In re Jury

• Decision Date: 12 August 2019
• Docket Number: No. 217-2017-CV-00382,217-2017-CV-00382
• Parties: In re: Grand Jury
• Court: New Hampshire Superior Court

In re: Grand Jury

No. 217-2017-CV-00382

Sate of New Hampshire MERRIMACK, SS SUPERIOR COURT

August 12, 2019

ORDER

The Office of the New Hampshire Attorney General ("OAG") seeks permission to produce a public report detailing its investigation into St. Paul's School ("SPS") and in so doing disclose materials and testimony provided to a grand jury. For the reasons stated in this Order, the Court DENIES the OAG's Supplemental Motion to Produce and Publicly Disclose a Report of the OAG's Investigation into SPS (the "Motion to Produce and Disclose"). Accordingly, the OAG may not produce any report that contains any material produced to the grand jury through subpoena or testimony or that is characterized as a "Grand Jury Report."

The Court believes that no confidential information is contained in this Order, and there is no reason why it should not be made public. Accordingly, the Court orders that any party who seeks that this Order remain under seal shall file a memorandum, no longer than 5 pages in length, setting forth the reasons that the Order should remain under seal within 10 days from the notice of decision in this matter. If no such memorandum is filed, the Order shall be made public. Because the Court has issued no order which changes the status quo ante, there is no reason for the Order to be stayed.

I. Procedural Background

Although the entire file in this case has been placed under seal, much of the information about the OAG's actions has been placed in the public domain by the OAG. The OAG's Motion to Produce and Disclose includes as Appendix A a six-page Settlement Agreement (the "Settlement Agreement") between the State and SPS dated September 11, 2018. The Settlement Agreement specifically provided that it would be made public. (Settlement Agreement ¶ 22.) A three-page Appendix to the Settlement Agreement calls for and outlines the duties of an Independent Compliance Overseer to carry out the terms of the Settlement Agreement. Under the Settlement Agreement, SPS agreed "to a period of oversight by the [OAG] and to implement improvements in its training, policies, and practices related to responding to allegations of physical and sexual abuse made by students." (Motion to Produce and Disclose ¶ 4.)

The Settlement Agreement not only discloses that the OAG instituted a grand jury investigation into whether SPS engaged in conduct constituting endangering the welfare of a child contrary to RSA 639:3, violations of RSA chapter 642 occurred, and obstructing government operations, but the Settlement Agreement contains specific detail about the scope and conduct of the investigation. It states in relevant part that:

WHEREAS, as a result of the Grand Jury inquiry, and with the cooperation of St. Paul's School, thousands of pages of documents were produced for inspection by the Office of the Attorney General and the Grand Jury;

WHEREAS, pursuant to the powers of the Grand Jury, numerous witnesses testified regarding their knowledge of these matters;

WHEREAS, the Attorney General convened an investigative task force to pursue leads, interview witnesses, and gather evidence based on the documents and testimony provided to the Grand Jury;

WHEREAS, as a result of its investigation, the Office of the Attorney General has indicated its intention to seek indictments based on the New Hampshire child endangerment statute, RSA 639:3, I, against St. Paul's School regarding this matter;NOW THEREFORE, the Office of the Attorney General and St. Paul's School agree to resolve this matter without criminal proceeding in accordance with the terms and conditions set forth below. Such resolution will facilitate the protection of children to a greater extent than a criminal proceeding, and will ensure a system of accountability, oversight, transparency, and training.

Accordingly, the Office of the Attorney General agrees that there will be no prosecution of St. Paul's School or its individual agents regarding the handling of past allegations of the physical abuse or sexual abuse of students by faculty or staff, or by fellow students in exchange for the following:

A. Oversight of St. Paul's School (to include the Advanced Studies Program) by the Office of the Attorney General for a period of up to five years, such oversight to include . . .

(Settlement Agreement at 1.)

The Settlement Agreement outlines the obligations of SPS through the Independent Compliance Overseer ("Compliance Overseer") in 25 paragraphs, encompassing five pages. The Settlement Agreement also provides:

The Office of the Attorney General will release a report concerning its investigation and will also release investigative materials, to include grand jury materials contingent on the required approval from the New Hampshire Superior Court. St. Paul's School agrees to waive any claim of confidentiality in the grand jury proceedings or records.

(Settlement Agreement ¶ 23.)

Before producing a report in accordance with the provisions of the Settlement Agreement, the OAG sought permission to disclose the Motion to Produce and Disclose along with transcripts of grand jury testimony to prospective witnesses and to provide those witnesses 14 days to object to the OAG's use of their testimony and production of the report. That Motion was granted by this Court on November 1, 2018. In due course, a number of individuals, using various pseudonyms (the "Doe Witnesses") filed Motions to Stay and modify the November 1, 2018, Order. The OAG agreed to take no action with respect to the November 1, 2018, Order until the Doe Witnesses' Objections wereresolved.¹

II. Grand Jury Secrecy

Both the OAG and the Doe Witnesses agree that, in New Hampshire, grand jury proceedings are secret. The parties further agree that the rule of grand jury secrecy is encompassed in New Hampshire Rule of Criminal Procedure 8, Supreme Court Rule 52, and the common-law interpreting and applying these provisions. New Hampshire Rule of Criminal Procedure 8 is modeled upon Federal Rule of Criminal Procedure 6 and part (b) (6) provides that:

A grand juror, interpreter, stenographer, typist who transcribes recorded testimony, attorney for the State, or any person to whom disclosure is made under paragraph (C) below, shall not disclose matters occurring before the grand jury, except:

(A) As provided by the Supreme Court rules;

(B) To an attorney for the State for use in performance of such attorney's duties;

(C) To such state, local or federal government personnel as are deemed necessary by an attorney for the State to assist in the performance of such attorney's duty to enforce state criminal laws;

(D) When so directed by a court in connection with a judicial proceeding;

(E) When permitted by the court at the request of an attorney for the State, when the disclosure is made by an attorney for the State to another grand jury in the State; or

(F) When permitted by a court at the request of an attorney for the Stateupon a showing that such matters may disclose a violation of federal criminal law or the criminal law of another state, to an appropriate official of the federal government or of such other state or subdivision of the state, for the purpose of enforcing such law.

A. The Position of the Parties

The OAG argues that in the circumstances of this case, the material presented before the grand jury is not confidential and may be disclosed in a "public report." The New Hampshire Supreme Court has specifically stated that a party seeking disclosure of grand jury proceedings must demonstrate "particularized need". State v. Damiano, 124 N.H. 742, 749 (1984). This is the same standard applied by the federal courts when interpreting the requirements for piercing grand jury secrecy under Federal Rule of Criminal Procedure 6. Douglas Oil Co. v. Petrol Stop Northwest, 441 U.S. 211, 216 (1979). The Court believes that the federal precedent relating to what constitutes a "particularized need" is applicable to determining whether grand jury disclosure should occur under New Hampshire law.

The State does not, however, argue that it can meet the traditional standard of a showing of "particularized need." Rather, it makes two related arguments. First, it argues that the principles underlying grand jury secrecy do not limit a witness's ability to disclose the testimony materials that they provided to the grand jury and, therefore, secrecy is not absolute nor all-inclusive and can be waived. In support of this argument, citing Butterworth v. Smith, 494 U.S. 624 (1990),the State suggests that prohibiting it from producing a grand jury report would be violative of the First Amendment rights of SPS and grand jury witnesses.

Second, the State argues that, in light of SPS's waiver of confidentiality, the OAG investigation into SPS presents a unique circumstance justifying the disclosure of a publicreport containing otherwise secret grand jury information. In making this argument, the OAG relies upon a handful of cases that either allow waiver of grand jury secrecy by a witness, In re Biaggi, 478 F.2d 489 (2d Cir. 1973), or allow disclosure in "special circumstances," In re Petition of the American Historical Association, 49 F. Supp.2d 274 (S.D.N.Y 1999).

The Doe Witnesses object. They argue that there is no New Hampshire precedent for a "grand jury report" and that, while witnesses may have the right to disclose their testimony before a grand jury, there is no precedent for the proposition that grand jury witnesses can assign their First Amendment rights to the OAG so that the OAG may prepare a report or dissemination of a report of the grand jury investigation to the public.

B. "Particularized Need" and "Special Circumstances"

A few federal courts have held that the disclosure of grand jury minutes may be permitted for reasons other than the "particularized need" standard of Federal Rule of Criminal Procedure 6 and Douglas Oil. See, e.g., Carlson v. United States, 109 F. Supp. 3d 1025, 1032-34 (N.D. Ill. 2015) (authorizing release of grand...