Commonwealth, Appellant, v. McCloskey.
Supreme Court of Pennsylvania
May 13, 1971
June 14, 1971
217 Pa. Superior Ct. 788 | 269 A. 2d 151
reargument refused June 14, 1971.
Howard Gittis, with him Steven A. Arbittier, and Wolf, Block, Schorr and Solis-Cohen, for appellees.
Thomas J. Mullaney and John T. Clary, for appellee.
James Francis Lawler, with him Ostroff & Lawler, for appellee.
Henry T. Reath, with him Robert L. Pratter and Duane, Morris & Heckscher, for appellee.
Jacob Kalish, with him Louis M. Natali, Jr., and Dilworth, Paxson, Kalish & Levy, for appellee.
John Patrick Walsh, David N. Savitt and Walsh and Savitt, for appellee.
Donald J. Goldberg, for appellee.
OPINION BY MR. JUSTICE ROBERTS, May 13, 1971:
The Commonwealth here appeals from decisions by an evenly divided Superior Court1 affirming various orders of the Philadelphia Court of Common Pleas
As to the former issue, we believe that an indictment based upon an investigating grand jury‘s presentment directly to an indicting grand jury with leave of court is lawful, even though no preliminary hearing was held. Concerning the assistance of counsel and the right against self incrimination, while we do not today hold that a witness is entitled to have counsel present in the hearing room or that he is entitled to step outside the door and consult with counsel after every question, we do believe that a witness should receive a warning by the court in charge of the investigating grand jury that if the witness is confused or believes his answer might be incriminating, he may come before the court accompanied by counsel and be advised of his rights. This procedure wаs not followed with reference to certain of the individual appellees now before us. Accordingly, those indictments in any way based upon a defendant‘s own testimony given without this warning and in violation of his right against self incrimination must be quashed.
I. BACKGROUND
The investigating grand jury of April Term, 1969, was convened by court order pursuant to a petition
a. Frank M. Steinberg
After hearing numerous witnesses and receiving voluminous evidence, the investigating grand jury returned a presentment2 on August 18, 1969, requesting that appellee, Frank M. Steinberg, a former Chairman of the Philadelphia Housing Authority, be indicted on several counts.
The court in charge of the investigating grand jury (SLOANE, J.) accepted the presentment, and the district attorney with leave of court then submitted the recommendations to the September indicting grand jury, which returned true bills against appellee Steinberg charging him with malfeasance, misfеasance and nonfeasance in office; conspiracy; deposit of public money for gains; violation of the State Adverse Interest Act; practice of corrupt solicitation; and corrupt solicitation.3 All these indictments were returned without any complaint having been issued or any preliminary arraignment or preliminary hearing having been held.
Appellee filed several pre-trial motions challenging his indictments, all of which were argued during the week of June 22, 1970, when similar motions by the other appellees in this case were also being heard. Steinberg‘s motion to quash was granted on the basis that he had been deprived of his right to a preliminary hearing, and hence his motions for suppression of evidence, pre-trial discovery and severance were dismissed as moot by the court (SPAETH, J.). The Commonwealth appealed from the granting of the motion, and the Superior Court affirmed by an evenly divided court.4
The same April, 1969, investigating grand jury returned a separate prеsentment5 on September 4, 1969, recommending indictments against the other appellees on various charges relating to the construction of an all purpose municipal sports stadium in Philadelphia costing approximately $50,000,000. The court (SLOANE, J.) accepted the presentment.
Defendant Thomas Taylor, the district manager of H. H. Robertson Company, the steel subcontractors for the stadium, petitioned the court in charge of the investigating grand jury to grant him a preliminary hearing. His petition was denied, and his appeal to the Superior Court was quashed.
Then, on October 1, 1969, defendant H. H. Robertson Company itself filed a petition before the court in charge of the October, 1969, indicting grand jury (SPAETH, J.) seeking to restrain the district attorney from presenting the investigating grand jury‘s recommendations to the indicting grand jury until a preliminary hearing had been held, or else until certain conditions had been imposed on the manner in which the evidence was to be presented to the indicting grand jury. Defendants McClоskey and Company, Inc., the general contractor for the stadium, and James C. McCloskey, the firm‘s executive vice president, filed similar petitions on October 3, 1969, and defendants Paul Marzullo, Director of Architecture and Engineering for Philadelphia, and Harry Blatstein, the stadium coordinator, did likewise on October 6, 1969.
On October 24, 1969, Judge SPAETH entered an order dismissing defendants’ petitions, setting forth his reasons for his action in an opinion, In re Petition of H. H. Robertson Company, September Term, 1969, Miscellaneous No. 7540. The district attorney then present
The President Judge of the Philadelphia Court of Common Pleas10 assigned all the foregoing cases to Judge SPAETH “for all pre-trial and post-trial motions
In a separate opinion dealing with defendant James McCloskey‘s petition to quash, Judge SPAETH ruled invalid an indictment based in part on testimony obtained in violation of a defendant‘s rights under the
The Commonwealth appealed these decisions to the Superior Court which affirmed them all without opinion11
II. NECESSITY OF A PRELIMINARY HEARING
a. Rules of Criminal Procedure
Appellees urge that their indictments are invalid because they violate the Pennsylvania Rules of Criminal Procedure which, in their view, establish a comprehensive procedure for the institution of all criminal prosecutions.
The issue, simply stated, is whether these Rules of Criminal Procedure have abrogated the power of a prosecuting official to submit an investigating grand jury presentment directly, with leave of court, to an indicting grand jury, a power which was a traditional and established exception to the normal procedure of instituting criminal proceedings by criminal complaint and preliminary hearing.17
As noted above,
In his October, 1969, opinion Judge SPAETH accepted the Commonwealth‘s view of the Rules. The principal reason for altering his view on this issue in the July, 1970, determination, was his reading of the opinion of this Court in Commonwealth v. Rose and Commonwealth ex rel. Magaziner v. Sheriff, supra.
Initially we note that while Judge SPAETH may have been understandably misled by Rose and Magaziner,
No challenge to a grand jury presentment or the powers of a special investigating grand jury existed in Rose and Magaziner. Furthermore, the opinion‘s language concerning the Rules of Criminal Procedure stressed that the Rules applied to common pleas judges sitting as committing magistrates. The opinion was limited to that factual situation. This Court in no wаy there settled the question of whether the criminal rules pertaining to complaint and preliminary hearing superseded the other historical methods of commencing criminal prosecutions.
While the Rules are silent on special grand jury functions, we agree with the Commonwealth that
Moreover, even in the absence of
Several of the appellees here advance the argument that to deny them a preliminary hearing in contradistinction to defendants whose prosecutions began with complaints is an invidious discrimination in violation of the equal protection clause of the
In the overwhelming majority of cases a criminal action commences with the appropriate prosecuting official‘s filing of a complaint.19 Preliminary arraignment and a preliminary hearing20 follow. This procedure, which can certainly be viewed as the norm, admitted of exceptions in three general situations.
The first is where the district attorney or attorney general submits a bill to a grand jury without previous binding over or commitment of the accused. Such an exercise of official authority would be justified, for example, when the accused has fled or is about to flee the jurisdiction, and great haste is necessary. “The procedure in such cases, however, is under supervision of the court, and if the process and powеr is misapplied the court will vindicate itself in restraining its exercise.” Commonwealth v. Green, 126 Pa. 531, 537, 17 Atl. 878, 879 (1889).
The second exception is when an indicting grand jury makes a presentment based on personal knowledge of the jurors without any bill of indictment having been laid before them. See McNair‘s Petition, supra, at 60, 187 Atl. at 504; Commonwealth v. Green, supra, at 537-38, 17 Atl. at 879. See generally 4 Wharton, Criminal Law and Procedure §1710 (1957).
We are here concerned with the final exception--a prosecutor‘s submission of an investigating grand jury presentment to an indicting grand jury with leave of court. Appellees contend the recent decision of the United States Supreme Court in Coleman v. Alabama, supra, while not requiring a preliminary hearing as a matter of constitutional law, holds that if a preliminary hearing is granted it becomes a critical stage in the proceedings, and the accused is accordingly entitled to the assistance of counsel. They further assert that because Coleman emphasizes the critical nature of the preliminary hearing, a procedure whereby some criminal prosecutions are initiated by hearing and others by investigating grand jury presentments raises a serious question of equal protection, for in effect two types of defendants have been created: those entitled to a preliminary hearing and those not entitled to such a proceeding. Appellees urge that such a classification is unreasonable and arbitrary because it permits a district attorney to create a classification at will, uninhibited by guidelines or restrictions.
We do not agree that these alternative modes of instituting criminal proceedings as they exist in this Commonwealth constitute an unreasonable classification. This Court has elsewhere summarized the origins of a grand jury‘s investigative powers, which have been
One of the earliest and most comprehensive discussions of a grand jury was Lloyd & Carpenter‘s Case, 5 Pa. L.J. 55, 3 Clark 188 (Ct. of Qtr. Sess. of Phila. 1845), cited with approval by this Court on many occasions.23 After commenting on the other two extraordinary modes of procedure,24 Judge KING there observed that an investigating grand jury is justified where criminal courts direct the investigation of: “... matters of general public import, which, from their nature and operation in the entire community, justify such intervention. The action of the courts on such occasions, rather bear on things than persons; the object being the suppression of general and public evils, affecting in their influence and operation communities rather than individuals and therefore, more properly the subject of general than special complaint. Such as great riots that shake the social fabric, carrying terror and dismay among the citizens; general public nuisances affecting the public health and comfort; multiplied and flagrant vices tending to debauch and corrupt the publiс morals, and the like. In such cases the courts may properly, in aid of inquiries directed by them, summon, swear, and send before the grand jury, such witnesses as they may deem necessary to a full investigation of the evils intimated, in order to enable the grand jury to present the offence and the offenders. But this course is never adopted in case of ordinary crimes, charged against
We have stressed with regard to a grand jury‘s investigative function that “...... this power, which is a most delicаte one, is never exercised unless under urgent necessity or... [where] the public would suffer from delays incident to ordinary forms of law.” McNair‘s Petition, supra at 60, 187 Atl. at 504 (brackets in original) (citations omitted). Such concerns were the prime motivation underlying the historic requirement in Pennsylvania that a court be placed in charge of a special investigating grand jury to regulate the scope of inquiry, by, for example, administering the oath to the witnesses and receiving objections.25
A court will first scrutinize the prosecuting official‘s petition for summoning the jury. See, e.g., In re Grand Jury Investigation of Registration Commission, etc., 22 Pa. D. & C. 2d 285 (1960); District Attorney‘s Petition, 50 Pa. C.C. 347 (1921); In re Alleged Extortion Cases, 29 Pa. C.C. 538 (1904).
The court‘s decision to proceed with, as well as its overseeing of the investigation is subject to the review of this Court through the recognized procedure of applying for a writ of prohibition to prevent an alleged im-
Moreover, we note that a writ of prohibition is not the only method by which our Court will review the propriety of the convening and functioning of an investigating grand jury. A convicted defendant who believes he has been aggrieved by any illegal actions of the investigating grand jury could obtain appropriate appellate review in his appeal from judgment of sentence.
In McNair‘s Petition we set forth some of the more crucial requirements surrounding the approval of a grand jury investigation: “A grand jury investigation, because of the gravity of the undertaking, must have a definite purpose to discover criminal acts which seriously affect or injure the public generally, which effect, if permitted to continue, would endanger public safety or health, demoralize the personal security of members of the public, or permit systematic criminal depredations by public officers. ... Such matters require immediate attention so that these evils may be suppressed. The criminal acts subject to investigation must be such that the ordinary process of the law is inadequate to cope with or discover them. ...”
“Where it is made to appear to a court, as above indicated, that there exists a system of crime among public officers, or criminal conspiracies respecting public business, safety or health, or other criminal acts affecting these functions of a widespread nature, jeopardizing or demoralizing public security or health, the judge may properly order such investigation.
“Investigations for purely speculative purposes are odious and oppressive and should not be tolerated by law. ... The grand jury must know what crimes it is to investigate. The court of quarter sessions has no power to set such an inquiry in motion unless it has reasonable cause to believe that an investigation will disclose some criminal misconduct which is within its jurisdiction to punish.
“The grand jury must not be set upon fruitless searches, founded upon mere rumor, suspicion or conjecture. These are proper matters for police investigation. Before reflection is cast upon the integrity of public officials a preliminary investigation by the forces of law charged with thе discovery of crime should be made to determine whether there is any real foundation. Such jury investigations involve great expense to
Having reviewed in depth the nature and characteristics of an investigating grand jury, we believe it serves identifiable and legitimate state interests. We cannot agree that the omission of a preliminary hearing for a defendant indicted pursuant to a presentment, when the extraordinary and limited circumstances26 justifying the impaneling of an investigating grand jury existed, in any way prejudices him, or denies him a greater degree of protection than is available to a defendant in a criminal proceeding instituted by complaint and prеliminary hearing. In comparing the safeguards afforded by these alternative procedures, we must turn again to the Rules of Criminal Procedure.
We deal with the right to counsel in Section III of this opinion and accordingly defer a discussion of that subject.
As to recording the proceedings, a record was made of the special grand jury investigation here involved. Each witness is entitled to his own testimony. Furthermore, should any of the other evidence before the investigating grand jury be material to the impeachment of Commonwealth witnesses at trial, we will not presuppose that the trial court would not adequately protect any rights a defendant might have to utilize such evidence.28
Likewise, the other preliminary hearing advantages allegedly denied defendants are illusory. In Commonwealth v. Dessus, 423 Pa. 177, 181, 224 A. 2d 188, 191 (1966), we held that an indictment based solely on hearsay testimony was valid. That being the case, an accused‘s opportunity to cross-examine at a preliminary hearing is severely restricted. We believe that the policy considerations justifying the impaneling of a special investigating grand jury when ordinary law enforcement procedures are no longer capable of dealing with the problem as outlined above justifies this “curtailment“, if indeed it is one, of an accused‘s cross-examination opportunity. Cf. California v. Green, 399 U.S. 149, 90 S. Ct. 1930 (1970).
Additionally, in view of the limited quantum of evidence necessary to bind a defendant over, and a defendant‘s opportunity to testify on his own behalf, we believe any disclosure benefits available to a defendant in a preliminary hearing through the availability of in
It has been urged by various appellees that the proper procedure required by both the criminal rules and considerations of equal protection is that subsequent to the investigating grand jury presentment, a complaint should be issued and preliminary hearing held before the matter is submitted to an indicting grand jury. To accede to appellee‘s request would merely be subjecting the administration of criminal justice to another superfluous layer of delay and imposing an unwise burden upon our judicial process as well as upon the prоsecutor and counsel for the defense with only a slight expectation for what at most would be a highly speculative de minimis advantage to an accused.
We reiterate that an investigating grand jury is an arm of the court, in this Commonwealth is judicially supervised from its inception contrary to the practice in most jurisdictions and is strictly regulated in the scope of its inquiry. The rights of an accused will certainly be as well protected before an investigating grand jury as during a preliminary hearing. Both are conducted before persons not necessarily schooled in the law. At least in the investigating grand jury context, the procedure is subject to supervision by a court.
Finally, we do not view Coleman v. Alabama, supra, as compelling a different result. Coleman did not decide
In sum, an investigating grand jury presentment is a constitutionally permissible and reasonable alternative to a preliminary hearing. We turn now to a witness‘s right to the assistance of counsel and privilege against self incrimination during his appearance before an investigating grand jury.
III. RIGHT TO COUNSEL AND RIGHT AGAINST SELF INCRIMINATION BEFORE AN INVESTIGATING GRAND JURY
When the five individual appellees were subpoenaed to testify before the April, 1969, investigating grand jury, each requested the court (SLOANE, J.) that he be permitted to have counsel with him in the grand jury room, or in the alternative that he be allowed to consult with counsel at will outside the door. These motions were properly refused. The court then instructed defendants as to their duties as witnesses. The relevant portions of these instructions are set forth in the margin.29
Neither Escobedo nor Miranda were even remotely concerned with right to counsel before an investigating grand jury. The interpretation urged by appellees that counsel be accessible at all times during a witness‘s appearance is an unwarranted extension of the teaching of those decisions. As to Ianniello, we believe it supports the result we reach today, as appears more fully below.
In In re Groban‘s Petition, 352 U.S. 330, 77 S. Ct. 510 (1957), the last pronouncement by the Supreme Court directly on this issue, it was held that “... [a] witness before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel. . . When . . . charges are made in a criminal proceeding, he then may demand the presence of his counsel for his defense.” Id. at 333, 77 S. Ct. at 513.
It would be a serious interruption and impair continuity in a grand jury investigation if witnesses were permitted to leave the room and consult with counsel prior to responding to every question.
However, in In re Groban‘s Petition, supra, the Supreme Court also stressed that a witness before a grand jury is always protected by the privilege against self incrimination, “. . . a privilege available in investigations as well as in prosecutions.” Id. at 333, 77 S. Ct. at 513 (emphasis added). See generally, Annot., Self Incrimination Before a Grand Jury, 38 A.L.R. 2d 229 (1954).
Such a warning gives full recognition to the delicate position of a witness before an investigating grand jury.30 He has been summoned to testify, and he is subject to contempt proceedings should he refuse to testify without justification.31 The question of when a witness has “reasonable cause to apprehend danger” and hence can exercise his right against self incrimination is not always clear.32 As was stated in Jones v. United States, 342 F. 2d 863 (D.C. Cir. 1964): “If . . . [a witness] answers incriminating questions he may make certain, as Short did, that he will be indicted. And testimony before the grand jury may be used, though Short‘s was not, to impeach his testimony at trial. If he refuses to testify at all, or to answer some questions on the ground that answers might incriminate him, the grand jury may draw conclusions. If he
Determining what is an incriminating statement is not always clear to a layman. We thus conclude that a subpoenaed witness who has given testimony before an investigating grand jury without the above warning has been denied his right against self incrimination.
As noted above, appellees urge that the New York Court of Appeals’ decision in People v. Ianniello, supra, is persuasive authority for the proposition that a witness before an investigating grand jury be allowed to consult with his attorney outside the hearing room after each question. Having examined that decision we find, to the contrary, that it supports the result we reach today.
The holding of that decision was that Ianniello in fact had not been deprived of any right to consult with his lawyer. See 21 N.Y. 2d at 421, 235 N.E. 2d at 441. Judge BREITEL then observed that “[c]ourts have a particular responsibility to prevent unfairness in Grand Jury proceedings, for the Grand Jury is an ‘arm of the Court‘“. Id. at 424, 288 N.Y.S. 2d at 1468, 235 N.E. 2d at 443 (emphasis added). The court further pertinently noted that if a witness is told he cannot see his lawyer, “. . . he does not have license to commit perjury or contempt. Rather, he must persist in his refusal to answer, thus forcing the prosecutor to take the matter into open court for a ruling. By requiring the mаtter to be taken to the presiding Justice, the proceeding is expedited and the danger of stalling tactics reduced. The judge can rule on
We reiterate our belief that to allow a witness to leave the grand jury room and consult with his attorney at the door prior to responding to every question would cause undue delay and all but terminate the institution of the investigating grand jury. Such a procedure, which would not be subject to any court supervision, would be an invitation to evasive and stalling tactics. The standards we today institute are manifestly distinguishable in thаt they require a court to scrutinize the witness‘s refusal to answer. If the witness persists in interrupting the grand jury proceedings in palpable bad faith and without presenting any colorable claim of testimonial privilege, the court can bring a halt to such tactics. This essential element of judicial supervision would not be available were a witness permitted at will to consult with his attorney for an indefinite period of time after every question, no matter how unmeritorious his objection.
Consequently, we must now consider the proper remedy.34
Even though a witness was not given the proper warning, we would not disturb a later indictment unless the presentment and subsequent indictment were based, in part, on the self-incriminatory testimony of the defendant.
In the present case, appellee Blatstein received the proper warning.35 As to appellee Steinberg, although the record does not indicate whether he was advised he could come before the court during his testimony, our review of the second presentment discloses that it is not based on any tеstimony that appellee Steinberg might have given,36 but rather on the records of the Philadelphia Housing Authority, produced under subpoena, evidence submitted by the district attorney‘s office, and the testimony of Hope B. Winborne, Chief of Construction of the Department of Licenses. Consequently, neither of these appellees is entitled to relief.
However, appellees Thomas Taylor, Paul J. Marzullo and James C. McCloskey were all given an insufficient warning, and their indictments were based on the fourth presentment of the investigating grand jury. Our examination of that presentment discloses that the recommendations concerning each of these appellees were clearly based in part on their incriminating testimony before the investigating grand jury. We therefore conclude that their indictments must be quashed and their testimony suppressed.
The Commonwealth refers us to this Court‘s decision in Commonwealth v. Dessus, supra, and argues that even if some irregularity existed in the procurement of the indictments, to quash is not the proper remedy.
The principle of Kilgallen is still valid and dictates our result today on this issue. Defendants McCloskey, Taylor and Marzullo were on notice that the investigating grand jury was inquiring into the stadium project. They were judicially compelled to testify without sufficient warning or protection concerning their right against self-incrimination. The resulting presentment and indictments were based in part on this constitutionally impermissible testimony and hence must be quashed.
Accordingly, for the reasons set forth above: the orders of the Superior Court affirming the orders of the Philadelphia Court of Common Pleas of July 27, 1970, quashing the indictments against Harry Blatstein, Frank M. Steinberg, McCormick-Taylor Associates, McCloskey & Company, Inc., and H. H. Robertson Company are reversed and the records remanded for further proceedings; the orders of the Superior Court affirming the orders of the Philadelphia Court of Common Pleas of July 27, 1970, quashing indictments and suppressing evidence against James C. McCloskey, Paul J. Marzullo and Thomas Taylor are affirmed.
Mr. Justice COHEN took no part in the decision of this case.
CONCURRING AND DISSENTING OPINION BY MR. JUSTICE EAGEN:
I agree with the conclusion of the majority that the denial of a preliminary hearing to the individuals and corporations indicted in this case violated neither the Pennsylvania Rules of Criminal Procedure nor constitutional due process. However, I strongly disagree with the majority‘s ruling that an individual who is compelled to appear and testify before a grand jury may constitutionally be denied the opportunity of consulting with his legal counsel outside the grand jury room during his testimony. I agree completely with Judge SPAETH in the court of original jurisdiction that such a denial violates the individual‘s rights guaranteed by the
A person accused of crime must be afforded the assistance of counsel during every “critical stage” in the prosecution process. Admittedly a witness before a grand jury is not an “accused” in a technical sense. However, the law should consider the realities of the
Additionally, a witness before a grand jury need not answer any incriminating questions. Resolution of the scope of the privilege against self incrimination and the applicability of the waiver doctrine on a question-by-question basis frequently presents a difficult problem. I cannot see how an untrained layman can be expected to possibly discern whether or not an answer to a particular question will subject him to the danger of incrimination. To deny him the opportunity of adequate consultation with his counsel is to render his right under the
Aside from every other consideration, fundamental fairness, which is the cornerstone of due process, mandates that the opportunity of such assistance be afforded. Thе secret proceeding before a grand jury is pregnant with the possibility of coercion, intimidation and overreaching. One commentator pointedly described the situation thusly: “A potential defendant who is brought before the Grand Jury without an attorney at his side is almost helpless. He is faced with a barrage of questions, often improper in the normal judicial setting, thrown at him by a group of reasonably intelligent citizens excited at the prospect of playing both lawyer and detective. This torrent of interrogation is, of course, directed by a skilled prosecutor capable of utilizing the Grand Jury as the tool to obtain incriminating evidence from the mouth of a nervous witness. The upset and
Finally, an inconsistency in the reasoning of the majority opinion must be noted. On the one hand, the opinion states that if a witness were permitted to leave the grand jury room to consult with counsel this “would be a serious interruption and impair continuity in a grand jury investigation.” But in the next breath the opinion states that if a witness is confronted with a question which tends toward incrimination he may “come before the court and obtain a ruling as to whether or not he should answer the question.” Apparently, in the minds of the majority the last mentioned procedure would not constitute a “serious interruption” of the grand jury investigation.
In this connection may I also say that, while I agree that courts and their agencies should persistently strive towards the objective of increased efficiency, such efficiency should always be within legal limits and “should never be made the end goal of a system dealing with life and liberty.”
Mr. Justice JONES joins in this opinion.
Notes
“1. Motions to suppress testimony
Filed by:
Paul Marzullo
James McCloskey
Thomas Taylor
“2. Motion to quash indictments as based on unconstitutionally obtained testimony
Filed by:
James McCloskey
“3. Motions to quash indictments as defective for denial of a preliminary hearing
Filed by:
Harry Blatstein
Paul Marzullo
McCloskey & Company, Inc.
James McCloskey
McCormick-Taylor Associates
H. H. Robertson Company
Thomas Taylor
“4. Motions for change of venue (withdrawn during argument)
Filed by:
Paul Marzullo
McCormick-Taylor Associates
Thomas Taylor
“5. Motions for continuance until the Investigating Grand Jury is discharged
Filed by:
Paul Marzullo
McCloskey & Company, Inc.
James McCloskey
H. H. Robertson Company
Thomas Taylor
“6. Motions for continuance until the completion of the stadium
Filed by:
Paul Marzullo
H. H. Robertson Company
Thomas Taylor “7. Motions for discovery and for production of scientific reports
Filed by:
McCloskey & Company, Inc.
James McCloskey
McCormick-Taylor Associates
“8. Motions for bill of particulars
Filed by:
Harry Blatstein
Paul Marzullo
McCloskey & Company, Inc.
James McCloskey
Thomas Taylor
“9. Motion for consolidation of all bills
Filed by:
Commonwealth of Pennsylvania
“10. Motions for severance
Filed by:
Paul Marzullo
McCloskey & Company, Inc.
James McCloskey
H. H. Robertson Company
Thomas Taylor
“11. Motions in re order of proof
Filed by:
McCloskey & Company, Inc.
James McCloskey
H. H. Robertson Company
“12. Motions to quash superseded indictments
Filed by:
McCloskey & Company, Inc.
James McCloskey
McCormick-Taylor Associates
Thomas Taylor
“13. Motions for inspection of grand jury notes of testimony
Filed by:
Harry Blatstein
Paul Marzullo
McCloskey & Company, Inc.
James McCloskey
H. H. Robertson Company
Thomas Taylor “14. Application for a blue ribbon jury
Filed by:
Thomas Taylor”
Although the origins of the grand jury continue to be obscure, compare McNair‘s Petition, supra (Norman or Anglo-Saxon) with Whyte, Is the Grand Jury Necessary, 45 Va. L. Rev. 461, 462-63 (1959) (Greco-Roman or Scandinavian), there is general agreement that the institution first became formalized in England in 1162 by the Assize of Clarendon. See generally, Edwards, The Grand Jury 1-44 (1906); Plucknett, A Concise History of the Common Law, 16-19, 86-88, 102-21 (3d ed. 1940); 1 Pollock & Maitland, The History of the English Law 136-53, 598-662 (2d ed. 1903); Stephen, A History of the Criminal Law of England 184-86, 250-58 (1883).
The assize was a body of laymen who were to report persons accused of robbery and other crimes to the royal sheriff. Their deliberations were open, and their purpose was to further the interest of the crown.
Then, in the seventeenth century, the grand jury became a protector of the individual against the crown. The single most significant manifestation of this change was the Earl of Shaftesbury‘s Trial, 8 How. St. Tr. 759 (1681) where the jurors requested and were permitted to question the witnesses in private. They then refused to indict. See 8 Wigmore on Evidence, §2360 (1961); see generally Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 456-58 (1965). The function of protecting the individual from indiscriminate prosecution remains the foremost duty of the grand jury today.
The origins of the grand jury‘s investigative powers are equally uncertain. See Dession and Cohen, The Inquisitorial Functions of Grand Juries, 41 Yalе L.J. 687 (1932); Segal, Spivack and Costilo, Obtaining a Grand Jury Investigation in Pennsylvania, 35 Temp. L.Q. 73, 75 (1961). Yet, its inquisitorial powers were clearly established in this Commonwealth by 1791. See McNair‘s Petition, supra at 57, 187 Atl. at 503.
The record in this appeal reveals the following:
To Mr. McCloskey:
“THE COURT: Now, here, too, gentlemen, you are represented by very able counsel, Mr. Gittis. You have a right, each of you—
*
“I have said you have able counsel. You may consult with him or his associate before you go into the Grand Jury room, and after you come out, but not while you are there.”
To Mr. Marzullo:
“THE COURT: Mr. Marzullo, I will tell you what, most likely, you just heard when I said it to Mr. Breen. And that is, you certainly have a right to have a lawyer and you have one, and a good one. You have a right to cоnsult with him before you go into the Grand Jury room, and have questions presented to you and answers made, as indicated by the oath I have just given you. You may tell your lawyer—and nobody else—on the basis of the great tradition of the lawyer-client relationship—what went on in the Grand Jury room—but no one else. And that includes your wife.
“You may not have a lawyer with you while you are in the Grand Jury room.”
To Mr. Taylor:
“THE COURT: * * *
“As you may have heard, each one of you has the right to consult a lawyer, counsel, before you go into the Grand Jury room, and to confide in that same counsel after you come out. You may not confide in anyone else excepting your lawyer—not even your wife. I say ‘wife’ because generally she is the most intimate person that a man knows—when he is married. Otherwise, everything is secret, under the law, under the Grand Jury proceeding.”
To Mr. Blatstein:
“THE COURT: * * *
“As you know, Mr. Blatstein, you may consult with your counsel, Mr. Richter, before you go into the Grand Jury room. And you may confide in Mr. Richter when you come out of the Grand Jury room. While you are in the Grand Jury room, you are in there alone. If there is any problem or question, it will be brought before the court.” (Emphasis added.)
Mr. Steinberg was administered the oath without any cautionary instructions.