Passaic County Grand Jury, In re

• Decision Date: 20 October 1986
• Citation: 532 A.2d 757,220 N.J.Super. 470
• Parties: In re Presentment of PASSAIC COUNTY GRAND JURY. (Criminal), Passaic County
• Court: New Jersey Superior Court

Page 470

220 N.J.Super. 470

532 A.2d 757

In re Presentment of PASSAIC COUNTY GRAND JURY.

Superior Court of New Jersey, Law Division (Criminal), Passaic County.

Decided Oct. 20, 1986.

Bernard F. Conway, Morristown, for petitioners Lawrence Kramer, George Tuttle and Larry D. Worth (Giblin, Combs, Cooney & Conway, attorneys).

Randolph M. Subryan, Paterson, and Jane E. Hendry, for Prosecutor (John P. Goceljak, Acting Passaic County Prosecutor, attorney).

MANDAK, A.J.S.C.

This opinion is responsive to petitioners' motion seeking to quash the presentment delivered on January 31, 1986 by the Special Passaic County Grand Jury, January 1985 Stated Session, Panel D, July 1984 Term. The presentment charges three officials of the City of Paterson with mismanaging Comprehensive Employment and Training Act (hereinafter "CETA") funds. Petitioners, former Paterson municipal officials, challenge the polls of the grand jury on the grounds that the participation of five Paterson residents on the grand jury constitutes a per se inference of bias. It is urged that their influence as interested citizens and taxpayers of the City of Paterson tainted the entire grand jury process.

Between 1974 and 1983, the United States Department of Labor allocated funds for the City of Paterson to train and employ persons in low income areas. At the CETA program's conclusion in 1983, the then Director of Finance for Paterson disclosed that the City of Paterson overspent its allocation of CETA funds creating a municipal deficit in the amount of $1,492,959.44. Thereafter, Paterson residents were assessed an additional tax to pay for the CETA deficit. The Passaic County Prosecutor's Office conducted an investigation and requested that a special grand jury be impanelled to further investigate the circumstances of the overexpenditures.

The grand jury's investigation determined that, in general, "the CETA program was mismanaged by the City of Paterson during the years from 1976 to 1982." This mismanagement was found to have taken various forms, including: the failure by the director of the CETA program to familiarize himself with the basic rules and regulations relating to the program; the failure of the municipal administration to insure that the employees administering the program were fully trained and conversant with those rules and regulations; the failure of the municipal administration to insure that funds were not overexpended; the failure of the municipal administration to take immediate and necessary steps to rectify previous overexpenditures; the failure of the municipal administration to provide for audits of the CETA program; and finally, the resulting deficit which more recently placed an extra tax burden on Paterson residents. Particular criticism was directed toward Lawrence Kramer, then Mayor of the City of Paterson, Larry D. Worth, then Business Administrator of the City of Paterson, and Frank J. Del Monico, then Director of the CETA program. The grand jury exercised its power to issue a presentment outlining its findings and recommendations while recognizing the CETA overexpenditures as "a matter of serious public concern."

In Passaic County, grand jurors are selected by jury commissioners from voter registration and motor vehicle registration lists. Questionnaires are sent by the jury commission to the prospective grand jurors in order to ascertain basic rudimentary and objective qualifications for jury duty. After processing the questionnaires, the jury commission compiles a list of legally competent grand jurors. The first 23 persons on the list who are not excused are selected to be sworn and impanelled as a grand jury. Neither the court nor the prosecutor's office has control over the composition of the grand jury. This procedure was followed during the impanelling of the special grand jury investigating the mismanagement of CETA funds.

As a result of the sensitive nature of the within investigation, this court took supplemental precautions to protect against a partial or biased determination by the grand jury. First, the court charged the jurors as to their duties and responsibilities. Thereafter, a grand jury oath was administered by the county clerk to the jurors. ¹ Each member then was given a copy of the charge and instructed to review the same before the first session. ²

Prior to calling the first witness, the assistant prosecutor instructed the grand jury as to certain procedures which were to be followed and read R. 3:6-9 verbatim to the jurors. A list of names of the proposed witnesses was also read to the members and the jurors were instructed to indicate whether any of the witnesses were known to them. One juror stated that he knew of Mayor Kramer, but not on a personal basis. Further questioning of this particular juror revealed no indication of actual bias whatsoever.

After hearing 15 witnesses, including petitioners, during numerous sessions, the grand jury decided on March 5, 1985 to return a presentment, by a vote of 14 in favor out of a total of 18 grand jurors qualified to vote. Five members of the grand jury abstained from voting because they had not attended all of the sessions. It has been disclosed for the purpose of this motion that at least one Paterson resident voted in favor of the presentment. A committee of jurors were then selected to draft the presentment and on November 6, 1986 the grand jury reconvened to vote on the final draft of the presentment. Nineteen grand jurors attended this session (three grand jurors who previously abstained and one grand juror who previously voted "yes" did not attend), and the vote taken was 17 in favor of the presentment, none opposed and two abstentions. Four grand jurors who previously voted "no" on March 5, 1985 changed their positions and voted "yes" on November 6, 1986. Thus 13 of the original 14 "yes" votes remained the same and added thereto were the four "yes" votes made by grand jurors who previously voted against the presentment.

Petitioners contend that the five Paterson residents should have been automatically disqualified from investigating the actions of Paterson officials in administering the CETA program. The argument for per se disqualification of Paterson residents from the grand jury is based on petitioners' assertion that the residents would be partial because they "are the most affected by the matter under investigation." Petitioners initially raised this contention after the grand jury returned a presentment.

The historic purpose of grand and petit juries was "to guard against the exercise of arbitrary power to make available the common sense judgment of the community as a hedge against over zealous or mistaken prosecutors and in preference to the professional or perhaps overconditioned or biased response of a judge." Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). This precept requires a court to review a motion for the overturning of a jury decision with the utmost scrutiny and caution. State v. Long, 204 N.J.Super. 469, 499 A.2d 264 (App.Div.1985).

Our Federal and New Jersey State Constitutions concur as to the necessity of providing such an important role for the grand jury in our legal system. Article I, paragraph 8 of the 1947 New Jersey State Constitution provides that "no person shall be held for a criminal offense, unless on the presentment or indictment of a grand jury...." An inflexible exigency of the grand jury selection process is that it "be so designed as to obtain competent jurors from a cross-section of the community." State v. Rochester, 54 N.J. 85, 89, 253 A.2d 474 (1969); see also State v. Porro, 158 N.J.Super. 269, 385 A.2d 1258 (App.Div.1978). These decisions explain why jurors are randomly selected from voter registration lists, and more recently from motor vehicle owner registration lists. Any systematic exclusion or deliberate interference, irrespective of purpose, with a random jury selection from a list of qualified citizens potentially corrupts the cross-section ideal. ³

An investigative grand jury is authorized to investigate and to submit a grand jury report on conditions affecting the "morals, health, sanitation or general welfare of the county, as well as county institutions." In re Presentment of Bergen Cty. Grand Jury, 193 N.J.Super. 2, 7, 471 A.2d 1203 (App.Div.1984). Rule 3:6-9(a) states that presentments may censure public officials for non-criminal failure to discharge their public duties. Id. at 8, 471 A.2d 1203; In re Presentment by Camden Cty. Grand Jury, 34 N.J. 378, 169 A.2d 465 (1961). By the very nature of an investigative grand jury with its application of community values and standards, the community cross-section standard becomes quintessentially valuable in determining whether public officials have breached their public duties. Therefore, the grand jury must be a body adequately acquainted with "local conditions, customs and mores." State v. Anderson, 132 N.J.Super 231, 233, 333 A.2d 291 (App.Div.1975).

Another characteristic of grand jury presentments is the confidential manner in which the investigation proceeds. See generally 2 Beale & Bryson, Grand Jury L. & Prac. (1986), § 7:01 et seq. Maintaining secrecy and confidentiality throughout a grand jury session is absolutely necessary to protect the interests of the persons under investigation. As a result of such confidentiality, the prosecutor is unaware of the residency and composition of the jurors. Only the assignment judge is aware of the jurors qualifications. Moreover, often neither the assignment judge nor the prosecutor know what the facts and testimony are going to disclose. It follows that grand jurors are given a wide latitude of discretion in their investigatory powers because our society has entrusted these matters within the realm of the jurors' common sense and sense of fairness. It would often be premature, as it would have been in the instant matter, to per se disqualify...