view full story- In defense of grand jury secrecy - Those attacking the system after the Eric Garner decision fail to understand that the process works as intended
BY Daniel R. Alonso
NEW YORK DAILY NEWS
Thursday, December 11, 2014, 5:00 AM
Chicago Mayor Rahm Emanuel famously said that in politics and public policy, you “never want a serious crisis to go to waste.” That adage comes to mind in the aftermath of the grand jury’s decision in the Eric Garner tragedy, when various state leaders have announced plans to introduce legislative reforms to increase what they call “grand jury transparency.”
Commentators on this page and others have also belittled grand juries as no more than tools of the prosecutor, invoking former Judge Sol Wachtler’s quip about grand juries indicting ham sandwiches, as though merely repeating it ends the debate.
As understandable as it is to want to do something in the wake of a decision that many may view as unjust, New Yorkers should take a deep breath and consider why our law for hundreds of years has ensured that grand jury proceedings remain secret, to the point that it is a felony for any grand juror or prosecutor to disclose what happened without authorization.
At first, the question seems reasonable: Why should a government proceeding be secret? After all, we would never tolerate a secret trial.
The answer is that grand juries are different. They don’t convict, and they don’t incarcerate. Instead, they have a dual role: They can investigate to see whether a crime was committed — or even just to make sure one wasn’t — and they must decide whether enough evidence has been presented to charge someone with a serious crime.
These functions require the assurance of secrecy, and for very good reasons: to encourage witnesses to come forward, to protect the integrity of the criminal justice system and to shield people from unfounded accusations.
Consider a case of neighborhood violence. The last thing any witness wants to do is to testify at all, let alone in public. But because New York law requires that the evidence before a grand jury come from witnesses with firsthand knowledge of the events, prosecutors must persuade oftenterrified people to appear and testify.
This is a delicate task, and in many ways is the toughest part of a prosecutor’s job. Often, the key to making sure that testimony is heard at all is assuring the witness that the proceeding is secret and the defendant will not be present. This can’t be overstated: Civilian witnesses are reluctant to testify, and in most cases the law doesn’t allow an indictment to be returned without them. Put another way, if grand jury sessions were either conducted in public, or if the transcripts of their proceedings were routinely unsealed, the result would be many fewer indictments, and more criminals escaping punishment for their actions.
There’s another problem. In long-term investigations of all sorts — whether of organized crime, fraud, public corruption or police brutality — it is crucial that the targets of an investigation not be made aware which of their cohorts has testified and what they have said. In too many cases, witnesses have been intimidated, bribed or persuaded not to testify. Some have wound up dead.
Secrecy allows prosecutors and investigators to minimize these outrageous threats to the judicial system in a way that would be impossible in a public proceeding.
Finally, grand juries often hear disparaging information about people whose names come up in their proceedings but are never charged, including the subjects of investigations that don’t result in indictment. The fundamental unfairness of releasing these accusations is another crucial reason to keep grand juries secret.
What about that ham sandwich comment? It ignores reality. In 2013, New York State prosecutors presented some 50,208 cases to grand juries. Of those, the grand jury refused to charge fully 1,542 defendants, and sent nearly another 3,000 to the misdemeanor court on lesser charges. That’s a lot of lunchmeat walking the streets.
But doesn’t this 91% indictment rate mean that the grand jury is in fact a tool of the district attorney? Only if one ignores a crucial part of the prosecutor’s job, which is to weed out unworthy cases and present only those that have at least some merit to the grand jury.
If the indictment figure were much lower, we’d be justified in saying that prosecutors were not doing their jobs well. Those 50,000 cases that prosecutors put before grand juries constituted only about a third of cases in which the police made a felony arrest in the first place.
That makes the reason that grand juries indict in the vast majority of cases pretty clear: Prosecutors have already taken a large first cut through the universe of potential felony cases and weeded out two-thirds of them.
There’s a saying in the legal profession: “Hard cases make bad law.” The Garner case was hard for everyone involved, and for our society. But it should not become an excuse to cripple our grand jury system.
Alonso, formerly Manhattan chief assistant district attorney, is managing director and general counsel of the consulting firm Exiger LLC.3rd District DA, GSU students celebrate King
John Fitzgerald Kennedy Belton told scores of Grambling State University students said their decision to pursue an education would make the Rev. Martin Luther King Jr. proud. Belton, the new district attorney for the 3rd Juridical District in of Lincoln and Union parishes, told the crowdof about 200 that putting Jesus Christ first and making positive choices would serve them well during the annual MLK observance in the Black and Gold Room of the Favrot Student Union.
As northeastern Louisiana and the nation celebrated the life of the King on the official U.S. government holiday Monday, the Favrot Student Union Board was joined by GSU Campus Ministries and others to make sure that King is remembered.
Belton put King’s life and death in context with a variety of specifics from King’s days and his own experiences. His father, now 81, was a civil rights activist in southern Louisiana. When Belton was growing up, his mother would take him to see the doctor and sit in the colored waiting room, but his father would take him and sit in the white waiting room — daring anyone to say anything. Belton said King would be proud about lots of things that have happened, including the election of the nation’s first black president but he would be saddened by so many young black men killing other black men.
Standing behind a large portrait of King and a photograph from the historic “I Am A Man” Memphis sanitation protest, Belton urged the students to have a “board of five or six people” as advisers and counselors, “people older than you” rather than sharing all of their business on social media. He said his office frequently looks at social media for background when investigating cases, “so be careful.”
Belton said the character, traits and principles King possessed and that others saw in him 40 years ago are just as valuable today.
Daryl Riley, 20, of Saginaw, Michigan, was happy to be a part of the program, saying he “loved it” and it made him “proud to be black.”
Lyrical Quest poet Christopher Shaw, 21, of Pittsburgh, shared his poem “Loaded with Dreams” with the audience, including a line that says “there’s a surplus of boys but there’s a scarcity of men.” The audience roared.
As he ended his remarks, Belton asked the students to “keep dreaming.”
Published 1/19/15 - The News Star Prem Burns recalls decades as prosecutor, continues work on post-conviction cases - Recent retiree to continue work on post-conviction cases
Three days after retiring from the East Baton Rouge Parish District Attorney’s Office, veteran prosecutor Prem Burns sat alone Thursday in a City Hall office with an old photograph of Baton Rouge police Cpl. Betty Smothers and her six children and boxes of files with the name of Kevan Brumfield, one of two men on death row for the 1993 ambush slaying.
“I’ve been with this family for 22 years,” Burns said, holding the photo that was taken several years before Smothers’ death.
As it turns out, the 65-year-old Burns will be with the family of the slain officer a while longer. That’s because the U.S. Supreme Court announced on Dec. 5 — the same day District Attorney Hillar Moore III announced Burns would be retiring Jan. 12 — that it would hear arguments in March dealing with Brumfield’s mental retardation claim. Burns, who spent more than 34 years with the East Baton Rouge District Attorney’s Office, has agreed to continue working with the office as special counsel on behalf of the victims in her remaining capital post-conviction cases, including Brumfield’s.
In all, Burns secured death sentences against five men while prosecuting in Baton Rouge: Jeffrey Cameron Clark, Allen “Lil Boo” Robertson Jr., Brumfield and co-defendant Henri Broadway, and Gregory “Boo” Brown.
“It’s not a deterrent, but it’s the proper punishment for what you have done,” Burns said of the death-penalty verdicts she won.
Robertson was twice sentenced to death in the New Year’s Day 1991 stabbing deaths of Morris Prestenback and his wife, Kazuko, in their north Baton Rouge home. Clark, whose sentence in the 1984 killing of Studebaker’s nightclub assistant manager Andrew Cheswick was later reduced to life, now is on death row for the 1999 murder of Louisiana State Penitentiary at Angola prison guard David Knapps. Burns did not prosecute the prison murder.
Burns’ work as special counsel will involve the cases of Brumfield, Broadway, Robertson and Brown, who abducted and killed a Clinton couple — William and Ann Gay — in 1998.
Burns is researching and preparing to argue in front of the nation’s highest court in Brumfield’s case. For someone who holds the distinction as the first woman felony prosecutor in East Baton Rouge, first woman criminal section chief and first woman named first assistant district attorney, this will be Burns’ first appearance before the U.S. Supreme Court.
“That, to me, is something you always think about. It’s the carrot that’s over your head,” she said. “This, to me, is a golden gift to go out on. It’s beyond any expectation and gift.”
Burns’ prosecutorial experience also includes 2½ years with the Calcasieu Parish District Attorney’s Office and 1½ years with the U.S. Attorney’s Office in Baton Rouge. She began her legal career in 1974 at the Legal Aid Society.
“I wanted to be the best lawyer in any courtroom I went into,” she said. “I always overprepared.”
In 1989, two years after her successful prosecution of three Colombian nationals who were sentenced to life in prison in the 1986 slaying of federal drug informant Adler “Barry” Seal outside a Baton Rouge halfway house, Burns landed on the cover of Parade Magazine as one of five “Women Who Could Be America’s Toughest Prosecutors.”
Burns, who prosecuted more than 100 felony jury trials, said what she will miss most in her retirement is interacting with juries.
“Probably standing in front of a jury, doing an opening and closing argument. I adore that, doing justice for that victim,” she said.
Burns, who trained numerous lawyers while teaching at LSU as an adjunct professor and trial advocacy faculty member, said she would love to teach again.
As first assistant district attorney the past seven years, Burns also served as chief of litigation, grand jury legal advisor, asset forfeiture counsel and police incident prosecutor.
Tracey Barbera is the new first assistant, and Dana Cummings is chief of litigation.
A self-confessed child killer will walk out of state prison Jan. 22 and there’s nothing his victim’s family can do about it. Phillip DeSelle has served the required percentage of his sentence for killing Averie Grace Evans, an 11-year-old student he snatched while she went door-to-door in her Natchitoches neighborhood selling candy for a school fundraiser.
Averie was reported missing Nov. 5, 1990. Her family agonized for 12 weeks until law enforcement investigators had information to arrest DeSelle in January 1991.
“He’s an evil man. He never showed any remorse or regret,” said Averie’s aunt, Erin Keyser, who created a Facebook page, Justice for Averie (facebook.com/justiceforaverie) on Friday just days after being notified of DeSelle’s release. “Our only recourse is to warn people.”
Keyser made sure close family members were informed before making the public aware DeSelle soon will be a free man. “The main thing is to protect the children; that no family will have to go through this devastation,” Keyser said.
Since she was registered in the system as a victim, Keyser was notified by the Louisiana Department of Corrections. DeSelle, she said, will report to the Ville Platte Probation and Parole Office.
He’ll be on supervised parole through July 30, 2040, according to Pam Laborde, DOC communications director. His early release after 24 years served is a “result of diminution of sentence (applicable good time statutes),” Laborde said in an email to The Times.
Qualifying offenders have the ability to reduce their sentences by earning so-called good time credits in exchange for good behavior and participation in self-improvement programs. The Legislature changed the law in 1997, requiring violent offenders to serve 85 percent of their sentence. DeSelle was sentenced under the old law.
The Louisiana District Attorneys Association pushed for the new law to remedy the early release of violent offenders. “We had people sentenced for violent crimes and up until then they only had to serve one-third of every sentence,” said Sabine District Attorney Don Burkett, who was active with the association in seeing the law changed.
“At the time we thought he would be in his 80s or 90 when he got out. You get some sense of peace with that,” Keyser said.