AMENDED DECISION AND ORDER On July 15, 2020, New York Governor Andrew M. Cuomo issued Executive Order 147.35 authorizing the Office of the Attorney General (“OAG”) to investigate and, if warranted, prosecute any unlawful acts or omissions or alleged unlawful acts or omissions by any law enforcement officer “arising out of, relating to, or in any other way connected with the death of Daniel Prude on March 30, 2020, in Monroe County.” Daniel Prude was an African American male believed to be mentally ill and/or exhibiting signs of substance abuse during his encounter with the Rochester Police Department (“RPD”) on March 23, 2020. Mr. Prude died a week after his encounter with the RPD and it is widely believed that the injuries from this encounter contributed to his death. The nature and impact of delayed release of information about Mr. Prude’s death and related RPD body worn cameras has caused a significant local crisis resulting in demands from the public for information about what exactly happened, why it happened, who is responsible, and how we move forward to prevent similar incidents in the future. Notably, Mr. Prude’s death brought national and international attention (once again) to the pervasive problem of the deaths of unarmed African Americans during or as a result of encounters with police officers.1 New York’s Executive Orders 147 and 147.35 and Executive Law §70-b reflect the state’s attempt to address this significant and pervasive problem. On July 8, 2015, New York Governor Andrew M. Cuomo issued Executive Order 147, which appointed the Attorney General as a special prosecutor required to “investigate, and if warranted, prosecute certain matters involving the death of an unarmed civilian, whether in custody or not, caused by a law enforcement officer.” Executive Order 147 further states: a. “[T]here have been recent incidents involving the deaths of unarmed civilians that have challenged the public’s confidence and trust in our system of criminal justice,” b. “[P]ublic concerns have been raised that such incidents cannot be prosecuted at the local level without conflict or bias, or the public perception of conflict or bias,” c. “[I]t is necessary to ensure that a full, reasoned, and independent investigation and prosecution of any such incident is conducted without conflict or bias, or the perception of conflict or bias.” Notably, Executive Order 147 also requires that the OAG investigate such cases, and when appropriate, appear before a grand jury where the incident occurred, bring any and all criminal actions before the grand jury, and provide a report containing an “explanation of [the] outcome and any recommendations for systemic reform arising from the investigation” when the grand jury declines to return an indictment. Pursuant to the mandates of Executive Order 147 and 147.35, the OAG conducted a Special Grand Jury (“SGJ”) investigation into the death of Daniel Prude and the SGJ declined to return an indictment. The Attorney General of the State of New York, Letitia James, through Michael D. Smith, Assistant Attorney General and Deputy Chief in the Special Investigations and Prosecutions Unit, submitted a sealed, ex parte application for an order permitting the public disclosure of the minutes, or in the alternative a non-content summary of the Monroe County Grand Jury’s inquiry into the circumstances surrounding the March 30, 2020 death of Daniel Prude pursuant to Criminal Procedure Law (CPL) §190.25 and §215.70. As the SGJ declined to return an indictment, the OAG now seeks public disclosure of the minutes of the SGJ proceeding in order to inform the public about the proceeding consistent with the Executive Orders that mandate transparency and reform in the criminal justice system. New York’s CPL §190.25 (4) (a) provides that grand jury proceedings are secret, and no grand juror, or other person may, “except in the lawful discharge of his [or her] duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding” (CPL §190.25 [4] [a]). Unlawful disclosure of grand jury testimony is a felony (CPL §215.70). Notably, a witness is not prohibited from disclosing his/her testimony without approval (CPL §190.25 [4] [a]). Essentially, evidence in a grand jury presentation may not be disclosed without a court order (Id.). “While secrecy of grand jury minutes is not absolute, a presumption of confidentiality attaches to the record of grand jury proceedings” (Matter of James v. Donovan, 130 AD3d 1032, 1037, 14 N.Y.S.3d 435 [2d Dept 2015], lv denied 26 N.Y.3d 1048[2015], citing People v. Di Napoli, 27 N.Y.2d at 234, 316 N.Y.S.2d 622, 265 N.E.2d 449; see Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 443, 461 N.Y.S.2d 773, 448 N.E.2d 440; see Roberson v. City of New York, 163 A.D.2d at 291, 557 N.Y.S.2d 431). The minutes of a grand jury may be divulged in a court’s discretion when the moving party articulates a “compelling and particularized need” to release the grand jury minutes (See Matter of James v. Donovan at 1037 citing People v. Robinson, 98 NY2d 755, 756 [2002]; see Matter of District Attorney of Suffolk County, 58 NY2d 536, 444 [1983]; Matter of Police Commr. of City of N.Y. v. Victor W., 37 AD3d 722 [2007]). Public interest alone cannot satisfy the standard for “compelling and particularized need” (Id.). Further, courts have ruled that to “quell the unrest, and to restore confidence in the grand jury system generally and in [the prosecutor's] office specifically,” is also not enough of a “compelling and particularized need” to release grand jury minutes (Matter of James v. Donovan, at 1038, citing see Matter of Hynes [Patrolmen's Benevolent Assn.], 179 AD2d 760, 579 N.Y.S.2d 117 [1992]). Both the Donovan (the case involving the death of Eric Gamer) and Hynes (Crown Heights incident involving the death of a seven year old child) addressed publicized cases in New York in which the courts ultimately declined to find a “compelling and particularized need” to release the grand jury minutes. After reviewing the OAG’s application, this Court finds that the OAG has met its burden and has established a compelling and particularized need to release the grand jury minutes in this proceeding to provide transparency to the public about the investigation and the grand jury proceeding. The public interest in transparency in connection with civilian deaths caused by law enforcement officers is substantial. However, this Court finds that the compelling and particularized need to release the minutes may be evinced by much more that a generalized public interest. First, New York Governor’s Executive Order 147 requires a report by the OAG explaining the outcome and any recommendations for systemic reform arising from the investigation. However, in this case, the OAG’s report or non-content summary is incomplete if it is not supported by specific facts/evidence from the proceeding. Despite the well-intentioned effort, an “empty” report or summary is anything but transparent. In order to truly understand what happened in the incident being investigated, the public needs to know the evidence that was presented during the proceeding. They should not be required to “take the OAG’s word for it.” If transparency is to have its ordinary meaning, then there are times when our courts need to open the doors to the public and this is one of them. Second, the New York Legislature codified and expanded Executive Order 147 into law by enacting Executive Law §70-b, effective April 1, 2021, requiring the OAG to make public reports to include information generally contained in grand jury proceedings. This law, which takes effect on April 1st (in less than a month) tells us that the legislature intends to expand the scope and nature of the cases investigated by the OAG, allow for ongoing reporting and continued transparency, and anticipates some disclosure of the grand jury proceedings. Third, the people of Monroe County have a profound interest, but an incomplete understanding of the roles that different individuals and agencies in the criminal justice system played in the circumstances of the Daniel Prude case. Releasing the grand jury minutes provides the clarity needed to assist with local and statewide efforts to reform the criminal justice system. This Court believes that transparency will further assist this community in being transformative. More specifically, the community is seeking ways to respond to those who are mentally ill and/or have substance abuse challenges; improve relations between the police and the community; and provide more equitable treatment for all citizens by law enforcement. These are all issues on which the release of the grand jury minutes may shed light. If the moving party makes a demonstration of a “compelling and particularized need” to release the grand jury minutes, then we “balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure” (Matter of James v. Donovan at 1040). Factors considered for preserving grand jury secrecy include “(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely” (People v. Di Napoli, 27 NY2d 229, 235 [1970]; see Matter of James v. Donovan at 1040. Having found that the OAG has a compelling and particularized interest as discussed above, the Court has determined that the public interest served by the release of the grand jury minutes outweighs the secrecy of grand jury proceedings (see Matter of James v. Donovan at 1039). Of the five factors above, only two are applicable to the facts and circumstances here: “protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely” (Dinapoli at 235). This Court believes that redaction of the names of all witnesses in this proceeding is an effective way to protect the “innocent accused from unfounded accusations” and to assure prospective witnesses that their identity will be kept secret. Although the identities of some individuals are publicly known in this case, there is still a duty to protect them through the grand jury process. As argued in Matter of James v. Donovan, there is a suggestion “that redactions would not serve the purpose of preserving the witnesses’ anonymity and thereby protect them from public criticism and scrutiny” (Matter of James v. Donovan, at 1040-41). However, this case is distinguishable because New York’s executive orders, and soon to be effective law, are a response to the public outcry for change and reform which now call on the OAG to serve as prosecutor in these unique cases and for a report explaining the results of the grand jury and the need for reform. Redacting the names of all witnesses (including civilians and police officers) and grand jurors is a way to allow public disclosure and still protect the parties. Courts have argued that the public will criticize and scrutinize the witnesses because of the “widespread dissemination” of videos and reports. However, there have been several police involved civilian deaths across the country in which grand juries declined to indict any involved officer and grand jury testimony has been released without a danger to anyone involved in those proceedings. It is more likely that the public will continue to scrutinize the criminal justice system due to a lack of understanding of the grand jury process and the secrecy that has surrounded high profile police involved civilian deaths. This Court is fully aware that courts have routinely declined to release the grand jury minutes in cases prosecuted by local District Attorneys where a grand jury declined to indict a law enforcement official for the death of a civilian. Instead, after conducting an analysis, the courts issuing these orders have selected the alternative option, a non-content summary information order. However, this is a case of first impression in an unprecedented era of the public’s demands for transparency of our criminal justice system. No other cases mirror the facts in this unique set of circumstances surrounding this application and provide us with the opportunity to address the mandates set by our Executive Order. Given the OAG’s mandate, the unique impact of this case on the community and the world, and the work that needs to be done to reform the criminal justice system this Court agrees that the public needs more information about what happened in this case than a non-content summary would be able to provide. Providing information about how many witnesses testified, the type of witnesses who testified, and other quantitative details does not inform the public about how and why this incident happened. The “how” and “why” elements are crucial in assisting the public to move forward by providing the public with an understanding of the roles that different individuals and entities had in the incident at a time when both Monroe County and our nation are working on criminal justice reform. We cannot move forward unless we look back, learn and take heed. This amended decision to the Court’s Order and Decision dated February 23, 2021, attached as Court Exhibit 1, provides clarity that the redacted minutes must be submitted for the Court’s review before release. NOW THEREFORE, it is hereby ORDERED, pursuant to CPL §190.25 and CPL §215.70 that the Office of Attorney General is permitted to release the minutes of the special grand jury proceeding; and the names of all witnesses (including civilians and police officers) and grand jurors shall be redacted. ORDERED that the grand jury minutes shall not be released until all the appropriate redactions have been made and submitted for the Court’s review. Dated: February 23, 2021
