paused, the way an actor does before jumping into character. And he did seem to physically jump into his argument.
Meyerson’s courtroom persona is a weird, physically dynamic, herky-jerky sort of performance art. He turns this way and that, and his grandiose delivery vaguely recalls an outpatient playing a pipe organ. He took a deep breath and began.
“Thank you, Your Honor,” he said. “Let me start out last, but not least. Let me try and start out from the beginning, so that we don’t drown in the abstractions of law, as the abstractions can drown us.”
There was no mistaking Meyerson’s point, which seemed aimed at the other attorneys behind him as much as at the judge: You’ve all been making legal chit-chat. Let’s focus on what we’re actually talking about.
One could feel the discomfort emanating from the front of the room, where the lawyers sat.
“This case didn’t start today,” he began. “It started on July seventeenth, when an unarmed African American man was choked to death by a group of white New York City police officers, one of whom was Officer Pantaleo.”
There was some nodding among the family members.
Meyerson went on: “At that point, there was an audio recording and video recording in which that African American man was crying out for help, if you will,” he said.
“When he said, ‘I can’t breathe,’ that’s another way of saying, ‘Help me.’ And nobody, none of those white police officers standing around, did anything. And the white police officer continued to choke him, as the video shows, and then brought him to the ground with the assistance of the other white police officers and compressed his chest.”
Meyerson went through all the familiar elements: that the medical examiner had ruled the death a homicide, blaming both a chokehold and a compression of the chest, that chokeholds had long ago been banned by the NYPD, and that there were widespread calls for Dan Donovan to recuse himself.
This, he said, was because there was “a perception, a belief, even if wrong, a very deeply held perception and belief by segments of the community, largely African American, that fairness and justice could not be achieved.”
That segment of the community, he said, believed that accountability was impossible if Donovan proceeded, because “the police officers involved are members of his prosecutorial family.”
Garnett was playing along so far. When Meyerson mentioned that Governor Andrew Cuomo had refused requests to name a special prosecutor in the case, Garnett parried back, asking him if a special prosecutor would have gotten a different result.
Meyerson shrugged. He didn’t know. He told the judge that he couldn’t stand there and say that an independent prosecutor would have gotten an indictment. What he could say is that lots of people would have felt a lot better if there had been a special prosecutor.
Punctuating his argument with large, controlled gestures, Meyerson reiterated that there’s always a problem when local law enforcement is asked to investigate their own.
“They are members of that prosecutorial family,” he said, again invoking a metaphor of kinship, and then looked straight at the judge. “Just as you are a member of, not the prosecutorial family, but the criminal justice system in this county.”
Garnett bolted upright in his chair, immediately uncomfortable.
“Maybe I should have started at the beginning,” Meyerson said, as the courtroom filled with whispers.
“We’re asking that you disqualify yourself and this court itself be disqualified. That you refer to the presiding judge of the Appellate Division, or Judge Lippman, as the chief administrative and chief judge of the state, and ask that this case be reassigned for the purposes of this proceeding…”
There was a hush, and then murmurs all through the court. Meyerson went on:
“…which didn’t start today. It started a long time ago.”
Meyerson’s argument was: Screw the law, screw the DiNapoli standard, and screw your particularized need. This court is illegitimate and Your Honor is illegitimate.
A local newspaper reporter would later compare this moment to Al Pacino’s celebrated “You’re out of order! You’re out of order! The whole trial is out of order!” speech from …And Justice for All.
Garnett flushed to his roots after being called out in his own courtroom by an NAACP lawyer.
“Where do I fit in this perception?” he stammered. “Aren’t you just prejudging the district attorney and aren’t you prejudging me?”
“If you’re asking me, am I asking you whether you could be fair, that’s an irrelevant question,” Meyerson snapped. “I don’t know. I’m assuming you can. I’m assuming you can. It is immaterial to the equation, if you will, if there exists within a large segment of the community a belief that because of your relationship with the criminal justice system, in Richmond County, that you can’t be fair, whether you can or not.”
Garnett had done his homework about all the cases pertaining to section 190.25 (4) of the Criminal Procedure Law. He had an answer for every volley each of the other attorneys had thrown at him when it came to the strictly legal question of how and when and under what circumstances a grand jury’s minutes may be made public.
But the judge was momentarily speechless when the hearing turned in the direction of his own legitimacy.
Meyerson wasn’t accusing him of being biased, just saying that lots of people in Staten Island might think he was simply because he was part of what was perceived to be a racist county’s racist system of justice. Meyerson’s argument was that for the African American c
ommunity to be satisfied in this particular case, they needed a different judge, which made perfect sense and really had nothing to do with Garnett personally.
But Garnett, unsurprisingly, took it personally. The judge now set out to defend his honor, rather than argue the issue at hand, which was whether or not the community was entitled to an impartial hearing.
“I’ll tell you right now, the vast majority of my career has not been in this county,” said Garnett, sounding wounded.
“But you are sitting here,” retorted Meyerson.
“I sat as a judge mostly in Kings County, in Brooklyn,” he said.
The line “as a judge” was telling: he was taking care not to mention to the courtroom that he’d been a prosecutor in Staten Island for nine years.
“I’ve only been here since November,” Garnett went on.
The significance of this moment was that rather than a lawyer trying to persuade the judge of something, the judge was now pleading his own case to Meyerson.
Meyerson wouldn’t let go. He pushed Garnett some more and reiterated that the case was not about fine legal abstractions but about brutal, obvious reality. He argued that if the case had been about a white man choked to death by a black man over a cigarette while the black man’s friends watched and did nothing, the killer would have been indicted long ago.
“That African American and probably his friends would have been arrested,” Meyerson thundered. “And in the proverbial New York minute, the prosecutor would have convened the grand jury, and in half a day, with the videotape, with the medical examiner’s report, and with some report saying chokeholds cause people to die, and the audio saying, ‘I can’t breathe,’ would have gotten indictments for some form of homicide.”
Finally, Meyerson told the judge another story about another case he’d been involved with, ages ago. It was the story of Clementine and Carnell Russ.
“Going back to 1971,” he said, “a young African American and his family on Memorial Day weekend were driving on a highway outside of Star City, Arkansas. Former president Clinton was then the attorney general in the state of Arkansas. And his people represented some of the defendants in that case.”
