Criminal Investigation No. 437 in Circuit Court for Baltimore City, In re, 82

• Decision Date: 01 September 1988
• Docket Number: No. 82,82
• Citation: 557 A.2d 235,316 Md. 66
• Parties: . ,
• Court: Maryland Court of Appeals

Page 66

316 Md. 66

557 A.2d 235

In re CRIMINAL INVESTIGATION NO. 437 IN the CIRCUIT COURT

FOR BALTIMORE CITY.

No. 82, Sept. Term, 1988.

Court of Appeals of Maryland.

May 5, 1989.

Ronald B. Rubin and M. Albert Figinski, Melnicove, Kaufman, Weiner & Smouse, P.A., Steven A. Allen, Davis, Weikel & Allen, Baltimore, all on brief, for petitioner.

Carolyn J. McElroy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

D. McCarty Thornton, Elizabeth L. Weiss on brief of The Office of the Inspector General of the U.S. Dept. of Health and Human Services, amicus curiae, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

CHARLES E. ORTH, Judge, Specially Assigned.

The question on this appeal is whether the Circuit Court for Baltimore City erred in ordering disclosure to the federal government for use in a civil proceeding against a private corporation of materials obtained from the corporation by the Grand Jury of Maryland in the course of a criminal investigation. We hold that the court did not err.

STATEMENT OF THE CASE

About the middle of June 1986, the Attorney General of Maryland, in compliance with gubernatorial mandates, see In Re Special Investigation No. 185, 293 Md. 652, 654, 446 A.2d 1151 (1982), brought the attention of the Grand Jury of Maryland, convened in Baltimore City, to a private corporation acting as a pharmaceutical Medicaid provider (the By consenting to this disclosure, [it] does not waive its rights to object to further disclosure to other persons or agencies.

                pharmacy). 1  Documents, including records of prescriptions filled at two of the pharmacy's stores, were obtained through subpoenas duces tecum issued by the Grand Jury.   The documents concerned the pharmacy and a licensed pharmacist employed by the pharmacy (the employee) in the activities of the pharmacy as a Medicaid provider. 2  In May 1988, the investigation was discontinued.   No indictments were returned.   The Grand Jury disbanded.   The pharmacy had reported that certain subpoenaed documents which the State permitted it to retain temporarily had been destroyed.   Nevertheless, the State felt that any monies that may have been overpaid by Medicaid should be recovered.   So it  
                turned to State civil procedures.   In the middle of June 1988, the State filed a motion in the Circuit Court for Baltimore City seeking authority to disclose to named State agencies all documents obtained by the Baltimore City Grand Jury and the State from the pharmacy "for the sole purpose of pursuing any State civil and administrative proceedings to recover any amounts previously overpaid to [the pharmacy]."  The pharmacy "agreed and consented to" the disclosure but with a proviso.   It declared
                

The employee was not a party to the consent. The court granted the motion and issued an order in accord therewith on 14 June 1988.

Then the State decided to request the federal government to pursue civil remedies. On 23 June 1988, the State filed another motion in the Circuit Court for Baltimore City seeking disclosure of certain Grand Jury materials, this time to the federal government so it could seek civil sanctions.

Upon a hearing, the court granted the State's motion by order dated 20 July 1988. On 22 July 1988, the State filed a "Motion for Appropriate Relief (Motion to Supplement Record)." The State sought permission to have a letter of transmittal accompany the documents ordered to be disclosed. The court granted the motion on the date it was filed.

The pharmacy and the employee noted a timely appeal to the Court of Special Appeals "from the Orders of the Circuit Court for Baltimore City entered in this action on July 20, 1988 and July 22, 1988, authorizing the disclosure of grand jury materials." We granted appellants' petition for the issuance of a writ of certiorari before decision by the intermediate appellate court.

THE GRAND JURY

The Common Law

The grand jury is of ancient English vintage. It stemmed from the "Grand Assize" established by Henry II, primarily as a weapon for the King's use in enforcing the King's peace. Gilbert, The Grand Jury--An Indictment, The Law Forum 4 (fall, 1987). An accusation by the Grand Assize was followed by trial by ordeal in the form of cold water or hot water or hot iron or abominable morsel. Id. The ordeal was of such nature that conviction usually followed an accusation. Although the barbarous trial by ordeal was abolished in 1215, the accuser and the trier of the facts, unlike today, were the same body. In re Report of Grand Jury, 152 Md. 616, 619, 137 A. 370 (1927). Gradually, however, the grand jury concept evolved to be that as we now know it. In the forty-second year of Edward III, at a commission of oyer and terminer, "the sheriff of the county was required ... to return a panel of knights, which the old records designate as 'Le Graunde Inquest.' " Id. at 620, 137 A. 370. "From that early time on to the present," we observed in In re Report of Grand Jury, 152 Md. at 621, 137 A. 370, and quoted in In Re Special Investigation No. 236, 295 Md. 573, 577-578, 458 A.2d 75 (1983),

the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations. ³

So, at the common law,

just as no man may be convicted and punished of a felony without the unanimous verdict of twelve of his peers In re Report of Grand Jury, 152 Md. at 621, 137 A. 370. Given that the two great purposes of the grand jury are to bring to trial those who are properly charged with crime, and to protect the citizen against unfounded accusations of crime, it is clear that

constituting a petit jury, neither can he be put to his trial for any such offense except upon the presentment or indictment by at least twelve of his fellow citizens, constituting the grand jury. ⁴

[t]he grand jury is an accusing body, and not a judicial tribunal, and it acts upon knowledge possessed by its members from any source, whether from witnesses brought before it, or from information gained before its sessions.

Coblentz v. State, 164 Md. 558, 566, 166 A. 45 (1933). We said in Blaney v. State, 74 Md. 153, 156, 21 A. 547 (1891):

[I]n this State they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders though no preliminary In the exercise of the broad inquisitorial power enjoyed by the grand jury, however, it is confined to an investigation of violations of the criminal law. In re Report of Grand Jury, 152 Md. at 622, 137 A. 370. In In Re Special Investigation No. 236, 295 Md. at 583, 458 A.2d 75, we declared: "The conclusion is inescapable that at common law the grand jury was concerned with matters criminal." ⁵

proceedings have been had before a magistrate, and though neither the court nor the State's Attorney has laid the matter before them.

"[U]nless such investigations [of matters criminal] disclose facts which would constitute a recognized violation of the criminal law, [the grand jury] have no power or authority to criticize any particular individual or number of individuals.

In Re Report of Grand Jury, 152 Md. at 623, 137 A. 370. In other words:

If the evidence obtained through their investigations warrants a presentment or indictment, under the law and the oath which they are required to take, they are bound to present or indict, and if in their judgment it falls short of showing the commission of a criminal offense, they are bound to refrain from making public the results of their investigation.

Id.

The Grand Jury Under the Federal Government

As we have seen, an integral part of the common law was the right of a person in a criminal cause to have his fate placed in the hands of his country, that is, in a jury of his When the British colonies were established in America, the common law of England followed. The time came when the colonists found it necessary to throw off the English yoke and obtain relief from the suppression of their "unalienable Rights." They won their independence on the field of battle and proclaimed it by a Declaration of Independence. Then,

                peers.   The jury concept encompassed not only the determination of a person's guilt or innocence of a crime charged, but also whether he should be charged with a crime in the first place.   Whether to charge was the function of a "grand" jury.   The determination of guilt or innocence of a crime charged was the function of a "petit" jury
                

in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity

they ordained and established a Constitution for the United States of America. The Constitution became effective on 4 March 1789, the day fixed for the commencement of the operations of the government, by virtue of its ratification by the conventions of eleven states, of which Maryland was one. On 25 September 1789, Congress proposed ten amendments which were declared ratified on 15 December 1791. The amendments became known as the Bill of Rights because they went to ensure and preserve those "unalienable rights" so arduously won in the fight for independence.

One of the rights guaranteed by the Bill of Rights was the entitlement of an accused to a jury. The Fifth Amendment concerned the grand jury:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.... ⁶

The Grand Jury in the State of Maryland

In Maryland, there is no constitutional right of a person accused of a crime to...