By Joel Cohen and Bennett L. Gershman
The circumstances in the Eric Garner chokehold death by Staten Island Police Officer Daniel Pantaleo - pronounced a homicide by the New York City Medical Examiner - continues to elude close public scrutiny and official accountability. Unless the public's "lying eyes" misled it, there can be no question that Pantaleo killed Garner without provocation or justification. Moreover, unless the Staten Island Grand Jury that investigated the killing learned something radically different than what the public saw on the clearly incriminating video, many concerned citizens must wonder why Pantaleo and his fellow officers were not indicted for the homicide. And in contrast to the action of the Ferguson, Missouri prosecutor in releasing all of the secret grand jury testimony in the police killing of Michael Brown, Staten Island District Attorney, Daniel Donovan (and now Congressman), on a motion by the NAACP, adamantly refused to make public any of the evidence he placed before the grand jury, or the reasons for giving police witnesses immunity, shielding himself under the cover of grand jury secrecy.
And so, after unsuccessfully seeking to learn what happened in the grand jury, but speculating that Donovan may have steered the grand jury to vote no indictment, the NAACP filed a complaint against Donovan with New York's Grievance Committee alleging that Donovan violated his duty as District Attorney to investigate responsibly and in good faith the conduct of the officers in the Garner killing. The NAACP's complaint was not unusual. Indeed, the Grievance Committee is the agency that is authorized by law to investigate the misconduct and other ethical violations by attorneys, including prosecutors, who also are attorneys, and routinely subject to investigation and discipline by grievance committees. The NAACP complaint asked the Grievance Committee to investigate whether Donovan and his assistants in the grand jury, by failing to prosecute the Staten Island police fairly and impartially (perhaps out of loyalty to the police, with whom they must deal daily, or for other improper reasons), engaged in misconduct in violation of the rules of professional conduct.
However, in what appears to be an unprecedented decision, the Grievance Committee refused to entertain the complaint (Grievance Comm File No R-1885-14). Indeed, it refused to even open an inquiry. It claimed that it was "not the appropriate forum" for the complaint, and that the matter was "not within the jurisdiction of the Grievance Committee" because the complaint was "directed at the decisions and actions of an elected public official, made pursuant to the powers and duties afforded him." The NAACP then asked the Presiding Justice of the Appellate Division of the New York State Supreme Court to compel the Grievance Committee to open an inquiry into how a prosecutor with such colossal power over a grand jury managed in this aggravated instance to avoid an indictment. The lawyer for the Appellate Division declined the request. He justified the refusal of the Grievance Committee to make even a preliminary determination by suggesting that it is not the role of the Grievance Committee to investigate whether a District Attorney "wrongfully" failed to secure an indictment.
Is that true? Suppose hypothetically that the District Attorney had broken bread with Police Department's borough commander, who secretly agreed that the District Attorney would decline to prosecute the police officers in exchange for the police on Staten Island not engaging in a work stoppage. Or, the District Attorney implied to the police union chief that he would not indict police officers, and in exchange the police union would support the District Attorney's candidacy in his upcoming election in police-friendly Staten Island. Or, there was evidence that the District Attorney simply instructed his assistants to "go soft" in the grand jury in order to keep his career on track? Would the Grievance Committee seriously maintain that under these hypothetical facts it would have no "jurisdiction" to pursue a complaint against the prosecutor for ethical violations?
Frustrated by the Grievance Committee's abdication of ethical oversight, the NAACP sought a court order compelling the Grievance Committee to conduct an investigation into their allegations. Although the Court noted that the case is "one of first impression," its refusal to require the Grievance Committee to conduct an ethics inquiry only added mud and confusion to the controversy. The Court could have found, but did not, that the NAACP's motion to compel a disciplinary investigation contained insufficient facts to require the Grievance Committee to proceed. The Court, however, did not find that the NAACP made a factually insupportable claim that the prosecutor deliberately and inappropriately went soft on the police. The Court did not say: "You haven't made a sufficient case to even suggest anything improper by the prosecutor." To be sure, enforcement of attorney discipline is hedged by rules of procedure, and disciplinary agencies are accorded some degree of investigative discretion. Thus, a complainant cannot compel a disciplinary investigation of an attorney -any attorney - simply by demanding one, in the same way that a complainant cannot demand that a prosecutor conduct a criminal investigation of a defendant simply by asking for one.
The Court cited a Supreme Court decision, correctly, for the proposition that prosecutors typically enjoy broad immunity from civil liability for their misconduct in order not to chill the independence of the prosecutor to enforce the law. But in that same opinion the Supreme Court also noted that prosecutors may still be held accountable to the legal community for their professional misconduct under the relevant codes of ethical conduct.
But the Court's decision did not follow the Supreme Court's suggestion. The Court said something radically different. It said that asking the Grievance Committee to investigate the District Attorney's office about its investigative functions, particularly its conduct before the grand jury, would invade the discretionary powers accorded prosecutors - as, for example, in the Garner case, the refusal to seek an indictment. The Court concluded that the Grievance Committee did not even have "jurisdiction" to entertain a complaint challenging the District Attorney's discretion in whether to seek an indictment.
To be sure, the available information about the grand jury's investigation in the Garner case does not present a scenario that depicts clear-cut prosecutorial misconduct and therefore abdication of discipline function by the Grievance Committee. Indeed, although the police conduct in the Garner case is as raw as it could get, the NAACP did not allege any specific evidence of prosecutorial misconduct other than an inference of wrongdoing by the District Attorney stemming from the critical perspective that could reasonably question how a responsible grand jury could not indict Pantaleo and his colleagues given the dramatic video. Most troubling, however, is the Grievance Committee's curious posture in responding to the demand for a disciplinary investigation. Although it did not use these words, it said, in effect: "We don't even have the authority to investigate the District Attorney. He's beyond our power to investigate!"
It's ironic that only a short while ago the New York State Commission on Statewide Attorney Discipline suggested that discipline of prosecutors was being dealt with appropriately and there was no need for an independent agency to review a prosecutor's alleged misconduct. The Report noted that the discipline of prosecutors "[should] receive the same attention and scrutiny from the disciplinary and grievance committees as any other complaint - if the committee received a complaint of prosecutorial misconduct." Indeed, the Report emphasized that "The public must be able to make an informed judgment about whether the result of a complaint of prosecutorial misconduct is fair, whether the disciplinary committee did its job and whether the system is working."
Prosecutors are well aware that their conduct is subject to professional discipline, as is the conduct of all lawyers. In its brochure entitled "The Right Thing - Ethical Guidelines for Prosecutors" prepared by the District Attorneys Association of the State of New York, prosecutors are appropriately cautioned to behave within the ethical guidelines that are overseen by the Grievance Committees and there is no suggestion that their discretionary conduct, or conduct before grand juries, is somehow exempt from professional review.
The response to the Garner complaint by the Grievance Committee, the Appellate Division, and the reviewing that, in effect, claimed a "hands off" attitude toward allegations of prosecutorial misconduct is extremely troubling, especially in light of the comments in the Report of Commission on Attorney Discipline and the understandings of the District Attorneys themselves that their conduct is at least subject to review by the Grievance Committee. The excuse of "lack of jurisdiction" is frankly baseless.