In re Carey
| Decision Date | 24 April 2014 |
| Citation | 988 N.Y.S.2d 852,45 Misc.3d 187,2014 N.Y. Slip Op. 24113 |
| Court | New York Supreme Court |
| Parties | In the Matter of the Application of Hugh L. CAREY, Governor of the State of New York, and Louis J. Lefkowitz, Attorney General of the State of New York, for a judicial determination as to the publication of Volumes 2 and 3 of the Final Report of Bernard S. Meyer, Special Deputy Attorney General, evaluating the conduct of the investigation by the Special Prosecutor into the retaking of Attica Correctional Facility on September 13, 1971, and related events subsequent thereto. |
OPINION TEXT STARTS HERE
Martin J. Mack, Esq., and Michael J. Russo, Esq., for Petitioner Attorney General of the State of New York.
Richard E. Mulvaney, Esq., and Stephen G. DeNigris, Esq., for Proposed Intervenor Police Benevolent Association of the New York State Troopers, Inc.
Michael P. Ravalli, Esq., for Proposed Intervenor New York State Police Investigators Association.
Edward C. Cosgrove, Esq., for Proposed Intervenor Lavonne Williams.
THE COURT'S ROLE IN THIS MATTER:
In this matter, which is initiated by New York State Attorney General Eric T. Schneiderman, this Court sits as the successor to the criminal court that supervised the Wyoming County grand jury 1 that, between 1971 and 1975, heard testimony and considered other evidence presented by then New York State Attorney General Louis J. Lefkowitz 2 (in the person or under the supervision of then Special Deputy Attorney General Robert E. Fisher and his successor, then Special Deputy Attorney General Anthony Simonetti) in relation to any crimes that may have been committed during the September 9–13, 1971 prison uprising at Attica Correctional Facility, and/or as part or in the aftermath of the September 13, 1971 forcible retaking of that facility by prison authorities and the State Police. This Court further sits as the successor to those courts that, as overseers of the grand jury, adjudicated two prior (ultimately unsuccessful) applications by the Attorney General for permission to disclose to the public, subject to whatever redactions of grand jury materials might be ordered by those courts, Volumes 2 and 3 of the October 1975 report of then Special Assistant Attorney General Bernard S. Meyer (which document is entitled “Final Report of the Special Attica Investigation” and is referred to herein as the Meyer Report or the report).
THE MEYER REPORT:
The three-volume Meyer Report, which has been submitted to this Court in proposed redacted form for this Court's in camera review, was solicited by and delivered to then Governor Hugh L. Carey and then Attorney General Lefkowitz within a several-month period in 1975.3 The purpose of the Meyer investigation and report was to make findings concerning the propriety of the then several-years-old but still ongoing criminal investigation by the Attorney General into the prison uprising and retaking and its aftermath. The Meyer investigation and report were prompted by the resignation of former Special Assistant Attorney General Malcolm H. Bell, a member of the Attica prosecutorial staff, who had alleged in his letter of resignation to the Attorney General (complaints later amplified in Bell's 160–page report to the Governor) that Simonetti's handling of the prosecution “lack[ed] integrity.” Thus, the essence of the Meyer investigation and report was to address whether there had been an official cover-up of crimes related to the retaking of Attica, or whether the relative paucity of indictments against police and correction officers involved in the prison retaking and its aftermath (in comparison to the numerous indictments of inmates involved in the rebellion) was the result of legal and evidentiary obstacles not borne of corruption. The upshot of the report was Meyer's conclusion that there had been “no intentional cover[-]up in the conduct of the Attica investigation” and grand jury presentment. Meyer more particularly concluded that the investigation and possible prosecution of law enforcement personnel for alleged acts of homicide, assault, or at least reckless endangerment committed during the prison retaking or the “rehousing” of inmates-or for alleged perjury and other hindrances to prosecution at subsequent junctures—had not been intentionally obstructed. Meyer concluded, however, that the investigation and grand jury presentment had been seriously compromised from September 13, 1971 by “extraordinarily deficient” police work, especially with regard to the preservation of ballistics and other physical evidence; that the ensuing investigation was underbudgeted at its outset; that the initial effort to prosecute crimes should have been more evenhanded in its focus and in its treatment of inmates vis-à-vis law enforcement personnel; and that the attempted prosecution of law enforcement personnel could have been more competently handled by the prosecutors, who made some serious misjudgments in administration but were not corrupt in their motivations. Meyer also made recommendations as to the appropriate future course and conduct of the investigation and grand jury presentment.
The 130–page Volume 1 of the Meyer Report, which was disclosed to the public by the Governor and Attorney General in December 1975, set forth the twelve basic findings and the five recommendations of Meyer, together with some factual analysis supporting the first few (relatively innocuous) findings. Inasmuch as it contained no explicit references to grand jury evidence, Volume 1 was disclosed without redaction (even as to any names of individuals mentioned therein, which were generally limited to those of elected State and local officials, high gubernatorial appointees, members of the Attorney General's investigative and prosecutorial staff, and higher-ups in the State Police and Department of Corrections). In contrast, Volumes 2 and 3 of the Meyer Report, which have never been disclosed to the public (and which form the entire subject of this proceeding), set forth the much more specific factual bases for Meyer's (more sensitive) findings about the lack of any corruption in the Attorney General's investigation and grand jury presentment.
The basic reason why Volumes 2 and 3 remain undisclosed to the public since 1975 is that they contain extensive passages culled by Meyer from the presumptively secret record of proceedings before the Attica grand jury ( seeCPL 190.25[4] ) for the purpose of buttressing his reported findings. Those passages include many direct quotations from and lengthy discussions of testimony and other evidence placed before the grand jury, references that of course include the names of select grand jury witnesses or targets. Moreover, throughout Volumes 2 and 3 are sprinkled (i.e., including in contexts distinctfrom the aforementioned grand jury references) the names of various inmates, police, correction, and other public officials, and private citizens, as well as other information tending to identify those persons. Many of those persons are named or otherwise identified or described in the report as having been involved in the events of September 1971 (i.e., the uprising, the retaking, and the alleged acts of official retaliation against inmates), and many were witnesses before, and/or indicted or never-indicted targets of, the grand jury.
Within several months after the completion of the Meyer Report, the Attorney General's criminal investigation was concluded, the Attica grand jury was discharged, and all indictments then pending against 24 inmates and one State Trooper were dismissed. Within a year of that, the Governor pardoned seven convicted inmates and commuted the sentence of an eighth, and he announced that no disciplinary action would be taken against 20 police officers and prison officials, all as part of the Governor's intent to “close the book” on the events at Attica. As of that time, however, much civil litigation remained ongoing.
THE PRIOR COURT ORDERS AND THE INSTANT REQUESTS TO MODIFY THEM:
Now before this Court is an application by the current Attorney General (or petitioner) for leave to renew ( seeCPLR 2221[a], [e] ) two applications made by his predecessors, the first before Wyoming County Supreme Court Justice Carmen F. Ball (Matter of Carey [Fischer ], 92 Misc.2d 316, 402 N.Y.S.2d 100 [1977],affd.68 A.D.2d 220, 416 N.Y.S.2d 904 [4th Dept.1979] [Simons, J.; Doerr, J., dissenting] ), and the second before Wyoming County Supreme Court Justice Frederick H. Marshall ( Matter of Carey, November 20, 1980, Index No. 15062 [not officially reported] ). The first request for renewal concerns Attorney General Lefkowitz's August 5, 1977 application for a judicial determination of which portions of Volumes 2 and 3 of the Meyer Report, possibly including their references to presumptively secret grand jury evidence, might be released to the public. That application culminated in a November 29, 1977 decision and a December 22, 1977 order of Justice Ball (92 Misc.2d 316, 402 N.Y.S.2d 100, supra), who directed the Attorney General to “redact and exclude any and all reference to grand jury testimony from Volumes 2 and 3” of the Meyer Report, as mandated by CPL 190.25(4). That aspect of the order was upheld by the Fourth Department in May 1979 (68 A.D.2d 220, 416 N.Y.S.2d 904, supra).
It is to be noted here that, in connection with his 1977 application, the Attorney General (at least eventually) proposed to redact the names of at least some individuals mentioned in Volumes 2 and 3 (i.e., even other than in reference to grand jury evidence), as necessary to prevent any reputational injury to such individuals,4 a proposed set of redactions that the Fourth Department ultimately indicated (on two occasions) was not mandated by law, and thus not for the courts to determine, but rather completely discretionary with the Attorney General and/or Governor ( see Matter of Carey [Fischer ], 68 A.D.2d at 224, 416...
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