Recommended Changes for Procedure of Supervising Grand Jury Judges

By Peter F. Vaira, for the March 9, 2020 edition of The Legal Intelligencer newspaper

The Grand Jury Task Force, formed by the Pennsylvania Supreme Court in 2017, issued its report in November 2019, recommending numerous changes to state grand jury procedure. This column discusses the changes recommended to the duties of the supervising grand jury judges’ position.

The report stated that the task force received considerable input from both jurists and practitioners regarding the role played by supervising grand jury judges. Information from other sources confirmed that the task force members were surprised at the comments received from the judges themselves as to the need for changes and training. The report said, “These contributors identified a list of obstacles … including inadequate training, limited written resources and insufficient support.” These comments are similar to comments made by the Pennsylvania Association of Criminal Defense Lawyers (PACDL), and my own comments in the Legal Intelligencer in the last several years.

Any private or public organization with operational responsibility to its members, including the military, which received a report with a page similar to page 20 of the task force report, would form a unit to address personnel, training and material issues with direct immediate action. The task force did not mince words in this section. The proposed changes will be discussed below.

  • Recommendation No. 1: A judicial training program should be established for new supervising judges.

This is an operational matter that should be addressed immediately. The task force report lists more than 20 topics that should be included in the training, including the role of the judge, and substantive issues such as grand jury secrecy, contempt of witnesses, conduct of attorneys, exercise of the Fifth Amendment privilege, and relationship with the commonwealth attorneys. Instructors for this training should include former prosecutors who have conducted grand jury investigations, experienced defense attorneys who have represented grand jury witnesses, and former federal or state judges who have dealt with these issues. There is a large body of federal cases that deal with these issues, which is very instructive.

  • Recommendation No. 2: A handbook should be developed as an ongoing resource for supervising judges.

This is a necessary addition to the training requirement. The practical issue is who would draft it and who would update it. This should be part of the responsibility of the persons in charge of the training. A significant issue here is that there is no statewide grand jury practice manual for practitioners, prosecutors or judges. The Office of Attorney General has been an independent elected position since 1980, yet none have attempted to issue some sort of suggested grand jury practice manual.

  • Recommendation No. 3: A handbook for grand jurors should be adopted.

This is a necessary follow-up to the judge’s handbook.

  • Recommendation No. 4. The Pennsylvania Supreme Court should consider funding for law clerk support for supervising judges of statewide investigating grand juries.

It is difficult to understand how this is an issue. Of course, the supervising judges need a law clerk. These judges are presented with new issues and problems that require research into new areas almost daily. There are few Pennsylvania cases for precedent. The last several cases decided by the Pennsylvania Supreme Court on grand jury practice indicate the complex and new issues in this area. One suggestion proposed to the task force was for one clerk to serve all statewide grand jury judges. This is simply not practical. The judge needs his law clerk to be familiar with all the issues presented to that grand jury and that judge’s approach. This will be very important if the grand jury judges are required to file their decisions for publication as I will discuss further below.

  • Recommendation No. 5: The clerk of courts of the county in which a statewide investigating grand jury is based should be identified as the filing office for that tribunal.

While this makes sense, apparently there is some confusion in the bar. The task force recommends a new procedure rule to ensure this occurs.

  • Recommendation No. 6: Whenever a statewide investigating grand jury is in session, the supervising judge should be on the premises or readily available to return to the premises.

This is simply good practice. In the U.S. District Court for the Eastern District of Pennsylvania, the judge assigned to a particular matter is present in the courthouse nearby. The task force has drafted a proposed rule to that effect to ensure the continued presence of the supervising judge.

  • Recommendations 7, 8 and 9:

The recommendations deal with procedures for maintaining grand jury transcripts, storing grand jury transcripts electronically and keeping certain statistics. These procedures are important and need no further comment here.

  • Recommendation No. 10: Supervising judges should be encouraged to submit their significant decisions for publication, redacted as necessary to protect grand jury secrecy.

They should be required to publish their decisions in a court authorized publication, which has the capacity for online accessibility for the bench and bar. This is a major problem in developing a body of grand jury case law. There are few published opinions for other grand jury judges to follow or distinguish or decline to follow. Practitioners have few precedents to offer in support of their arguments. State supervising judges strictly use grand jury secrecy for almost all cases, and seal almost all orders, thus providing no precedent, even as to that judge’s prior decisions. Federal courts publish all decisions with important redactions. For example, the U.S. Court of Appeals for the Third Circuit in the recent case of In re Subpoena, 2018, R00776, 2020, US App Lexis 842, Jan 10, 2020, redacted many factors, but published the decision as a precedent.

The grand jury practice in Pennsylvania will remain stalled until the bench and bar, as well as the public, learn what is taking place in the practice. By publishing all opinions, a body of case law will develop to benefit the practitioner and the judges. There is a wide body of federal grand jury cases. This has assured continual review by the congress, the public and the other judges. The same must occur in Pennsylvania. The Supreme Court can establish an official website overseen by a clerk of court, from which all such decisions are reviewable. This is another reason for supervising judges to have competent law clerks to assist them. This procedure needs to be established soon. Many of the other proposed changes will soon follow.

  • Additional Comments

The task force did not comment on the continuing need for supervising judges to be independent of the commonwealth attorneys who appear before the judge and grand jury. There have been numerous complaints from some jurisdictions. These problems should disappear with continual training and publication of supervising judges’ decisions. I offer a practical solution. The Supreme Court should appoint a former judge, to act as inspector/auditor, whatever title is appropriate, to review the work of the grand jury process and investigate complaints of impropriety or appearances of impropriety on the part of the supervising judges or the commonwealth attorneys. This person would report directly to the chief justice or a justice appointed by the chief justice, and the court could take whatever action as needed.

The task force recommends that the Supreme Court continue to address grand jury issues in published opinions. This is an important recommendation. The U.S. Supreme Court has issued numerous decisions on federal grand jury practice. The Pennsylvania Supreme Court should do the same. There are many areas that require comment and leadership from the court. Troublesome parts of the grand jury statute can be identified by the court. A good example of this is the Supreme Court’s striking grand jury reports without a criminal charge. See In re Fortieth Statewide Investigative Grand Jury, 197 A. 3d 712 (PA2518), and In re Grand Jury Investigation N. 18, Jan 22, 2020.

The changes discussed above should be addressed by the Supreme Court as soon as possible.

Peter Vaira is a member of Greenblatt Pierce Funt and Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as special hearing master for Pennsylvania courts and clients. He can be reached at p.vaira@gpfflaw.com.