February 12, 2020

By: Gaetan J. Alfano , Douglas K. Rosenblum

On Jan. 22, the Pennsylvania Supreme Court issued a unanimous opinion ordering the permanent sealing of a grand jury report relating to allegations of sexual abuse and a potential coverup. In the opinion, In re Grand Jury Investigation No. 18, the Supreme Court concluded that because the report did not meet the Investigating Grand Jury Act’s statutory definitions of an “investigating grand jury report,” it could not be released to the public.

This decision comes on the heels of a November 2019 Grand Jury Task Force report that recommended abolishing investigating grand jury reports entirely.[1] From our point of view, it appears that investigating reports are on their way out.

The Investigating Grand Jury Act authorizes only two options for proceeding against an individual: a presentment recommending criminal charges or an investigating grand jury report.[2] Where a presentment is not an option — a common outcome for any number of reasons, including, importantly, that there is simply not enough evidence to proceed on criminal charges — an investigating grand jury report may be considered.

As the Supreme Court recognized here, however, the use of investigative grand jury reports must be greatly limited in their reach, because of their impact on the constitutional rights of those named within them.

Generally, the Investigating Grand Jury Act authorizes the judge supervising grand jury proceedings to make public an investigating grand jury report.[3] But the act’s two-prong definition of an “investigating grand jury report” is narrow. Specifically, only reports that regard “conditions relating to organized crime or public corruption, or both; or that propose recommendations for legislative, executive, or administrative action in the public interest based upon stated findings” meet the act’s definition.

Reports that fail to meet those strict definitions cannot be released.[4] The petitioner here argued that the report in question did not meet the act’s limited definitions. The report, the petitioner argued, related only to his personal conduct, and was merely an attempt to shame and punish him.

The Supreme Court unanimously agreed, despite the court’s recognition that the allegations discussed in the report spanned 40 years, affected numerous children and involved attempts to influence victims from disclosing the crimes against them. Those harsh facts were simply not enough to bring the matter within the narrow categories deemed appropriate topics for investigative grand jury reports.

In concluding that the report did not meet the statutory definition that would allow for its public release, the Supreme Court boldly, yet easily, determined that the report “indisputably [did] not relate in any way to organized crime or public corruption.”[5] The Franklin County district attorney, who had initially moved for the empaneling of the grand jury, argued that the report met the second prong of the definition because it proposed executive or administration actions.

Though the Supreme Court seemed to grapple with that question, it ultimately rejected that argument as well. Notably, the Supreme Court found that the “District Attorney fail[ed] to explain … how the recommended actions in the Report are ‘in the public interest’ as opposed to the interest of a specific group, such as the alleged victims.”[6]

Instead, the recommended actions focused only on “(1) punishing a specific person for alleged criminal conduct for which the person cannot be tried due to the running of the relevant statutes of limitation; and (2) providing resources and catharsis to the victims of these alleged crimes.”[7]

Though the Supreme Court recognized that the public may have “generalized interest in governmental action that brings healing to victims of unspeakable abuse,” it found that it is:

not in the “public interest,” as contemplated by the Act, to utilize an investigating grand jury report to mete out punishment or provide relief for specific victims of unproven, albeit serious, crimes when the traditional means of bringing an individual to justice – e.g., criminal prosecution – are otherwise unavailable.

Indeed, the Supreme Court rejected the supervising judge’s view that the report was necessary simply because the investigation uncovered multiple additional victims.[8] This finding that actions in the interests of specific alleged victims — even in a case with multiple victims spanning decades — do not constitute actions in the general public interest under the act is an important limitation on the use of the grand jury as a publicity tool.

The limitation is also particularly interesting in light of the recent recommendations in the Grand Jury Task Force report. As noted above, the task force recommended that grand jury reports be eliminated altogether.

The task force recognized at the outset of its report that the investigating grand jury has just two dual purposes: investigating crime and protecting the citizenry from unfounded criminal charges.[9] The majority of the task force found that the release of grand jury reports does not advance those two goals, concluding that grand jury reports are “contrary to the American grand jury’s traditional role as the protector of individual rights” and the normal course of creating and disseminating a report implicates “significant due process concerns.”[10]

In sum, the task force found that “the Investigating Grand Jury Act authorizes a reporting process that is deeply flawed.”[11]

In reaching this conclusion, the task force majority first considered that because grand jury reports are created in a “markedly one-sided process,” their value is “questionable.” Without the traditional adversarial process implemented in other court proceedings, the results of a grand jury inquiry contained within a report “lack … indicia of trustworthiness.”[12]

Absent that level of trustworthiness, it can even be argued that the release of investigative grand jury reports can be downright dangerous — as the task force recognized instances where Commonwealth attorneys have used reports for improper reasons, including a desire for political retribution.[13]

As the majority of the task force further noted in the report, the release of investigative grand jury reports violates due process guarantees.[14] This concern was particularly true in this case, as the petitioner — who was not charged with any crime — was identified by name throughout the report. The report even initially included his picture.

Although the petitioner did challenge the release of the report on due process grounds and the overall constitutionality of the Investigating Grand Jury Act as applied to him, the Supreme Court did not address that issue, because it granted relief on the statutory question of whether the report met the definitions in the Grand Jury Act.[15]

And finally, as 20 other states have recognized, an investigative grand jury report is simply not necessary. The task force identified multiple governmental entities within the state that serve a “watchdog” function, including the General Assembly and its various committees, the Auditor General and the Inspector General, and the Commonwealth’s executive departments. What is more, as the task force recognized, many of these entities hold entirely public hearings that allow for debate and the introduction of opposing views.[16] The investigating grand jury does not provide the safeguards of opposing view and cross-examination.

The Supreme Court’s opinion is a decisive limitation on the public release of investigative grand jury reports. That opinion, in combination with the criticisms in the Grand Jury Task Force’s report, suggests that the future of grand jury reports is uncertain. The landscape for grand jury reports is changing.

[1] You can find the full 2019 Grand Jury Task Force Report at http://www.pacourts.us/assets/files/page-255/file-8214.pdf.

[2] See 42 Pa.C.S. § 4542, 4551-4552.

[3] 42 Pa.C.S. § 4552(b).

[4] 42 Pa.C.S. § 4542.

[5] In re Grand Jury Investigation No. 18, No. 18 MM 2019, at p. 9.

[6] Id. at p. 7.

[7] Id. at p. 10.

[8] Id. at p. 4.

[9] Report and Recommendation, Investigating Grand Jury Task Force, Nov. 2019, at p. 6.

[10] Id. at p. 53.

[11] Id. at 55.

[12] Id. at p. 53.

[13] Id. at p. 52.

[14] Id.

[15] In re Grand Jury Investigation, No. 18 MM 2019, at p. 1.

[16] Id. at p. 56.

Gaetan J. Alfano, Jennifer H. Bouriat, and Douglas K. Rosenblum, PA Justices’ Ruling May Rein in Grand Jury Report Releases, Law360 (February 12, 2020), https://www.law360.com/articles/1242712/pa-justices-ruling-may-rein-in-grand-jury-report-releases