Commonwealth v. Favulli

Spiegel, J.

(dissenting) Mr. Justice Kirk and I cannot agree with the majority opinion. The prejudicial effect of the presence before the grand jury of a number of persons *117 in addition to the Attorney General transcends in importance the other issues in this case. We feel so strongly about the sanctity and inviolability of proceedings before a grand jury that we confine our dissent to that sole issue. Our thesis is that there was a violation of art. 12 of the Declaration of Eights of the Constitution of the Commonwealth. We base our conclusion on the following testimony given to the trial judge by persons associated with the prosecution.

Mr. Marshall Simonds testified that he was employed by the crime commission on July 29, 1963, “to render legal services” and was still so employed. On January 27,1964, he was sworn in as a special assistant attorney general. He was present in the grand jury room on six days 1 during the period in which evidence relevant to these indictments was being presented. At no time on those days did he present any evidence to the grand jury.

In his capacity as general counsel for the crime commission he never interviewed any witnesses in connection with the subject matter of these indictments nor did he do any investigation of either the facts or the law, nor did he direct the activities of attorneys or investigators of the crime commission. He did not attend any meetings of the crime commission “wherein any . . . information was elicited concerning the subject matter of the indictments.” At no time was he compensated by the crime commission “in connection with the subject matter of these indictments.”

His personal records showed that he allocated time to the Attorney General on the days he was in the grand jury room, 2 but at no time did he receive any compensation from the Attorney General.

The total extent of Mr. Simonds’ work, either for the Attorney General or the crime commission, except for his presence in the grand jury room in which he did not assist *118 in any way with the presentation of evidence, was summarized by him as follows: “My recollection is that there were probably a half-dozen, maybe more, maybe eight or ten days, occasions on different days between May and October in which I engaged in conversation with one or more members of the staff of the Crime Commission relative to the subject matter that ultimately came down as the indictment now before The Court. And, also, on one or two days in which I engaged in a conversation with Mr. Willcox who was not then on the staff of the Crime Commission relative to these matters, and, very probably, at least one or two days when I made some form of summary report to Mr. Gardner concerning the job allocations of the staff of the Commission; and that would have included a reference to the fact that certain members were working on this investigation that resulted in these indictment [s]. That time that I spent, which I considered to be a part of my supervisory duties as general counsel over the staff of the Commission of that nature, I feel certain I charged to the Crime Commission and was paid for it. Now, I conferred with many of these people on many different subjects. I feel certain the subject matter of these indictments was one of those subjects, but I have no records that would permit me to separate it. My total estimate of the time involved would be not more than over five or six hours involved in all during the four or five-month period.”

He also testified that Mr. Harold M. Willcox was presenting the evidence to the grand jury and that Messrs. Robert A. Greeley and Calvin Bartlett were also present in the grand jury room on several of the occasions on which he was present.

Mr. Harold M. Willcox testified that he began working for the crime commission about “the beginning of February, 1963.” On May 9, 1963, he was appointed a special assistant attorney general without compensation. On May 13, 1964, his contract with the crime commission was terminated and the following day he became a special assistant attorney general with compensation.

*119 Until May 13, 1964, he was compensated by the crime commission for work he did relating to the subject matter of these indictments, including some preparations he made for his presentations to the grand jury, 3 but not for the time he actually spent before the grand jury. Of the witnesses he interrogated before the grand jury, about twenty-five per cent he “talked to ahead of time and 75 per cent . . . were examined, as far as I was concerned, cold.”

Mr. Greeley testified that he was employed by the crime commission as an attorney, starting November 4, 1963, to the present time. On April 23,1964, he was appointed as a special assistant attorney-general. He was never compensated by the Attorney General’s office. He participated in crime commission hearings relating to the indictments. In his capacity as an attorney for the crime commission he interviewed witnesses who were later presented to the grand jury while he was in the grand jury room, and some of whom he himself presented to the grand jury.

He was present in the grand jury room on numerous occasions. 4 He was never compensated by anyone for the time he spent in the grand jury room. On a “substantial number of those days” he was compensated by the crime commission for work outside the grand jury room which related to his presentation to the grand jury. He did a substantial amount of investigating for the crime commission relative to these indictments, during which he had the assistance of the crime commission staff.

On every day that he was present in the grand jury room, except one afternoon, Mr. Willcox was also present. On “a few days” there were three assistant attorneys general present and on “parts of some days” there were four present “for a short time.” On October 13, 1964, there were six “Attorneys General” present in the grand jury room simultaneously, 5 while the grand jury were in session. *120 When asked whether at “ [a]ny time you saw anybody besides yourself and Mr. Willcox in the Grand Jury room, were these other men interrogating witnesses and presenting evidence, documentary or otherwise?” He answered, “No.” 6 But they were ‘‘sitting at the same bench that whoever was interrogating the witness was at.” On October 13, when six “Attorneys General” were present, Mr. Willcox was the only one interrogating the witness. When asked, “What were the other five doing in there?” he replied, “Sitting and listening, as far as I could observe.” Q. “ And then five of them don’t open their mouth at all?” A. “Only to whisper to someone.” Q. “I mean opening their mouth in questioning?” A. “No.” Q. “Just sitting there, is that right?” The judge. “Whispering.” Mb. Skihhbb. “From time to time.” Q. “Now, did that last for some period of time, an hour or two hours?” A. “A good hour, anyway.”

1. We are here concerned with the “ ‘right of individual citizens to be secure from an open and public accusation of crime . . . before a probable cause is established by the presentment and indictment of a grand jury . . . [which] is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’ The above quotation is a declaration . . . that it shall no longer be possible for one or more judges to compel or direct the examination of a witness to be held in open court before the grand jury, should the judges seek to overawe the latter or the witness by the presence of other witnesses or bystanders, or should he or they be of opinion the prosecution is too indulgently or too vindictively conducted.” Commonwealth v. Harris, 231 Mass. 584, 586 . The principle of the Harris case, prohibiting the appearance before the grand jury of more persons than are absolutely essential to the orderly functioning of the grand jury has been reaffirmed in Opinion of the Jus *121 tices, 232 Mass. 601 , and Lebowitch, petitioner, 235 Mass. 357 . The purpose of this rule is clear: to prevent the possibility that either the members of the grand jury or the witnesses testifying before them will be overawed by the majesty of the State, whatever form it may take.

The appearance of other persons before the grand jury is authorized for specific purposes. The presence of the district attorney, or in an appropriate case the Attorney General, is a concession to the practical necessity of an orderly presentation of evidence which comes to the attention of the public prosecutors, and warrants consideration by the grand jury. An assistant attorney general is authorized to appear in place of the Attorney General for the obvious reason that the Attorney General cannot personally prosecute all of the cases which come to his office. The joint presence of both the Attorney General and his assistant is permitted so as not to deprive the Attorney General of his responsibility to supervise the presentation of cases to the grand jury. The fact that both may be present is not grounded on any assumption that a case may be so complex that two persons are required to present it. It does not follow that any number of assistants may be present merely because the Attorney General and “his assistant” (see Commonwealth v. Harris, supra, p. 587 ) are permitted to be in the grand jury room.

Other persons have been permitted to be present on the grounds of absolute necessity. For example, by statutory authority (now G. L. c. 221, § 86), a stenographer, Commonwealth v. Harris, supra; an interpreter, Opinion of the Justices, supra, p. 604; a guard for a “prisoner of desperate character brought on habeas corpus to testify before the grand jury” or an “indispensable attendant for a sick or disabled witness,” Lebowitch, petitioner, supra, p. 362. As this court stated in the Lebowitch case, at page 362, “One purpose of the grand jury in making its investigations and accusations is to ascertain truth. Where that end in its essence cannot be achieved without the presence of more than one person, the rule that only one person may *122 be present is not applicable. . . . Such instances, however, rest upon inherent necessity and not upon convenience. It is only when some imperative compulsion requires it to prevent a miscarriage of justice or an utter failure of the investigation imposed by law upon the grand jury that more than one stranger at a time may be before the grand jury” (emphasis supplied).

2. The presence of five assistant attorneys general in the grand jury room violated the rule prohibiting the appearance before the grand jury of more persons than are absolutely essential to the orderly functioning of the grand jury.

The majority say, first, that the presence of the extra assistants was allowed because they were “duly appointed prosecutors.” We do not believe that the history or purpose of the exception to the rule that only one person at a time may appear before the grand jury supports the conclusion that any number of persons may appear so long as they are “duly appointed prosecutors.” If the majority are focusing on the word “stranger” in the Lebowitch case, it should be pointed out that anyone not a member of the grand jury is a “stranger” and does not cease to be so by being “duly appointed” as an assistant attorney general. The Commonwealth should not be permitted to flood the grand jury room with prosecutors any more than it should be permitted to flood the grand jury room with police officers. We therefore disagree with the majority when they say that “it was not numbers that the court referred to” in the Harris case.

Applying the rule of “inherent necessity,” there are no facts in this case which show that the presence of five assistant attorneys general was “necessary” by any legitimate definition of the term. However convenient it may have been to have five assistant attorneys general present during the interrogation of the witness, it is obvious that their presence was not an “inherent necessity” to “ascertain truth. ’ ’ Indeed, contrary to the majority’s contention, there is nothing in this record to show even that their joint *123 presence in any way contributed to an “ effective presentation of the evidence.” That is a bare assumption of the majority based on the inability of the defendants to prove otherwise. The only conclusion we can reach on the evidence before us is that the nonparticipating prosecutors were no more than spectators or bystanders.

Even if a case of sufficient complexity would warrant the presence of more than the prosecuting attorney and a single assistant, this case falls far short of that requirement. The indictments were for conspiracy to request and accept a bribe and for requesting and accepting a bribe. This was not a complicated case involving entangled accounts or business records, correspondence and the like.

No matter how much we may try to rationalize the presence of six prosecutors in the grand jury room we have been unable to find a plausible reason for their presence. Even a new and completely inexperienced Attorney General in what obviously was a comparatively simple presentation of evidence would not require the presence of a gallery of assistants. No attorney is permitted to represent a potential defendant and there is no cross-examination. The prosecutor may ask a witness practically any question even though it be irrelevant, and may introduce documents at will. There was no need for six prosecutors to be present in the grand jury room.

The presence of these extra assistants was precisely the type of situation which the long established law of this Commonwealth was designed to prevent. The procedure sanctioned by the majority is an invitation to a prosecutor to appoint any member of the bar, whether he be a police officer, investigator, or nonpracticing attorney, as an assistant, thereupon enabling him to become a spectator in the grand jury room.

3. Perhaps the most startling aspect of the majority opinion is its allocation of the burden of proof. The majority say that six prosecutors was a “reasonable number” and that the court would “assume, as did the judge below, that, unless the facts require another conclusion, the prose *124 cutor did not have assistants present for any other purpose than the effective presentation of the evidence. This assumption being applicable, the burden is not on the Commonwealth to show a necessity, or indeed the reason, for the presence of the prosecutors” (emphasis supplied).

The assumption has always been to the contrary. The majority reveal not only a surprisingly sanguine attitude toward the motives of the prosecutor, but also ignore the history and purpose of a rule prohibiting opportunities for influencing grand jury proceedings. We point out that the actual purposes for which the prosecutor has assistants present are irrelevant. Bather, the focus has always been upon the effect which their presence might have on the grand jury or on a witness testifying before the grand jury. It has always been assumed that the presence of extra persons will have a deleterious effect on the grand jury, regardless of the motives which the Commonwealth may claim to have had in allowing such persons to be present in the grand jury room. The Lebowitch case makes clear that this court will not assume that the persons which the Commonwealth introduces into the room are there to serve some “inherent necessity” in the ascertainment of truth. Mere convenience is not enough. Even if we should conclude that it was helpful to the prosecution to have five assistants present for an “effective presentation of the evidence” the danger of overawing the grand jury requires a strict rule against such an extravaganza of governmental efficiency.

A defendant in this Commonwealth need not prove actual prejudice if his rights under the Declaration of Bights have been violated by irregular proceedings before the grand jury. “The contention of the Commonwealth that the burden is upon the defendant to show he was injured by action of the grand jury is unsound, because in the nature of things it would be impossible to prove the fact, if true, before the jury trial and because the wrong complained of is the violation of a substantial right guaranteed by the Declaration of Bights, and is not a mere failure of the grand jury to observe technical requirements and formalities.” *125 Commonwealth v. Harris, 231 Mass. 584, 587 . Other jurisdictions also recognize the danger of requiring the defendant to prove prejudice. “There must not only be no improper influence or suggestion in the grand jury room, but . . . there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set the bounds to the abuse to follow such a breach of the safeguards which surround the grand jury?” (emphasis supplied). United States v. Edgerton, 80 Fed. 374 (D. Mont.). In People v. Minet, 296 N. Y. 315 , the court, in holding that the defendant was not required to show actual prejudice by the presence of unauthorized persons in the grand jury room, stated: “We think the practice offers too great a possibility for the exercise of undue influence to be condoned. Approval of it would open the door to grave abuses and jeopardize safeguards . . . [surrounding] the institution of the grand jury” (emphasis supplied).

4. For reasons similar to those set out in point 3 of this dissent, we are not persuaded by the discussion in the majority opinion wherein it was concluded that because the prosecutors “were requested to leave the room and they all did so for two separate periods of time . . . warrants the inference that the grand jurors, at least as to some matter or matters, made decisions in the absence of the prosecutors” before returning the indictments. The majority’s reliance on this evidence indicates that they have overlooked the reason for a rule prohibiting opportunities for overawing a grand jury. It is extremely difficult to prove whether a grand jury or just how many members of a grand jury were influenced by an intrusion of an array of assistant prosecutors. 7 If we adopt the inference of the majority we must automatically conclude that if a grand jury request the prosecutors to leave the grand jury room there is no *126 prejudicial error in permitting a prosecutor to have as many assistants as he may want in a grand jury room at any time. We point out that an equally permissible and more probable inference to be drawn from the grand jury’s request is that they had found the presence of the prosecutors to be oppressive, offensive and an interference with the performance of their duties as jurors.

In essence the majority’s position is that “ [t]he right of individual citizens to be secure from an open and public accusation of crime” is adequately preserved if the grand jury request the prosecutors to leave the room. We regard it as unthinkable that the inviolability of such a fundamental right, which has its roots in the Magna Carta and the Declaration of Bights (Shaw, C.J., in Jones v. Robbins, 8 Gray, 329 , 342-344), should be left to the varying judgments of grand juries. Bather, the established law requires that the number of persons be confined to those whose presence is determined to be an ‘ ‘ inherent necessity. ’ ’

In the present case the majority have not been able to point out that the presence of the several assistant attorneys general was required by “inherent necessity.” In fact, they have ignored the rule that requires a showing of “inherent necessity” as a justification for the presence of persons other than the witness. They have not only substituted for the rule of necessity a rule of “convenience,” which was specifically rejected in Lebowitch, petitioner, 235 Mass. 357 , but they have done more. They have placed upon the defendants the burden of showing that they have been injured by the presence of persons whose attendance was not inherently necessary. This was summarily rejected by the court in Commonwealth v. Harris, 231 Mass. 584 . “We think it wise to continue to follow the well settled methods of procedure which were adopted at and have continued since the settlement of this Commonwealth” (supra, p. 587).

June 26, September 15, 16, October 8, 9, and 13, 1964.

23,4 hours on October 8, 1% hours on October 9, and 3% hours on October 13, 1964.

The presentations he made to the grand jury while he was still being paid only by the crime commission were on April 28, 29, 30, and May 1, 1964.

April 28, 29, 30, May 1, 19, 20, 21, 22, 27, June 24, 25, September 14-18, 21-23, 26, 28-30, October 1, 2, 5-8, and 13, 1964.

Attorney General Brooke, Messrs. Greeley, Willcox, Simonds, Bartlett, and Skinner.

Later he said that Mr. Bartlett interrogated witnesses “from time to time.”

See for example G. L. c. 277, § 13. “No grand juror shall be allowed to state or testify in any court in what manner he or any other member of the jury voted on any question before the grand jury, or what opinion was expressed by any juror relative thereto. In charging the grand jury, the court shall remind them of the provisions of this and the preceding sections.”