United States v. McKenzie

• Decision Date: 10 September 1981
• Docket Number: Crim. A. No. 81-281.
• Parties: UNITED STATES of America v. John E. McKENZIE, et al.
• Court: U.S. District Court — Eastern District of Louisiana

524 F. Supp. 186

UNITED STATES of America v. John E. McKENZIE, et al.

Crim. A. No. 81-281.

United States District Court, E. D. Louisiana.

September 10, 1981.

Michael D. Johnson, Stephen P. Clark, Linda L. Hagerty, Civ. Rights Div., Washington, D. C., Morris W. Reed, Asst. U. S. Atty., New Orleans, La., for plaintiff.

Ralph S. Whalen, Jr., New Orleans, La., for Dale Bonura, Stephen Farrar, Stephen Reboul and Ronald F. Brink.

Walter J. Rothschild, New Orleans, La., for Thomas Woodall, Richard LeBlanc.

Ralph Capitelli, New Orleans, La., for John E. McKenzie.

ORDER AND REASONS; MOTION TO DISMISS INDICTMENT

DUPLANTIER, District Judge.

On November 8, 1980, while on duty, New Orleans Police Patrolman Gregory Neupert was shot to death. His body was found next to his police car parked near a public housing project in the Algiers area of New Orleans. There followed immediately an intensive investigation by the New Orleans Police Department to learn the identity of his murderers. On November 13, while police officers were engaged in an attempt to arrest three suspects, gun battles ensued, resulting in the death of the suspects. Three concurrent investigations into all of the circumstances were begun almost immediately, one by the New Orleans Police Department Internal Affairs Division, a second by the United States Department of Justice, Civil Rights Division and the New Orleans United States Attorney's office, with a federal grand jury, and a third by the District Attorney for the Parish of Orleans, with a local grand jury. These investigations concerned not only the events surrounding Neupert's murder and the subsequent killing of the three suspects, but also public allegations of police brutality allegedly occurring in the course of their efforts to apprehend whoever was responsible for Neupert's murder. On July 9, 1981, the federal grand jury returned an indictment containing numerous counts, all relating to alleged deprivation of the civil rights of various persons questioned by police following Neupert's murder. No indictment was returned related to the killing of the three suspects.

All seven defendants filed a motion to dismiss the indictment because of circumstances involved in the grand jury proceedings.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, ..." Amendment V, Bill of Rights, United States Constitution.

As it has often done, the Supreme Court in United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974) emphasized the ancient role and solemn responsibilities of the grand jury:

"The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by `a presentment or indictment of a Grand Jury.' Cf. Costello v. United States, 350 U.S. 359, 361-362 , 76 S.Ct. 406 407-408, 100 L.Ed. 397 (1956). The grand jury's historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687 , 92 S.Ct. 2646 2659, 33 L.Ed.2d 626 (1972)." (Footnote omitted).

The Fifth Amendment guarantees an individual the right to be charged with a felony only by an indictment of an independent and unbiased grand jury. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). As the Supreme Court stated in Wood v. Georgia, "The grand jury ... has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused," 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). Nothing more or less is required than that an indictment be returned by a legally constituted and independent grand jury. Costello v. United States, Id. at 363, 79 S.Ct. at 408. In the absence of that independence, a grand jury no longer performs its vital function of protecting the rights of individuals but rather becomes the tool of the prosecutor. The fact that grand jury proceedings are secret, non-adversarial and almost totally under the control of the federal prosecutor magnifies this concern that the grand jury be independent. United States v. Serubo, 604 F.2d 807 (3d Cir. 1976); United States v. Samango, 607 F.2d 877, 883 (9th Cir. 1979).

Cognizant of the importance of the grand jury and concerned that grand juries should be properly guided in the performance of their duties, in 1978 the Judicial Conference of the United States approved a model grand jury charge for use by district courts throughout the nation. In the presence of government prosecutors, the grand jury which returned the indictment in this case was given that charge by the court. Reference is made hereafter to portions of the charge; two statements in the introductory part of the charge are pertinent here:

"The duties with which you as grand jurors are charged are of the highest importance to the proper administration of justice."

"The resolute independence of the grand jury came about only after considerable blood was shed and punishment meted out to our forebearers."

The Judicial Conference charge admonishes the members of the grand jury: "... you, in a very real sense, stand between the government and the accused." At issue here is whether activities of the government through its prosecuting attorneys have effectively prevented the grand jury from maintaining that "resolute independence" for which our forebearers' blood was shed, so that the grand jury could not "stand between the government and the accused."

In determining the validity of this indictment, the issue is not the good faith of the grand jury or of the prosecutors. Unintentional prosecutorial behavior can cause improper influence and usurp the role of the grand jury. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal ..." Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 573, 72 L.Ed. 944 (1928). Dismissal of an indictment on account of activities by prosecutors before the grand jury can be based either upon the constitutional rights of defendants under the Fifth Amendment or upon the court's inherent supervisory powers. In either case, the court's goal is to protect the integrity of the criminal justice system, "particularly the functions of the grand jury, from unfair or improper prosecutorial conduct." (Citations and footnotes omitted.) United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir. 1977).

The court is mindful of the deference rightfully accorded to grand jury proceedings. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). As other courts have been in considering attacks upon indictments, we are reluctant to interfere with prosecutorial direction or to encroach on the independence of the grand jury. It is a close question whether this is one of those unusual cases in which an indictment must be dismissed to protect the constitutional rights of those indicted or the integrity of the judicial process. The line between the discharge by government attorneys of their responsibility to seek a grand jury indictment when in their opinion it is justified and abuse of the grand jury process is sometimes a thin and indistinct one. Nevertheless, after careful and thoughtful consideration of the transcript¹ of the grand jury proceedings the court is left with the firm conviction that that thin and indistinct line was crossed in this case.

The court dismisses this indictment both on constitutional grounds and under its duty to exercise supervisory power over grand jury proceedings.² We are convinced that the defendants have been denied their constitutional right not to be brought to trial except after a valid indictment. We are equally convinced that the integrity of the grand jury process must be protected from prosecutorial activity such as has occurred here. To refuse to dismiss this indictment would invite the repetition of such activity in future grand jury proceeding by signifying the court's approval thereof.

We have attempted to review all of the relevant jurisprudence, including those cases brought to our attention by counsel and those found through our independent research. We make no detailed analysis in this opinion of any of these cases because we have found, as did the court in United States v. Chanen, that "(a)lmost every court dealing with the issue raised here has confronted a novel set of facts." 549 F.2d 1307, 1309 (9th Cir. 1977). A review of these prior decisions reveals that although most courts have resisted dismissing indictments for prosecutorial activity before the grand jury,³ other courts have not hesitated to dismiss indictments where the prosecutors' activities have warranted dismissal.⁴ Not one of these prior decisions involves circumstances even remotely similar to the unusual and perhaps unique circumstances surrounding this indictment.

Among numerous such instances called to the court's attention by defendants' motion, we list here some of the improper actions by the prosecutors (there were two attorneys from the Justice Department, Civil Rights Division and one local Assistant U.S. Attorney present at almost all times). A number of these actions, standing alone, would not warrant judicial intervention. The totality cannot merit the stamp of judicial approval. The cumulative effect of...