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1985 Probe Called For Lifting Grand Jury Secrecy in Police Fatality Cases

By Murray Weiss | December 10, 2014 12:36pm
 Former NYPD detective Leopold McLean was convicted of attempted murder in Queens on May 23, 2014.
Former NYPD detective Leopold McLean was convicted of attempted murder in Queens on May 23, 2014.
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NEW YORK CITY — In 1985, Gov. Mario Cuomo commissioned an investigation into police brutality after an NYPD sergeant tortured a suspect in Queens using a stun gun, igniting a firestorm about race relations and policing.

A key finding was that some black and Hispanics believe police are more likely to use excessive force against them than whites.

“This perception is creating much of the current acrimony over the recent police killings of New York citizens,” Richard Condon, then the state’s executive director of Criminal Justice Services, wrote.

To counter that, Condon suggested that the secrecy surrounding grand juries in police fatality cases be lifted, with all testimony and evidence released publicly.

But nothing happened.

Now nearly three decades later, following a Staten Island grand jury's decision not to indict a police officer in the apparent chokehold death of Eric Garner, and with grand jury secrecy and police relations with communities of color making headlines again, top judicial officials and lawyers say the time for implementing Condon’s recommendation may finally have come.

“Secrecy is the single greatest issue with grand juries and civilians killed by police,” a top prosecutor said. “When a grand jury fails to indict, there are always concerns about why, and therefore public discontent.”

By comparison, the prosecutor said that situation is different with trials, citing the fatal police shootings of Sean Bell and Amadou Diallo. 

In the courtroom, the public “at least get[s] to see all the evidence, the process and they have a better sense that justice was being sought for all.”

Condon, a former NYPD Commissioner and now the Special Commissioner of Investigation for the city’s Department of Education, did not return calls to discuss his landmark 30-year-old report.

In April 1985, 18-year-old high-school senior Mark Davidson was arrested by two NYPD officers for allegedly selling $10 worth of marijuana, then taken to the 106th Precinct in Queens, where he was brutally beaten and tortured with a stun gun.

The lawmen, Sgt. Richard Pike and Officer Jeffrey Gilbert, both later convicted and imprisoned, used a stun gun on Davidson 43 times, and threatened to sustain the torment all night long unless he confessed.

Davidson, who had no prior arrests, said he offered the confession because he was shocked on his back, buttocks, stomach and threatened with being shocked on his genitals.

Davidson's lawyer, Marvyn Kornberg, who exposed the brutality, has also represented NYPD officers accused of abuse, including Justin Volpe, who eventually confessed to sodomizing Abner Louima.

Kornberg said implementation of Condon’s recommendation is long overdue.

“Releasing the grand jury testimony when there is no indictment would restore the faith the public has in the district attorney’s office, not only the police, and show they are not in bed together,” he said.

Several other of Condon's recommendations were eventually implemented: officers were prohibited from firing warning shots or shooting at moving vehicles; police agencies increased minority recruitment, and they eliminated requirements that officers carry their guns while off-duty.

But the suggestion that evidence in the police deaths cases be released has fallen on deaf ears because of the belief that grand jury secrecy was sacrosanct. State law prohibits its release to protect witness from reprisal unless there is a compelling public interest.

“It is deeply entrenched, not just grand juries, but things like not allowing cameras in court,” a top state official said.

And district attorneys also may not like their work second guessed.

“You have to understand this involves district attorneys throughout the state, not just in New York City,” the official said.

Even in Missouri, where the DA released all testimony in the Michael Brown case, some people criticized him for the way he presented evidence.

Despite the attention that grand jury secrecy is getting, the official didn't think New York law would change imminently.

“The topic has gained momentum,” he said. “Ferguson may have changed the tone to let the light in.”

“But,” he concluded, “I am not optimistic that will happen.”