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Judges hear arguments in whether to release Eric Garner grand jury records

This undated family photo provided by the National

This undated family photo provided by the National Action Network on Saturday, July 19, 2014, shows Eric Garner, who was confronted by police trying to arrest him on suspicion of selling untaxed, loose cigarettes on a Staten Island sidewalk, authorities said. Credit: National Action Network) / National Action Network

A Staten Island prosecutor Tuesday urged an appeals court panel to keep records of the grand jury that failed to indict an NYPD officer in the Eric Garner chokehold case under seal, warning that release of the minutes would fuel speculation and criticism, not increase public trust.

"Further disclosure will only raise more questions," Assistant District Attorney Anne Grady told four justices of the Appellate Division Second Department in Brooklyn. "It's not going to restore public confidence."

But lawyers for New York City Public Advocate Letitia James, the New York Civil Liberties Union and others told the judges they needed to overturn a lower court and end the secrecy so the public can assess the need for reforms in how police violence cases are handled.

"Secrecy only reinforces suspicion, and there is deep suspicion here on the part of communities of color and others," said civil liberties union lawyer Arthur Eisenberg.

Garner, 43, died last July 17 during an arrest for selling untaxed cigarettes when Officer Daniel Pantaleo, in a scene caught on a cellphone video, used a neck hold to take him to the ground and hold him while Garner struggled to breathe. The grand jury failed to indict in December. Federal authorities are still investigating.

The case became part of a national narrative about police treatment of black men, triggering street protests, criticism of a system in which local prosecutors who depend on police also make decisions about prosecuting them, and questions about whether Staten Island District Attorney Dan Donovan, now in Congress, presented a strong case.

Grand jury proceedings in New York are secret in the absence of exceptional circumstances, and Grady said release of the Garner records could endanger witnesses who appeared expecting confidentiality, and make future grand jury witnesses hesitant.

"The intense public scrutiny should result not in disclosure, but in even more zealous protection of grand jury secrecy," Grady said.

But a lawyer for James, the public advocate, argued that with proposed reforms to limit local prosecutors' authority in police cases coming from the governor, the state's chief judge, and legislators, officials need information about the Garner case to sort through the ideas. "It is the fulcrum, the catalyst for every reform proposal," said Matthew Brinckerhoff.

The judges warned that public interest and statewide debate over reforms might not be sufficient grounds under New York law to breach secrecy.

"Public interest in and of itself is not a compelling and particularized interest," said Justice Mark Dillon, the head of the four-judge panel.

But one judge seemed bothered that Donovan had supported a limited release of information last year -- about the grand jury's duration and the number of witnesses and exhibits it reviewed -- that seemed designed to burnish its credibility.

Justice Leonard Austin wondered if a broader release would balance the picture. "Your office seems to have wanted to put a very pretty gloss on what happened," he told Grady, "and sweep everything else under the rug."

The judges reserved decision.

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