explaining “[wjhfen a substantial percentage of the total membership of the jury is absent from a significant portion of the presentation of evidence, it can no longer be said with confidence that the deliberations were not affected”
How later courts described this case
- explaining “[wjhfen a substantial percentage of the total membership of the jury is absent from a significant portion of the presentation of evidence, it can no longer be said with confidence that the deliberations were not affected”
- ROBERTS, J., and POMEROY, J., each filed a dissenting opinion; O’BRIEN, J., joined both dissenting opinions
- subsequent proceedings do not cure irregularities or defects in functioning of grand jury
Written by the judges who cited it.
The opinion
POMEROY, Justice,
dissenting.
I believe the Superior Court was in error in ordering that the indictment of this appellee be quashed. I therefore *295 dissent from the order of affirmance and would reinstate the order of the court of common pleas which found the indictment valid and refused to quash it.
I am not persuaded that any error occurred in the substitution of six new members of the investigating grand jury, who were then fully briefed as to what had transpired before their selection. Even if their appointment was in error, however, it would seem clearly harmless for at least two reasons.
First, there was in existence at all relevant times a full legal quorum of the investigating grand jury. Second, the appellee’s indictment of crime was not the act of the investigating grand jury but of the indicting grand jury, which had before it not only the presentment of the investigating jury but other evidence as well. The majority opinion seems to overlook the basic difference in the roles of these two bodies, and confuses the issue by citing authority some of which is relevant only to the indicting grand jury.
I would reverse and allow appellee’s guilt or innocence to be determined by the final arbiter in a criminal case, the petit jury. Its role in the adjudicatory process has been totally aborted by today’s decision.
O’BRIEN, J., joins in this dissenting opinion.