Opinion
No. M-91-00432.
Decided July 12, 1991.
Arthur M. Ney, Jr., Prosecuting Attorney, pro se. John D. Henry, urging release of transcripts on behalf of amicus curiae The Cincinnati Post.
This matter is before the court upon application of the county prosecutor for an order to release certain grand jury transcripts to the county commissioners. The grand jury proceedings in question pertained to allegations of misconduct on the part of certain county building inspectors. No indictments were returned, although the proceedings have been completed.
The prosecutor asserts two grounds for release of the transcripts: (1) that they would assist the board of county commissioners in disciplinary hearings now pending against some building inspectors, and (2) that they would dispel allegedly unfounded criticism of the grand jury, which criticism engenders disrespect for the justice system and is a disservice to the community. In an amicus curiae brief filed on behalf of The Cincinnati Post, counsel for the Post concurs in the prosecutor's request, but asserts that the transcripts of the proceedings should be released to the public generally, rather than merely to the county commissioners or to the county prosecutor to do with as he pleases.
The court will first address the issue of alleged unjust criticism of the grand jury. This criticism is to be found in various news articles printed in the two local daily newspapers, The Cincinnati Post and The Cincinnati Enquirer; in an editorial published in The Cincinnati Post; in news broadcasts on Channel 9, a local television station; and in editorials broadcast by Channel 9.
The offending printed and televised material has been filed herein; and it is not necessary, therefore, to quote the material in its entirety. However, quotations therefrom are necessary to place the issue in perspective:
"Hamilton County building inspectors did not break the law, a grand jury has ruled * * *."
"[County Prosecutor] Ney would not discuss specific testimony because grand jury proceedings are secret by law.
"`I'd love to tell you,' Ney said. `You'd be shocked and rather surprised.'"
"The no-indictment announcement surprised Hamilton County Auditor Dusty Rhodes. `This will be seen as a cover-up,' he said." (The Cincinnati Enquirer; news article, June 27, 1991.)
"GO AHEAD, CHEAT AT WORK"
"Next time you feel like playing golf or taking care of personal business instead of going to work, just call in sick and do whatever you want. If your boss complains or tries to fire you, tell him Hamilton County Prosecutor Art Ney says it's perfectly OK.
"Ney and his mentor, Sheriff Simon Leis, were given the films WCPO-TV took of county workers goofing off when they were supposed to be working. Some even admitted it. They also turned over evidence that workers may have inflated the number of miles they drove on county business.
"Most people would consider that stealing. But Ney said a grand jury considered the evidence and determined that no crime was committed.
"Anyone who knows anything about the criminal justice system knows that grand juries will almost always follow the wishes of the prosecutor presenting evidence. Yet * * * Ney * * * could not convince a grand jury that taking money under false pretenses is illegal."
"AMAZINGLY, ART NEY COULD NOT CONVINCE A GRAND JURY THAT BUILDING INSPECTORS' ACTIONS WERE ILLEGAL"
"* * * Ney told the TV station that the grand jury had never even seen the videotapes of the county goof-offs. Ney's response was that it was illegal to disclose what happened before a grand jury and he'd like to speak to Channel 9 about its sources. Is Ney more interested in intimidating the media than in pursuing justice?
"* * * But the see-no-evil attitude at the county courthouse shows just why the media must be vigorous in ferreting out government waste and corruption.
"We certainly can't depend on the prosecutor * * * to do it." (The Cincinnati Post; editorial, June 27, 1991.)
"Democratic Hamilton County Auditor Dusty Rhodes said everyone he has talked to `can't believe' the grand jury did not return indictments.
"`Wrong is wrong and right is right. And what we saw was wrong. It clearly was an abuse. If that's not against the law, maybe we ought to get some new laws,' Rhodes said."
"Ney said the grand jury probe and sheriff's investigation was `thorough and complete.' * * *"
"The prosecutor said reporters would be `shocked and surprised' by how the grand jury felt about the case.
"He declined to explain.
"Officials at Channel 9 said they were `baffled' by the ruling * * *." (The Cincinnati Post; news article, June 27, 1991.)
"DEMOCRATS SET SIGHTS ON COUNTY OFFICES"
"Rhodes, Mirlisena say inspectors' case could undermine GOP strongholds."
"`It's an open invitation to the Democratic Party to make an effort to seek these offices,' Hamilton County Auditor Dusty Rhodes said, referring to the offices held by Sheriff Simon Leis Jr. and Prosecutor Arthur Ney Jr."
"`People are upset about this' he said. `They feel like people who work for the county are getting away with something.'"
"City councilman John Mirlisena, a Democrat, said the fiasco proved that there is poor leadership in the county and that a change is needed."
"The head of the Hamilton County Republican Party said Thursday that the grand jury's findings were non-political * * * [and that] * * * the inference that the Republican Party controls the grand jury is an affront to the integrity of the justice system * * *." (The Cincinnati Enquirer; news article, June 28, 1991.)
"* * * Today a grand jury found no criminal wrongdoing. What a crock! * * * That looks like stealing, but not to the grand jury. So, what did the grand jury see? What facts were they given? Well, there's the problem. The only facts put before any grand jury are the facts that the prosecutor and police want them to see * * *. [T]he sad thing is that there is no way to find out what was or wasn't presented to that jury. The rumor mill has been grinding for weeks, rumors saying there'd be no indictment because the Republican courthouse machine will close ranks and make sure none of those building inspectors will have to get up on a witness stand; because, if they do, some names will get named, some folks up the line might be exposed, and how many fires can the Republicans possibly fight at one time? * * * [H]amilton County leads the State in toxic sewage. Well, the toxins aren't just in our sewers." (WCPO-TV editorial commentary; date unspecified.)
"* * * Some people think the grand jury was manipulated into returning no indictments against the building inspectors * * *. [M]any are left wondering * * *. Prosecutors control the grand jury * * *. Until we know what remarks, instructions, and suggestions were made by the prosecutors to the grand jurors, we'll never really know that the system works." (WCPO-TV editorial commentary; date unspecified.)
The Ohio Rules of Criminal Procedure provide for the secrecy of grand jury proceedings:
"(D) Who may be present. The prosecuting attorney, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer * * * may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.
"(E) Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter * * * may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding * * *. No obligation of secrecy may be imposed upon any person except in accordance with this rule." Crim.R. 6(D) and (E).
R.C. 2939.19 provides as follows:
"No grand juror may state or testify in court in what manner any member of the grand jury voted or what opinion was expressed by any juror on any question before the grand jury."
The secrecy afforded grand jury proceedings is a tradition deeply imbedded in law:
"* * * `[S]ecrecy proved to be an effective means of reducing the influence of the King and guaranteeing the impartiality of the grand jury. * * *' * * * This use of secrecy to protect grand jurors from the abuses of the Crown dates from the 17th century; for the most part, grand jury proceedings since that time have been closed to the public and records of such proceedings have been kept from the public eye. * * *" McClatchy Newspapers v. Superior Court of Fresno Cty. (1988), 44 Cal.3d 1162, 1173, 245 Cal.Rptr. 774, 779, 751 P.2d 1329, 1334.
"From earliest times it has been the policy of the law to shield the proceedings of grand juries from public scrutiny, and statutes relating to the secrecy of such proceedings should be given a reasonable and liberal construction which will result in the accomplishment of the purposes for which they were enacted. * * *" (Footnotes omitted.) 38 Corpus Juris Secundum (1943) 1060, 1060-1061, Grand Juries, Section 43.
"It has long been the policy of the law, in furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret, and that, for most intents and purposes, all its proceedings should be legally sealed against divulgence. * * *" (Footnote omitted.) 38 American Jurisprudence 2d (1968) 984, Grand Jury, Section 39.
"* * * In 31 American Law Reports, 1479, the question before us is discussed, and the Ohio rule is the rule followed in an overwhelming majority of the states * * *.
"* * * [T]he majority rule is stated to be as follows:
"`In the majority of jurisdictions the rule obtains that the court will not inquire into the legality or sufficiency of the evidence on which an indictment is based, even if it is averred that the indictment was found without any legal evidence being produced before the grand jury. This view is based * * * on one or more of the following reasons: * * * that the secrecy of grand jury proceedings will not be invaded * * *.'" Wickline v. Alvis (1957), 103 Ohio App. 1, 10, 3 O.O.2d 105, 109, 144 N.E.2d 207, 213.
"The grand jury must function independently as an arm of the court and must have only minimal contacts with both the police and the prosecution. Without the strict application of Crim.R. 6(D), the sanctity and secrecy of the grand jury is threatened." State v. Achberger (Sept. 8, 1977), Summit App. No. 8282, unreported.
Various reasons have been put forward to justify the secrecy of the grand jury proceedings:
(1) To protect an accused, who is later exonerated, from public exposure.
(2) To deter escape.
(3) To insure that grand jury deliberations are free from outside influence.
(4) To protect grand jury witnesses who may later appear at trial.
(5) To encourage free and open discussion by grand jury witnesses. State v. Tenbrook (1987), 34 Ohio Misc.2d 14, 15, 517 N.E.2d 1046, 1047-1048.
(6) To prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted. State v. Levesque (Me. 1971), 281 A.2d 570.
(7) To protect the jurors themselves. 38 American Jurisprudence 2d (1968) 984, Grand Jury, Section 39.
(8) To ensure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. McClatchy Newspapers v. Superior Court of Fresno Cty., supra, 44 Cal. 3d at 1174-1175, 245 Cal.Rptr. at 780-781, 751 P.2d at 1335; Butterworth v. Smith (1990), 494 U.S. 624, 634, 110 S.Ct. 1376, 1382, 108 L.Ed.2d 572, 582.
The secrecy of grand jury proceedings is not, however, absolute:
"* * * [A]ppellant contends that the trial court erred in failing to allow him to inspect the grand jury transcript. Appellant filed a motion asking the trial court to dismiss the indictment and to allow him to inspect the grand jury transcript on the basis that the indictment against him was not based on probable cause and that it was founded on illegal and incompetent evidence.
"In State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, this court held in paragraph two of the syllabus that: `Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.' A `particularized need' has been described as: `when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial * * *.' State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 413, 478 N.E.2d 781, 785. Moreover, `the release of any such testimony for use prior to or during trial is within the discretion of the trial court.' Greer, supra, at paragraph one of the syllabus.
"As recognized above, appellant's motion to dismiss the indictment was premised on the argument that the indictment was not based on probable cause and was founded on illegal and incompetent evidence. The United States Supreme Court has held that: `The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence * * *.' United States v. Calandra (1974), 414 U.S. 338, 344-345 [ 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569].
"The record in the cause sub judice reveals no abuse of discretion on the part of the trial court in its denial of appellant's request to review the grand jury testimony. Furthermore, it is evident that by attacking the indictment on the basis that the grand jury acted upon inadequate or incompetent evidence, appellant has failed to demonstrate a particularized need to inspect the grand jury testimony. Nothing in the record indicates that appellant failed to receive a fair trial because he was not provided with the grand jury testimony. This proposition of law is without merit." State v. Davis (1988), 38 Ohio St.3d 361, 364-365, 528 N.E.2d 925, 928-929, 930.
"A Florida statute, with certain limited exceptions, prohibits a grand jury witness from ever disclosing testimony which he gave before that body. We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution." Butterworth v. Smith, supra, 494 U.S. at 626, 110 S.Ct. at 1378, 108 L.Ed.2d at 578.
"Historically, the grand jury has served an important role in the administration of criminal justice. * * * Today, grand jury secrecy remains important to safeguard a number of different interests." Id. 494 U.S. at 629-630, 110 S.Ct. at 1380, 108 L.Ed.2d at 580.
"* * * We must * * * balance respondent's asserted First Amendment rights against Florida's interests in preserving the confidentiality of its grand jury proceedings." Id. 494 U.S. at 630, 110 S.Ct. at 1380, 108 L.Ed.2d at 580.
"When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape — that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other. There is also no longer a need to prevent the importuning of grand jurors since their deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears of retribution is, we think, not advanced by this prohibition; any witness is free not to divulge his own testimony, and that part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling of the Court of Appeals." Id. 494 U.S. at 632-633, 110 S.Ct. at 1381-1382, 108 L.Ed.2d at 582.
"Florida undoubtedly retains a substantial interest in seeing that `persons who are accused but exonerated by the grand jury will not be held up to public ridicule.' Douglas Oil Co. [ of California v. Petrol Stops Northwest], supra [ 441 U.S. 211], at 219, 60 L.Ed.2d 156, 99 S.Ct. 1667 [at 1673 (1979)]. And the ban in question does serve that interest to some extent, although it would have the opposite effect if applied to a witness who was himself a target of the grand jury probe and desired to publicize this testimony by way of exonerating himself. But even in those situations where the disclosure by the witness of his own testimony could have the effect of revealing the names of persons who had been targeted by the grand jury but exonerated, our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech. See Landmark [ Communications, Inc. v. Virginia], supra [ 435 U.S. 829], at 841-842, 56 L.Ed.2d 1 [at 12], 98 S.Ct. 1535 [at 1542-1543 (1978)] (`Our prior cases have firmly established * * * that injury to official reputation is an insufficient reason for repressing speech that would otherwise be free') (quotation omitted); cf. The Florida Star v. B.J.F. [ 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989)], supra * * *." Id. 494 U.S. at 634, 110 S.Ct. at 1382, 108 L.Ed.2d at 582-583.
The foregoing authorities pertain to revelation to litigants, under certain circumstances, of testimony presented to the grand jury, and to revelation to the public by a witness of testimony that he himself gave to the grand jury. In the matter under consideration, however, we are concerned with the proposed revelation to the public, not by witnesses themselves, of all the testimony presented to the grand jury. We are not concerned with the right of a criminal defendant who asserts a "particularized need" to access to grand jury proceedings, nor of a civil litigant who might assert such a need to protect his interests in a matter being litigated. There is a dearth of authority in Ohio on the exact question before the court. The following statements from cases from other jurisdictions bear upon the subject:
"The above entitled criminal cases have been tried to conclusion resulting in acquittals of all defendants. * * * [C]onsiderable notoriety has attended the proceedings. * * *
"The Prosecutor of Passaic County now seeks an order that
"* * * All the testimony presented before the Passaic County grand juries during the course of the investigation of the above-entitled murder cases be released to the general public through the facilities of the new media.
"* * *
"The prosecutor contends that an article entitled `Murder, New Jersey Style,' published in the March 10, 1970 issue of Look Magazine is adversely critical of the role of his office; that it does not present an accurate picture of the investigation of the murder cases, and that if the article goes unanswered it will seriously undermine public confidence in law enforcement in Passaic County. He now seeks public disclosure of the aforesaid materials to prevent `a great travesty upon justice and irreparable harm to members of the Passaic County Prosecutor's Office.'
"* * *
"In reality the prosecutor is seeking to retry the cases in the press. He hopes to establish justifiable cause for the actions of his office by public disclosure of the materials in his hands. * * * Were he or members of his staff prosecuting a libel action or defending a malicious prosecution suit, a disclosure of the materials might be appropriate if relevant to the issues in such litigation. But here there are no such issues being presently litigated.
"The use of the news media as a forum for the resolution of issues in criminal cases has been disapproved. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) * * *. The defense as well as the prosecution is prohibited from resorting to the news media for the purpose of creating a climate of favorable opinion before a trial. * * * Why should a prosecutor be privileged to release evidence to the news media tending to prove defendants' guilt after they have been acquitted? No authority for such a proposition has been submitted. Indeed, the whole rationale of our criminal law suggests the contrary. * * * Much of the material which is developed during the course of an investigation is inadmissible at a trial. It may consist of hearsay, suspicion, innuendo or opinion. Such material may serve a valuable investigatory purpose and yet not be admissible at a trial. To disclose it all now, after the trials have been concluded, would be manifestly unfair.
"* * *
"Traditionally, the proceedings before a grand jury are secret. * * * There are many reasons why this must be so. * * * [T]he veil [of secrecy] may be broken in the discretion of the court if disclosure * * * would be pertinent to pending judicial proceedings. * * * Public disclosure, however, has not been sanctioned.
"The prosecutor suggests that the interest of persons other than the defendants may be protected by having the court examine the grand jury testimony and other material and exclude those portions which might be inimical to the interest of such persons. And for what purpose is the court asked to play the role of censor? Essentially the purpose to be served is a private one.
"* * *
"The motion will be denied." State v. Kearney (1970), 109 N.J. Super. 502, 504-507, 263 A.2d 817, 818-819.
"Gary May, an associate professor of history at the University of Delaware, petitions for an order releasing the minutes of the Special Federal Grand Jury sitting from December 16, 1948, through June 15, 1950 that pertain to William Walter Remington. Professor May is writing a book about Remington, a prominent public official who was accused during the McCarthy era of being a Communist. The Government opposes May's petition.
"It is clear that petitioner's request does not fall within the legislatively defined exceptions of Fed.R.Crim.P. 6(e). It has, however, been established in this circuit that in an extraordinary case the court need not confine itself to the strictures of Rule 6(e) * * *.
"Five objectives for maintaining grand jury secrecy have been identified by the Supreme Court.
"* * *
"None of those objectives has the remotest application to the situation at bar. The events which occurred in and were explored by the grand jury happened over 35 years ago, and the trial has similarly long since concluded. The principals involved in the grand jury proceedings are all dead, with the exception of Remington's former wife, who has already been interviewed by Professor May. * * *
"In determining whether to disclose grand jury materials, we must balance the public interest in disclosure against the interest in continued grand jury secrecy. * * * Given the * * * undisputed historical significance of the Remington episode, the public has a strong interest in having its understanding of the administration of justice in this case based on complete and accurate historical evidence. [Footnote omitted.]
"In the exercise of our discretion, we grant the petition. * * *" In re May (S.D.N.Y. 1987), 13 Media L.Rptr. 2198, 2198-2199.
"Action by the First Amendment Coalition seeking access to transcripts of grand jury proceedings.
"Request for access granted.
"* * *
"Traditionally, and by Statute, A.R.S. § 13-2812, Grand Jury proceedings are required to be kept secret. * * *
"In very few instances, and never in Arizona, have transcripts of Grand Jury proceedings been released by Court Order to the press. Only in the extraordinary case having significant historical interest has such an Order been issued. * * * Even in such cases, in determining whether to disclose Grand Jury material, the Court must balance the public interest in disclosure and the interest in continued Grand Jury secrecy. * * * This determination must still take place even though the criminal charges have been resolved and the Grand Jury Panel has been discharged. * * * The primary concern here is the impact on future Grand Juries and witnesses who may be called to testify before them. * * *
"* * *
"* * * Disclosure will permit the public to be fully informed about the operation of the criminal justice system in this case. * * *
"The Mecham case is unique in Arizona criminal justice history. * * *" Arizona v. Mecham (Ariz.Super.Ct. 1988), 15 Media L.Rptr. 2151, 2151-2152.
Mecham was governor of Arizona, and was successfully removed from office by the impeachment process. Several other lawsuits were generated by the impeachment, including a suit by Mecham against the Arizona Senate. See Mecham v. Gordon (1988), 156 Ariz. 297, 751 P.2d 957; Mecham v. Arizona House of Representatives (1989), 162 Ariz. 267, 782 P.2d 1160; Ingram v. Shumway (1990), 164 Ariz. 514, 794 P.2d 147.
The last two cases from which quotes were given support another exception to grand jury secrecy. The exception, which might properly be termed the historical-interest exception, has been invoked with extreme rarity. Under this exception, grand jury proceedings have been opened to the public in a long-completed case of historical interest, or in a recent case involving matters of unique, statewide, historical interest. Needless to say, the present case, despite the inflamed rhetoric which has surrounded it, is not possessed of such uniqueness or historical value as to justify the use of this rare exception. The persons involved are still very much alive; and disciplinary proceedings related to this matter are just about to begin. If the grand jury proceedings in this case were to be opened to the public on the basis of the historical-interest exception, the secrecy of the grand jury would be trivialized, and such secrecy violable in virtually every publicized case involving some controversy, real or manufactured.
From all of the foregoing, it is evident that the secrecy surrounding grand jury proceedings is a legal tradition older than the United States itself; that such secrecy is still upheld uniformly in the courts; and that only two exceptions to the secrecy requirement are normally involved, to wit: where a "particularized need" for disclosure has been established in a pending judicial proceeding, criminal or civil, by a party thereto, and where, after the term of the grand jury has ended, a witness reveals what he himself disclosed to the grand jury.
Crim.R. 6(E), quoted more fully above, states, in simple fashion, the law discussed in more complex fashion in many reported cases:
"* * * A grand juror, prosecuting attorney * * * stenographer * * * may disclose matters occurring before the grand jury, other than the deliberations of a grand juror or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding * * *." (Emphasis added.)
As a second ground for release of the transcripts, the prosecutor argues that their release would simplify disciplinary proceedings against certain building inspectors. These disciplinary proceedings are about to begin before the county commissioners.
Hearings before the county commissioners are not judicial proceedings. Release of the grand jury transcripts for a nonjudicial hearing is not provided for in Crim.R. 6(E). Releasing grand jury transcripts to simplify preparations for a nonjudicial hearing would clearly violate the Criminal Rules and the precedents set forth in the authorities cited above.
The county prosecutor, joined by The Cincinnati Post, requests this court to release grand jury transcripts, not in connection with a judicial proceeding, but to dispel, or confirm, unpleasant rumors and allegations reported in, or made by, the media and various local political personalities. The law is clear that the veil of secrecy surrounding grand jury proceedings is not to be lifted for such purposes.
In other words, the prosecutor made the conscious decision to present the matters in question to a grand jury (which, admittedly, is the usual procedure), rather than proceeding upon information to by-pass the grand jury. The prosecutor must accept the fact that grand jury proceedings, being secret, can become the source of rumor and speculation.
The media must accept the fact that the grand jury proceedings are traditionally secret and will not be opened to public view to satisfy their curiosity.
The grand jury in this matter performed its duty. It is unfortunate now that so much speculation of an adverse nature has been placed upon its work. Few seem to understand that jury decisions, like judicial decisions, often disappoint, and seem incomprehensible to litigants and others emotionally interested in the outcome. This may explain why it has apparently not occurred to any of those who have commented so vigorously about this matter, that the grand jury can be fiercely independent and have a mind very much its own.
For all of the foregoing reasons, the application for release of grand jury transcripts, proposed by the prosecutor and concurred in by The Cincinnati Post, is hereby denied.
The prosecutor will, at his earliest convenience, present the court with the appropriate entry denying the application. The entry shall incorporate this opinion by reference. The court will, in the meantime, have this opinion filed and docketed.
So ordered.