While the City of New York has entered into a $5.9 million civil settlement with the Garner family, the homicide of Eric Garner continues to haunt the city as a major failure of the New York criminal justice system.

The events in Ferguson, Cleveland, Charleston, Baltimore, and — more recently — the cases of Sandra Bland and Christian Taylor, add new urgency for criminal justice officials to ensure there is accountability for police misconduct.

New York State Attorney General Eric Schneiderman has said the Garner case had “revealed a deep crisis of confidence in some of the fundamental elements of our criminal justice system,” and the case prompted President Obama to insist on a “strengthening of the trust and a strengthening of the accountability that exists between our communities and our law enforcement.”

After the civil settlement was announced, Garner’s mother, Gwen Carr, said, “Don’t Congratulate us. This is not a victory. Victory will come when we get justice.”

The question is, what does justice look like for the Garner family?

At the end of July, there was a setback on that score when the Appellate Division of the New York State Supreme Court refused efforts by the New York Civil Liberties Union and others to publicly release the Garner grand jury testimony. The lawsuit asked the court to unseal the Garner grand jury proceedings so that everyone could better understand the surprising refusal of the grand jury to indict.

A public release would have, for example, revealed if the district attorney had excluded lesser charges that might have made an indictment more likely; it also might have helped policymakers better understand how to reform the justice system.

For now, the ongoing U.S. Department of Justice investigation seems to be the only avenue open for the Garner family to see justice. Attorney General Loretta Lynch has a lot of credibility on justice issues, but there is, of course, a high legal bar for such cases, and the outcome is uncertain.

However, far too little attention has been focused on another option: the discretion the current law gives to Staten Island’s court and district attorney’s office to order a new grand jury in the Garner case.

The Staten Island Supreme Court and District Attorney Daniel Master are specifically authorized to review the Eric Garner grand jury decision, and under certain circumstances, convene a new grand jury to reconsider the case, or even send the matter back to the original grand jury.

This could happen in a couple ways. The first is by using a little-discussed provision of New York law that allows the court on its own motion to send the case to a new grand jury. Section 190.75 of the criminal code provides that, in circumstances where the grand jury decides not to indict an individual, the matter is settled, “unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.”

Why hasn’t the Staten Island court, after all that has transpired, used its discretion to resubmit the charge to a new grand jury? While it is true appellate courts require judges to find just cause before assigning a new grand jury, the rules still seem to give the court some latitude.

Second, there is the ability for District Attorney Master to convene a new grand jury around the same alleged misconduct, if the legal charges are different.

For example, there are media reports that then–District Attorney Daniel Donovan only asked jurors to consider manslaughter or criminal negligence in the Garner case, but not reckless endangerment, which presumably would have been easier to convince a jury to support indictment. If press accounts are true, the district attorney could establish a new grand jury over charges not presented in the first grand jury action, without court approval.

Had the court opened up the Garner grand jury proceedings, the public would know specifically what charges were presented in court and whether the district attorney held back some lesser charges that might have led to an easier conviction.

New York law clearly anticipates that secret grand juries sometimes make the wrong call, but the checks and balances in the system only work if the officers of the court step up and take fair and impartial action to get it right.

The grand jury process in New York is in serious need of reform — reform like that seen this week in California, where grand juries have now been outlawed in cases involving excessive or deadly force by law enforcement.

For now, however, a do-over in the Garner case would certainly be a start in addressing the deep crisis of confidence in the state’s criminal justice system.


Photo Credit: Flickr, Paul Silva, http://bit.ly/1JfoK0t