Kentucky Secrecy Opinion

JEFFERSON CIRCUIT COURT

DIVISION THIRTEEN (13)

GRAND JURY JUDGE FOR FEBRUARY, 2003

IN RE: GRAND JURY INVESTIGATION OF JAMES TAYLOR

The February Grand Jury was recently charged with investigating the shooting and death of Mr. James Taylor by Mr. Michael O’Neil and has today returned a “No True Bill” against this officer. This Court believes that the extensive amount of time spent on this investigation by this Grand Jury clearly shows it attempted to resolve all questions surrounding the death of Mr. Taylor. This Court and the Grand Jury, composed of citizens of this community, shall accept that the Commonwealth Attorney’s Office presented the evidence in such a manner that if criminal charges should have been brought against Mr. O’Neil, the February Grand Jury would have brought the appropriate charges.

The Jefferson County Commonwealth Attorney’s Office, through its elected representative, the Honorable David Stengel, has requested that this Court release the testimony presented to the Grand Jury on this matter. The target of the investigation, Mr. O’Neil, has no objection. Obviously, the Commonwealth believes that this request would assure the citizens of this community that every bit of evidence necessary to present formal charges was brought before these twelve jurors. Unfortunately, this Court must look beyond the wishes of the prosecutor and recognize the sanctity of grand jury proceedings, which historically are not public fora. The request is therefore denied. The Commonwealth of Kentucky Rule of Criminal Procedure 5.24 reads in pertinent part: “Subject to the right of a person indicted to procure a transcript or recording...and subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret . . .”. (Emphasis added).

The grand jury originated in England. It was intended to serve as a buffer between the King and his subjects. The theory was that by summoning persons from the community who were likely to know the person under investigation, the grand jury would protect the common folk from arbitrary and oppressive action by the Crown. Our founders considered the grand jury to be an essential part of criminal prosecution. Consequently, Section 12 of the Commonwealth of Kentucky’s Constitution provides that prosecutions for serious crimes may only be instituted by the action of a grand jury. Historically, the actions of grand juries have not been subjected to public scrutiny.

“Many years ago, the U.S. Supreme Court explained why grand jury proceedings are secret. According to the Court, which was relying on earlier common law, there are four reasons why grand jury proceedings are secret. Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with the investigation. It encourages witnesses who might be reluctant to testify if their comments were made public to speak freely when they are brought before the grand jury. It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges. And, finally, it protects innocent persons whose names may be implicated in a grand jury investigation but who will never be indicted.”^[1]

The Federal Rules of Criminal Procedure also contain similar secrecy provisions. “The Federal Rules of Criminal Procedure make it abundantly clear that grand jury proceedings are absolutely secret. There are three exceptions: (1) During the pendency of criminal trial proceedings the contents of certain portions of the grand jury transcripts may be made available to the defendant's attorneys as part of the discovery/preparation process; (2) A witness in the grand jury is free to reveal his or her own testimony; and (3) Government employees working on the matter may see the testimony. Other than the foregoing, no participant in the proceedings, including grand jurors, court reporters and prosecutors, may reveal (and certainly and absolutely not to the public) what is said in the grand jury. Criminal and contempt proceedings can, and have in the past, flowed from such improper revelations.”

There is no question that grand jury proceedings have long been considered secret in nature. “Grand jury secrecy is as important for protection of the innocent as for pursuit of the guilty, and, absent clear indication in statute or rule, court must always be reluctant to conclude that breach of secrecy has been authorized.” See U.S. v. Sells Engineering, Inc., 463 U.S. 418 (1983); Fed.Rules Cr.Proc.Rules 6, 6(e), (e)(2, 3), (e)(3)(A), (e)(3)(A)(i, ii), (e)(3)(B), (e)(3)(C)(i), 18 U.S.C.A. (Emphasis added). The Federal Rule of Criminal Procedure 6(e)(3)(C)(i) does provide that the disclosure of matters otherwise prohibited by Rule 6 of matters occurring before the grand jury may be made when so directed by a court "preliminary to or in connection with a judicial proceeding." U.S. v. Sells Engineering, Inc., supra; U.S. v. Baggot, 463 U.S. 476 (1983). This rule allows disclosure upon a strong showing of "particularized need" in civil cases, including bankruptcy adversary proceedings. In re Shenker, 157 B.R. 21 (E.D. Mo. 1993). It may also extend to certain administrative hearings if they are preliminary to judicial proceedings. Attorney disciplinary hearings are included in this exception. Matter of Federal Grand Jury Proceeding, 760 F.2d 436 (2d Cir. 1985).

It is the responsibility of each grand juror to maintain the secrecy of the grand jury's proceedings. This means that the grand jurors should discuss grand jury matters only within the grand jury meeting room. Grand jurors can only be released from their permanent obligation to keep the grand jury proceedings secret by order of a judge.

While this Court has discretion, and the rule provides that this Court could release the proceedings, it is essential to understand that the only reasons this Court has been given this authority are to prevent potential perjury, to address allegations of malfeasance within the Grand Jury itself or to release information if the proceedings are connected with another judicial proceeding. It is important to understand in a Grand Jury investigation that there are no rules governing testimony or the questions asked by the jurors. Thus, witnesses may freely offer hearsay evidence, evidence that could be suppressed because of the exclusionary rule, and opinion evidence. There is little necessity to establish a foundation for the proffered testimony. It is also imperative to recognize that testimony before the grand jury may also be unreliable in that the accused has no opportunity to confront the witnesses against him.

Obviously, grand jury proceedings may be seen as a two-edged sword; the proceedings permit charges to be brought without substantial evidence, and an indictment may thus be returned against an individual who will later be found not guilty by a petit jury. Conversely, the grand jury investigation is often used to protect those individuals who should not be charged with an indictable offense.

When a grand jury permits the accused to testify, it gives the accused the right to explain his actions and to offer any defenses he/she might have. Often, the accused, if he presents himself correctly, can obtain sympathy from twelve people which will result in a “No True Bill.” After all, the accused need only convince four people of his innocence to avoid indictment. Still, if the accused testifies the prosecutor may obtain testimony from the him which may implicate him as to the charges being brought or in perjury charges, if it can be discovered that he is not testifying truthfully (nowhere is this truism more keenly illustrated than in the Mel Ignatow cases).

So it is that while grand jury proceedings are far from perfect, they provide the Commonwealth invaluable opportunities to seek justice for its citizens. However, the limitations of the system, as noted above, are part and parcel of why the United States Supreme Court and the lower Courts of this nation have shrouded the grand jury proceedings in confidentiality. It is this Court’s belief that the intent of our criminal rule was never to permit the wholesale release of Grand Jury testimony at the whim of the Grand Jury Judge, and while the Court has discretion in this area, exercising that discretion would set a dangerous precedent for potential abuse. While there are cases that have been decided in other jurisdictions that have released portions of grand jury proceedings, as a general rule these are specific requests for certain portions of the record which relate to civil or pending criminal matters or a showing of “particularized or compelling need.” In re Jessup Petition, Del., 136 A.2d 207 (1957); State v. Hartfield, Ore., 624 P.2d 588 (1981).

The United States Supreme Court reiterated this point in Douglas Oil Co. V. Petrol Stops Northwest, 441 U.S. 211, 222 (1979), stating: “[a] strong showing of particularized need for grand jury materials must be made before any (C)(i) disclosure will be permitted by court order. The party seeking disclosure must show that the material sought is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only material so needed.” See also Dennis v. U.S., 384 U.S. 855 (1966); U.S. v. Proctor & Gamble Co., 356 U.S. 677 (1958). The Commonwealth maintains the testimony before the Grand Jury should be released, in that “pressure” has been brought to bear on the Commonwealth Attorney’s Office “to do the right thing,” as every social and political interest group, including the media, has had an opinion on this particular matter.

Aside from the Commonwealth’s assertion of such, there is no evidence before this Court regarding this pressure. Indeed, every single day the prosecutor’s office is under pressure “to do the right thing,” and this case is no different from the multitude of matters the Commonwealth has had before it. The Commonwealth in this case has therefore failed to show a “compelling or particularized” need for disclosure of the testimony before the February Grand Jury. However, this grand jury proceeding was, this Court assumes, presented with the investigation that was conducted by the assigned prosecutor and the appropriate law enforcement agencies; therefore, while this Court is bound by historical and case precedent to deny release of the grand jury investigation, there is no statute or rule restraining the Commonwealth Attorney’s Office from releasing its own investigation for the public to review and scrutinize. Given the well-established law regarding this Court’s duty to ensure secrecy of grand jury matters, and the relative paucity of law regarding the Commonwealth’s duty to keep its own investigations secret, the Court is of the opinion that the Commonwealth should not attempt to shift the heavy burden of public disapproval it may face for failing to indict Mr. O’Neil to this Court.

WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED that the request for the release of testimony before the February Grand Jury regarding the death of James Taylor be and hereby is DENIED.

^[1] Brenner, Susan, “Why Don’t We Hear More About Grand Juries?” Federal Grand Jury, University of Dayton Law School. http//www udayton.edu/-grandjur/faw/faq7.htm (2/23/03)