Petition of Jessup

• Decision Date: 04 November 1957
• Citation: 136 A.2d 207,11 Terry 530,50 Del. 530
• Parties: , 50 Del. 530 Petition of John B. JESSUP, Foreman, Grand Jury for New Castle County, for Instructions.
• Court: Delaware Superior Court

Page 207

136 A.2d 207

11 Terry 530, 50 Del. 530

Petition of John B. JESSUP, Foreman, Grand Jury for New

Castle County, for Instructions.

Superior Court of Delaware, New Castle County.

Nov. 4, 1957.

Joseph Donald Craven, Atty. Gen., for petitioner.

Alexander Greenfeld, Deputy Atty. Gen., for respondent.

William S. Potter (of Berl, Potter & Anderson), and Clair J. Killoran (of Killoran & Van Brunt), Wilmington, amici curiae.

TERRY, Presiding Judge.

A proper determination of the questions presented by this litigation are so indispensable to the proper administration of justice that I deem it essential to present all of the factual circumstances, together with my views, concerning the principles of law involved.

The Senate of this State during the present session of the General Assembly adopted Senate Resolution No. 86, which in pertinent part is as follows:

'Providing for a Committee with full power to investigate illegal gambling and related crimes, to hire personnel and making an appropriation therefor.

'Whereas, both the Attorney General and the New Castle County Grand Jury have presented alarming reports concerning wide spread gambling activities in and about the City of Wilmington; and

'Whereas, organized unlawful gambling presents a serious threat to the moral, economic and political life of the citizens of this State;

'Now, Therefore, be it resolved:

'That the President Pro Tempore of the Senate is authorized and directed to appoint a special committee to investigate the nature and extent of gambling and related crimes in this State and report its findings and recommendations to the Senate in January, 1958.

'The said Committee shall select a chairman and secretary from its membership who shall sign the warrants drawn on the State Treasurer.

'That the said special committee shall have all the investigating powers expressed or implied which are possessed by the Senate of the State of Delaware, including the power to subpoena witnesses and administer oaths, and shall remain in being fully vested with such powers until abolished by the One Hundred Nineteenth Session of the General Assembly.'

The Grand Jury in this County during the year 1956, at the instance and request of the Attorney General, conducted a most thorough investigation relating to the subject of gambling in and about the City of Wilmington. The Attorney General appeared before the Grand Jury during its hearings; in fact, he supervised the presentation of testimony delving into the subject matter of the investigation. Many witnesses appeared--some by reason of subpoena, others on a voluntary basis--resulting in the taking and transcribing of volumes of testimony.

The Special Committee of the Senate, in furtherance of its purpose, met during the month of September, 1957, and organized by selecting the Honorable Walter J. Hoey as its Chairman and the Honorable Elwood F. Melson, Jr. as its Secretary.

The Committee, by its Chairman and Secretary, caused to be issued on the 25th day of September, 1957, a subpoena duces tecum addressed to John B. Jessup, present Foreman of the Grand Jury in and for this County, directing him to appear before the Special Committee on the 30th day of September, 1957. The mandate called for the production of transcripts of testimony of all witnesses who had appeared under subpoena and testified before the Grand Jury during March, April and May, 1956.

The Attorney General on September 26, 1957, representing Mr. Jessup, filed in this Court the following petition for instructions:

'To the Honorable, the Judges of the Superior Court:

'1. I, John B. Jessup, Foreman of the 1957 Grand Jury for New Castle County, have on this 25th day of September, 1957, been served with a subpoena from the Special Senate Committee investigating gambling, to appear on Monday, September 30, 1957, at 10:00 a. m. in the Senate Chamber, Legislative Hall, Dover, Delaware, duces tecum all transcripts of testimony of persons who appeared pursuant to subpoenas before the Grand Jury of March, April, and May, 1956, to testify in regards to gambling and related activities in New Castle County.

'2. Your Petitioner has been informed by an opinion of the Attorney General that the above mentioned records are under the control of the Superior Court of New Castle County and in the custody of the Prothonotary.

The opinion of the Attorney General indicates that the release of these transcripts is solely within the discretion of this Court.

'3. Your Petitioner prays this Court for instructions as to the manner in which he should respond to the subpoena of the Special Senate Committee.

'Respectfully submitted,

/s/ John B. Jessup

'John B. Jessup, Foreman

'Grand Jury for New Castle County

'Joseph Donald Craven

Attorney General'

Upon the filing of the petition on September 26, 1957, I designated and appointed William S. Potter, Esquire, of the firm of Berl, Potter and Anderson, and Clair J. Killoran, Esquire, of the firm of Killoran and Van Brunt, amici curiae to advise and aid me in reaching a proper determination of certain obvious questions raised under the petition for instructions.

The amici curiae, on September 26, 1957, filed the following motion:

'The undersigned, as amici curiae appointed by the Court in the above entitled cause, move for the issuance of a rule of this Court, addressed to the Hon. Walter J. Hoey, Hon. Elwood F. Melson, Jr., Hon. Peter Nechay, Hon. Lemuel H. Hickman and Hon. Jacob A. Correll, constituting the Special Committee appointed pursuant to Senate Resolution No. 86, commanding them and each of them to appear and show cause, if any they have, why the subpoena of the said Committee issued September 25, 1957, and to bring with him 'All transcripts of testimony of persons who appeared, pursuant to subpoena, before the Grand Jury during March, April and May, 1956, to testify with respect to gambling and related activities in New Castle County', should not be quashed, and the said John B. Jessup instructed not to respond to the same.

'The undersigned show to the Court as reason for the issuance of such a rule that under the law of Delaware the proceedings of a Grand Jury may not be disclosed except upon order of the Court and then only in furtherance of the administration of justice.

'/s/ Clair J. Killoran

'/s/ W. S. Potter'

On the 26th day of September, 1957, I entered the following order:

'Ordered that Walter J. Hoey, Elwood F. Melson, Jr., Peter Nechay, Lemuel H. Hickman and Jacob A. Correll, constituting the Special Committee appointed pursuant to Senate Resolution No. 86, shall appear in the Superior Court in and for New Castle County on Tuesday, the 15th day of October, 1957, at 10 o'clock in the morning, to show cause, if any they have, why the subpoena duces tecum issued by said Committee to John B. Jessup, commanding him to appear on September 30, 1957, should not be quashed.

'It is further ordered that the said John B. Jessup shall not appear in response to said subpoena until the further order of this Court.

'It is further ordered that copies of this order shall be served upon each member of the Special Committee appointed pursuant to Senate Resolution No. 86 and upon John B. Jessup.'

Alexander Greenfeld, Esquire, Deputy Attorney General, appeared for the Special Senate Committee on October 15, 1957, the return date of the Rule.

The factual circumstances heretofore stated give rise to two questions for determination (1) Is testimony taken before a Grand Jury in this County subject to the control of the Superior Court?

(2) If the answer to Question No. 1 is in the affirmative, should the Superior Court direct that transcripts of testimony taken before the Grand Jury be delivered to a duly constituted Committee of the General Assembly in response to a subpoena duces tecum issued by such Committee?

The first question suggested is one of first impression in Delaware. Its answer must depend upon analysis of the historic genesis of the Grand Jury as an instrumentality of justice, together with its purposes and operations as they were and are at common law, for, while in many other States the functioning of the Grand Jury has been circumscribed (see Note, 52 Har. Law Rev. 151; 37 Minn.Law Rev. 586), in Delaware the Grand Jury has preserved a close likeness to its common law progenitor.

The origin of the Grand Jury has given rise to protracted discussion on the part of learned writers and has been productive of widely different conclusions. The Grand Jury is an institution of English speaking countries, of historic interest by reason of the obscurity surrounding its origin, its gradual development, and the part it has played in some of the most stirring events in the history of the Anglo Saxon race; of political interest by its effectual protection of the liberty of the subject from an arbitrary power of government; of legal interest in that its power and action has been said to be repugnant to 'the experience and theory of English law'. It has been extravagantly praised as the 'security of Englishmen's lives' (Lord Summers, London 1694), the conserver of his liberties, 4 Bl.Com. 349, and the noblest check upon the malice and oppression of individuals and States; Addison App. 18. It has been bitterly assailed as 'purely mischievous', Bentham Rationale of Judicial Evidence, Vol. 2, page 312, and a 'relic of barbarism', Grand Juries, 29 L.T. 21.

In exploring the origin of the Grand Jury we are reminded that centuries were required to develop our present day notions of justice as they have accreted under the common law. As the methods of determining guilt or innocence took shape, banishing forever the barbaric trial by battle or appeal (see Thayer, The Older Modes of Trial, 5 Har.Law Rev. 35), so was the shaping of our grand jury system most gradual.

While it is true, as one distinguished scholar stated, that 'the long shadows of history shroud the precise point in time when the first Grand Jury was...