In re Petition for Disclosure of Evidence, etc.

• Decision Date: 24 March 1960
• Citation: 184 F. Supp. 38
• Parties: In the Matter of PETITION FOR DISCLOSURE OF EVIDENCE BEFORE THE OCTOBER, 1959 GRAND JURY OF THIS COURT.
• Court: U.S. District Court — Eastern District of Virginia

184 F. Supp. 38

In the Matter of PETITION FOR DISCLOSURE OF EVIDENCE BEFORE THE OCTOBER, 1959 GRAND JURY OF THIS COURT.

United States District Court E. D. Virginia, Richmond Division.

March 24, 1960.

J. Elliott Drinard, City Atty., T. Gray Haddon, Commonwealth's Atty., Richmond, Va., for City of Richmond.

Joseph S. Bambacus, U. S. Atty., Richmond and Henry S. FitzGerald, Asst. U. S. Atty., Alexandria, Va., for United States.

BRYAN, Chief Judge.

Application is now made, on behalf of the City of Richmond, by the Attorney General of Virginia, the Commonwealth's Attorney of the City, and the City Attorney to have made available to the City Council, through the Mayor, the evidence adduced before the grand jury and referred to in an oral and written statement of the grand jury to this court on March 15, 1960. Prefaced by their conclusions upon the probative force of the evidence, the grand jurors' statement asked the court to consider turning the evidence over to the Mayor of the City of Richmond and the Governor of Virginia. The United States opposes the release of the evidence until the indictments thereon are tried in this court.

Sensitive to their duties, the nature of the statement quite understandably brought the Council and the attorneys here immediately. At the start, then, the legal status of the return should be declared. Except for the request it made, the statement despite its sincerity has no standing in law.

The jurors had been cautioned by the court not to make a report condemning or commending anyone, but to indict or refuse to indict. The reason against condemnation, the court explained, was its unfairness—that the condemned person would thereafter have no opportunity in court to refute the accusation.

The necessity for secrecy as to what occurred before them was also stressed. Reports by a Federal grand jury should also be rigidly restrained in order to avoid obtrusion upon the spheres of the legislative and executive branches of the Government, as well as infringement upon the provinces of the State and local governments. Therefore, a report upon a condition, if ever justified in a United States Court, must be severely circumscribed. Cf. Application of United Electrical, Radio and Machine Workers, D.C.S.D.N.Y.1953, 111 F.Supp. 858, ff., with opinion by Judge Edward Weinfeld; Stack v. Boyle, 342 U.S. 1, 9-10, 72 S.Ct. 1, 96 L.Ed. 3, concurring opinion.

The recommendation of the grand jury obviously sprang from a scrupulous and conscientious concern that their silence, in the knowledge of the character of the evidence, might be a dereliction of duty. Their purpose, plainly, was to communicate to the court their conviction that the evidence before them warranted the scrutiny of the State and City authorities. To assist this inquiry they suggested a referral of the evidence to those authorities. This was wholly proper. But, for this purpose, their return should have been simply a communication to the court recommending, without more, that the evidence be laid before the State and City officials.

Although acting in the utmost good faith, the jury's report should not have made known the tenor or purport of the evidence before them, for this was an exposure of their proceedings. Nor should it have made public the implications the jurors drew from this evidence, for this was an encroachment upon State and local jurisdiction. All of the report save the request it contains must, therefore, be expunged. The question now is whether the suggestion of the grand jury can, and should be, followed.

Secrecy of grand jury hearings has in history and in hornbook been a precept of criminal procedure. The nature and virility of the grand jury, as a common law institution, could be seriously weakened if the privileged privacy and security of its hearings were readily or freely withdrawn. Persons would be deterred, through fear of subsequent publicity and possible reprisals, to reveal to the grand jury their knowledge of crime committed or of facts helpful in its detection. United States v. Procter & Gamble, 1958, 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077; United States v. United States District Court, 4 Cir., 1956, 238 F.2d 713, 719.

But the secrecy is not inviolable. Quite soundly, the same doctrine relaxes the injunction whenever the public interest would be better served by delivering up the grand jury evidence. Resolution of the conflict has immemorially been entrusted to the court of the grand jury. The seal of secrecy, as well as the responsibility of the court, are now written into the Federal Rules of Criminal Procedure, Rule 6(e), 18 U.S.C.A., prescribing:

"Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand

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