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Judge questions prosecutors' insistence on secrecy after black man's police chokehold death

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NEW YORK — Lawyers battling over whether the grand jury record in the chokehold death of an unarmed black man should stay sealed came under sharp questioning by an appeals court on Tuesday, with one judge asking whether secrecy was a way of glossing over prosecutors' role in a decision not to charge a white police officer in the case.

The four-judge state panel in Brooklyn heard the arguments in the case after the New York Civil Liberties Union and others appealed a March ruling keeping the minutes under seal. A lower-court judge agreed with the Staten Island district attorney's office that lifting the veil of secrecy in grand jury proceedings could subject witnesses to harassment or retaliation after they were promised anonymity, an argument repeated on Tuesday.

"The intense public scrutiny of this case should result not in disclosure but even more zealous protection," Assistant District Attorney Anne Grady said.

But Judge Leonard Austin zeroed in on accusations that then-District Attorney Daniel Donovan was being duplicitous in the Garner case for going to court to get permission for a partial disclosure of details like the number of witnesses, only to turn around and argue against the release of more meaningful information like the testimony of Officer and prosecutors' instructions to the grand jury.

"Your office seems to have wanted to put a very pretty gloss on what happened and kind of sweep everything under the rug and use grand jury secrecy as its protection," Austin said.

Pantaleo and other officers stopped Garner last July 17 on suspicion of selling loose, untaxed cigarettes. A video shot by an onlooker and widely watched online shows Garner telling the officers to leave him alone and refusing to be handcuffed.

The officer responded by wrapping his arm around Garner's neck in what he said was a sanctioned takedown move and not a banned chokehold. The heavyset Garner, who had asthma, is heard on the tape gasping, "I can't breathe." He later was pronounced dead at a hospital.

The medical examiner ruled Garner's death a homicide and found that a chokehold contributed to it. The death helped spark nationwide debate about the role of race in policing.

The judges on Tuesday also pressed the NYCLU and others on whether they had established a "compelling and particularized need" for the release of the grand jury record as required by law, a standard the lower-court judge found they failed to meet. Attorney Arthur Eisenberg responded that the disclosure was needed to better inform legislative proposals aimed at making grand jury deliberations more transparent.

NAACP attorney James Meyerson went further, saying disclosure was needed because allowing secrecy "reinforces the perception, if not the reality, that the system is rigged."

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