A New York Criminal Lawyer said the grand jury of April 1975 submitted four reports to the court concerning four separate investigations. All four reports were submitted pursuant to provisions of the Criminal Procedure Law and contain proposed recommendations for legislative, executive and administrative action in the public interest based upon stated findings. The Court is now required to determine whether an order shall be made either accepting and filing such reports as public records, or directing that such reports be sealed.
The New York State Constitution provides in part that the power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments or to direct the filing of information in connection with such inquiries, shall never be suspended or impaired by law. While the District Attorney is by statute a legal adviser to the Grand Jury, he may not dominate or control them in the lawful exercise of their primary function of making inquiry.
The first legislative act of the first colonial assembly in the New York colony was to establish (in 1683) the grand inquest as the sole method of criminal accusation. Thus transplanted to the New World this medieval institution continued in its supervisory role. By 1850, however, its moral power was perceived to be waning and detailed legislation was recommended to define and limit the ‘vague and unlimited’ powers of the grand jury. The Code of Criminal Procedure which the Commissioners on Practice and Pleading recommended made no provision for grand jury action other than the accusation of crime. Almost ninety years later delegates to a constitutional convention wondered whether a grand jury had any power to issue reports.
A New York Criminal Lawyer said that though lacking clear power to do so, grand juries continued to issue reports. Between 1900 and 1964 when the predecessor of Criminal Procedure Law 190.85, was enacted, every litigated case appears to have resulted in the partial or total quashing or expunging of a report save one. The most common reason for suppression of a report has been that it criticized identifiable individuals.
A Queens Criminal Lawyer said presentment is a foul blow. It wins the importance of a judicial document; yet it lacks the principal attributes–the right to answer and to appeal. It accuses but furnishes no forum for a denial. No one knows upon what evidence the findings are based. An indictment may be challenged–even defeated. The presentment is immune. It is like the hit and run motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.
The judicial antipathy toward grand jury reports culminated in a case wherein the court held that absent a clear legislative grant of authority, the Grand Jury had no power to issue reports critical of public officials but not alleging the commission of a crime.
A Nassau County Criminal Lawyer said grand jurors are not selected for their skill in appraising efficiency in public office or delving into matters more appropriately reserved for executive or legislative action. Moreover, the secrecy which necessarily surrounds the action of the grand jury prevents fruitful debate as to the merit of its charges, and the immunity which surrounds its members removes the normal restraint against recklessness. Under these circumstances, there is grave danger that grand jury reports may as readily be used as instruments of unfair partisan politics as of public enlightenment.
It is indisputable that public officers be held to a high standard of performance. It is also indisputable that free and open criticism of the conduct of public office is part of the very lifeblood of our democracy. But these propositions are as irrelevant to the issue before us as they are unassailable. What is at issue here is not the integrity of a public official or his performance in office, but rather the process or procedure to be employed in charging and judging him. To be deplored, and avoided in the absence of a clear grant of legislative authority, is not public criticism of officials, but criticism contained in a court report which, while it carries, at least, the aura of a judicial pronouncement, denies to the persons involved any of those safeguards designed to protect against the violation of cherished individual rights.
While it is true that neither a grand jury reporter nor the District Attorney nor anyone other than a grand juror may be present during the deliberations and vote of the grand jury, the grand jury was required to and did select one of their own members to act as secretary, whose duty it was to keep records material to the conduct of the grand jury’s business. Among these records should be a recording not of the vote of any grand juror, but of the result of any vote taken as well as a certification that at least twelve, with a quorum of at least sixteen members present, voted in favor of the action taken. Neither in the transcripts of the minutes nor in any other document filed with this court is there the slightest record of such vital and essential information concerning these reports. The reports themselves contain merely the signatures of the Forelady and the District Attorney, the latter being surplus age. District Attorneys are required to sign indictments but not reports.
The customary practice of filing a minute sheet signed by the secretary of the grand jury setting forth the existence of a quorum and the result of a vote of a grand jury was for some inexplicable reason not followed with respect to any of these reports.
The improper curtailment by the Assistant District Attorney of the grand jury’s right to inquire, as well as the failure to instruct the grand jury as to the making of a grand jury report gains added significance when considering the quantum of legally admissible evidence necessary for the publication of a report as contrasted to that required for the filing of an indictment. An indictment charging an offense is authorized when the evidence before the grand jury is legally sufficient to establish that such person committed such offense and competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense. A grand jury report may not be made public, however, unless the court is satisfied that it is supported by the preponderance of the credible and legally admissible evidence.
While concededly grand jury proceedings are not adversary proceedings, the concept of a Preponderance of credible and legally admissible evidence at very least implies an objective and fair presentation of the evidence, and that at least the grand jury not be prevented or curtailed from hearing contrary views or explanations of the conduct or activity they are about to criticize or seek to have changed.
The reports herein submitted criticize individuals who are clearly identifiable. They were expressly identified by name to the other witnesses appearing before this grand jury. The witnesses are not inhibited by the cloak of grand jury secrecy, and they may reveal such identity to whomsoever he or she pleases. The individual criticized cannot only be identified by anyone pursuing the matter, but a reading of articles in a daily newspaper in Nassau County in conjunction with these reports would immediately identify the individuals of whom the report is critical. Although the individuals have been divulged and criticized in the news media, to release these reports with the same or similar criticism would carry with it the aura of judicial pronouncement while depriving the individuals of the safeguards enacted to protect their rights.
There can be no doubt but that those members of the Grand Jury whose actions made this discussion and these decisions necessary were moved by pure motives and honest intentions. But this is not enough. A grand jury must meticulously observe those provisions of law which define and limit its powers and duties and the procedures it must follow. It did not do so here and this court is required to nullify the results of this failure. For the foregoing reasons, each of the reports will be ordered sealed.
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