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DA SHOULD HAVE THE OPTION ON GRAND JURY

County Judge Timothy J. Drury's opinion is highly respected, in Erie County and throughout the state. But Chief Judge Wachtler and I must take issue with his views on the grand jury system ("Grand jury system beats the alternatives," Dec. 22, 1989).

Under current law, felony prosecutions must be based upon a grand jury indictment unless the defendant consents. The chief judge and I have proposed that use of the grand jury be at the option of the district attorney, not the defendant. Two-thirds of the states have already abolished grand jury indictments as the sole means of prosecuting felonies. It is time that New York, with the nation's worst drug crisis, do so as well.

Our proposal would allow district attorneys to file a "superior court information," supported by factual depositions of witnesses, or go before a grand jury for an indictment, at their option. The standard for proof required would be the same in either case: reasonable cause as defined in the Criminal Procedure Law.

Today, judges routinely inspect the minutes of grand jury proceedings to see if the evidence supported reasonable cause; under our proposal, they would routinely inspect the witnesses' depositions looking for the same thing. There would be no extra work for judges. But there would be less work for overburdened police and prosecutors. And the system as a whole would move faster.

Judge Drury argues that grand jury indictments must be mandatory because sometimes complainants do not appear for trial, and that defendants would be kept in jail needlessly in those cases. That argument misses the fact that over 50 percent of the felony filings statewide involve only drugs or weapons -- cases in which the only "complainant" is a police officer. If district attorneys chose to file "superior court informations" in those cases alone, police officers would have to lose time preparing for and appearing before grand juries only half as much as they do now. They could better spend that time on the streets. And there would be no risk of a "complainant" not showing up for trial.

It is true that our proposal would require a high level of responsibility on the part of district attorneys; the power to charge someone with a felony carries with it an unavoidably heavy burden of responsibility. We think that our state's district attorneys can live up to that responsibility.

It is also true that the grand jury has been a good system over the years. It has served the state well in investigations of corruption, organized crime, large scale drug trafficking, and police misconduct. The grand jury can also well serve the district attorney -- and the interests of justice -- in other kinds of cases. For all these reasons, the grand jury system should be retained. But it should not be the only system.

MATTHEW T. CROSSON
Chief Administrator of the Courts
Albany

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