In re 38 Studios Grand Jury

• Decision Date: 20 February 2020
• Docket Number: PM 17-701,No. 2017-301-Appeal.,2017-301-Appeal.
• Citation: 225 A.3d 224
• Parties: IN RE 38 STUDIOS GRAND JURY.
• Court: Rhode Island Supreme Court

225 A.3d 224

IN RE 38 STUDIOS GRAND JURY.

No. 2017-301-Appeal.

PM 17-701

Supreme Court of Rhode Island.

Issued February 19, 2020

Corrected February 20, 2020

Claire J. Richards, Esq., Adam J. Sholes, Esq., for Governor.

Michael W. Field, Esq., Susan Urso, Esq., Rebecca Tedford Partington, Esq., Kate C. Brody, Esq., for Attorney General.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Flaherty, for the Court.

In this controversy, two constitutional officers of this state, the Governor and the Attorney General, present us with conflicting views about whether certain grand jury materials should become available to the public or whether, in the alternative, those materials should be protected from public view in accordance with existing court rules and centuries of cautious precedent. The Governor and the Attorney General have both vigorously and articulately argued their positions as each sees her or his constitutional responsibilities. In essence, the question presented to this Court is: Is the Superior Court vested with the "inherent supervisory authority" to order the public disclosure of grand jury materials—materials that are generally kept secret—from a grand jury that adjourned less than five years ago, that could potentially be reopened, and that dealt with events for which the potentially relevant statute of limitations has not yet run? In her official capacity, Governor Gina M. Raimondo asks this Court to answer that question in the affirmative on appeal from a judgment of the Superior Court that answered the question in the negative. For the reasons set forth in this opinion, this Court affirms the judgment of the Superior Court.

IFacts and Travel

There can be no question that the Governor's appeal involves a matter of intense public concern with which many, if not most, Rhode Islanders are familiar. In 2010, the Economic Development Corporation (EDC), a quasi-public corporation created by the Rhode Island General Assembly, issued $75 million in bonds to guarantee loans for 38 Studios, a video game company headed by former Boston Red Sox World Series hero Curt Schilling. As is painfully well-known, just two years later 38 Studios failed and did not honor its obligation to repay the bonds, leaving the taxpayers of Rhode Island to foot an $88 million bill.¹

In 2012, a statewide grand jury convened to investigate the possibility of potential criminality in connection with the 38 Studios deal. That grand jury sat for eighteen months and, as has been confirmed by the Attorney General, completed its work in 2015. During the course of the investigation, which began before the convening of the grand jury, approximately 146 individuals, including members of the 2010 General Assembly, were interviewed or called to testify before the grand jury. However, at the conclusion of the grand jury investigation, in a joint statement, the Attorney General and the Rhode Island State Police announced that there were not any "provable criminal violations of the Rhode Island General [L]aws in connection with the funding of 38 Studios, the disbursement of funds to 38 Studios, and by 38 Studios to vendors."

Independent of the grand jury investigation, the state initiated civil litigation against persons and entities that had been involved in the 38 Studios deal. The settlements recovered in excess of $61 million for taxpayers, and hundreds of thousands of documents produced during the course of litigation were made public. Following the close of the civil litigation, the Governor filed a miscellaneous petition in the Superior Court in February 2017, seeking "the release of all 38 Studios Grand Jury Records[.]"

To support her petition, the Governor argued: (1) that the Superior Court, in exceptional circumstances, has the discretion to release grand jury materials; (2) that exceptional circumstances exist; and (3) that the need for grand jury secrecy is outweighed by those exceptional circumstances. The Attorney General opposed the Governor's petition. The Presiding Justice of the Superior Court heard the petition in April 2017, and thereafter rendered a thorough twenty-four-page written decision in which she determined that, because the Governor was not seeking disclosure pursuant to Rule 6(e) of the Superior Court Rules of Criminal Procedure, which governs grand jury secrecy and permits disclosure of grand jury materials in certain enumerated instances, she was without authority to grant the Governor's petition. However, although she founded her ruling on the Rules of Criminal Procedure, the Presiding Justice also conducted alternative analyses and ruled that, even if the Superior Court had the authority to go beyond Rule 6(e) to allow disclosure of the grand jury materials requested, the grand jury materials in this case should not be disclosed because the Governor had failed to demonstrate a particularized need for the information requested and, separately, because policy factors that courts consider when determining if grand jury disclosure is appropriate did not support disclosure in this case. Judgment therefore entered denying the petition, and the Governor timely appealed.²

Before this Court, the Governor asserts that it was error for the Presiding Justice to read Rule 6(e) as the sole avenue by which grand jury materials may be disclosed. She argues that, beyond the specific provisions of Rule 6(e), the Superior Court is cloaked with the "inherent authority" to disclose the material that she has requested. The Governor also contends that the Presiding Justice erred when she engaged in alternative analyses. In this regard, the Governor maintains that the Presiding Justice should not have applied the "particularized need" test to the petition for disclosure because that test applies only when evaluating a request for disclosure pursuant to Rule 6(e). Further, the Governor argues that the Presiding Justice abused her discretion when she determined, in the Governor's words, "that the Governor's disclosure request failed to meet factors in favor of the release of grand jury material."

IIDiscussion

This case raises a weighty question of first impression in this jurisdiction. That is, whether the Superior Court has inherent authority to disclose grand jury materials beyond the parameters of the permitted disclosures that are set forth in Rule 6(e) of the Superior Court Rules of Criminal Procedure. This question is of grave importance because it concerns an institution that plays a critical role in our criminal justice system. Indeed, it often has been said that the grand jury "serves the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." In re Doe , 717 A.2d 1129, 1134 (R.I. 1998) (quoting United States v. Sells Engineering, Inc. , 463 U.S. 418, 423, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) ). Despite these important roles, however, it remains true that the function of the modern-day grand jury is not well known, even to many lawyers. See Paul S. Diamond, Federal Grand Jury Practice & Procedure § 1.01 at 1 (5th ed. 2012).

In Rhode Island, there exist both county and statewide grand juries. See G.L. 1956 chapters 11 and 11.1 of title 12. An individual in Rhode Island cannot be tried on any felony carrying a maximum penalty of life imprisonment without an indictment having been issued by a grand jury. R.I. Const., art. 1, § 7 ; Super. R. Crim. P. 7(a). Grand juries not only pass on whether to indict those charged or suspected of serious crimes, but they also serve an investigatory function. See State v. Guido , 698 A.2d 729, 735 (R.I. 1997) (discussing the grand jury's "interrelated but distinct functions" of investigation and indicting). A prosecutor who presents evidence and witnesses before the grand jury has the power to, "in practice, select the witnesses to be subpoenaed to appear before the grand jury and generally direct the investigation." Id. at 736 (quoting In re Melvin , 546 F.2d 1, 5 (1st Cir. 1976) ). The prosecutor presents the evidence, and the relevant law, to the grand jury and may ultimately ask the grand jury to vote on an indictment. See Super. R. Crim. P. 6(f) ("An indictment may be found only upon the concurrence of twelve (12) or more jurors and shall be signed by each juror who concurred in the finding.").

In some cases, the prosecutor will have all of the information that he or she requires for an indictment readily available. Those types of cases would most commonly involve criminal offenses that require indictment by a grand jury, those that, as mentioned above, carry a maximum sentence of life imprisonment. That type of grand jury, which does not conduct an investigation but rather acts on a request to issue an indictment, is known as an "indicting grand jury." 1 Sara Sun Beale, Grand Jury Law and Practice § 1:7 at 31 (2d ed. 2018). In other cases, however, the state may be uncertain as to whether proof of criminal conduct exists; in that situation, it will use the grand jury to compel witness testimony and receive evidence to determine whether provable criminal conduct has taken place. See id. at 32-33 (discussing the utility of the investigative grand jury and noting that it "is particularly well-suited to investigating business crime, political corruption, organized crime, and other criminal activity where there is no identifiable victim to report the offense and help investigative agencies"). When the government employs a grand jury in this way, it is commonly referred to as an "investigative grand jury." Id. at 31. Of course, after the completion of the investigation, if the government believes that there is sufficient evidence of provable criminal conduct, it will ask the grand jury to vote on whether to indict. If an indictment is returned, the case is charged and proceeds to trial or other disposition.

A grand jury that hears evidence, and that may be asked...