Bishop v. Caudill

¶1dissents because BISHOP had an adequate remedy through motions to exclude or suppress the results of any improper use of the grand jury.

¶2concurring in part and dissenting in part.

¶3I agree with the majority’s conclusion that extraordinary relief in the form of a writ of prohibition is appropriate in this case because it is unlikely that post hoc appellate review will provide Appellant with a meaningful remedy if the Commonwealth actually uses the grand jury’s investigative powers for the “sole or dominating purpose of preparing an already *5pending indictment for trial.”1 Accordingly, I concur in the majority’s holding to the extent that it remands this case to the Court of Appeals and instructs it to issue a ■writ “prohibiting the trial court from allowing the grand jury to subpoena defense trial witnesses until ... a determination [is] made as to whether the sole or dominant purpose of the issuance of those subpoenas is to facilitate discovery by the Commonwealth ....”21 dissent, however, and write separately from the majority, because I disagree with the majority’s suggestion that, in order to make the necessary determination, the trial court must conduct an evidentiary hearing3 at which defense counsel presumably would examine the Commonwealth’s Attorney under oath regarding the reasons for the subpoena’s issuance and the topics upon which the attorney intends to examine the witness before the grand jury. While I recognize that the trial court in this case now must reach an informed decision as to the reason that these subpoenas were issued, I fear that the majority overlooks the possibility that the remedy it has fashioned here could — not only in this case, but in future cases — impair legitimate grand jury investigations by lifting the veil of secrecy surrounding those proceedings. In my opinion, this Court should require a higher threshold of evidence of wrongdoing before it subjects attorneys for the Commonwealth to cross-examination under oath as to details of ongoing grand jury investigations. Accordingly, I dissent from the majority opinion to the extent that it holds that the trial court must conduct an evi-dentiary hearing in order to determine whether the Commonwealth is misusing the grand jury’s subpoena power to prepare its case against Appellant for trial. And, I propose an alternative procedure that would — by allowing trial courts the discretion to determine, in a particular case, the appropriate means to examine evidence as to the prosecuting attorney’s motives — shield criminal defendants from abuses of the grand jury’s subpoena power while also maintaining grand jury secrecy to the greatest extent possible.

¶4Grand juries are charged with investigating all “offenses which come to their attention or of which any of them has knowledge,”4 and “[c]ourts are extremely reluctant to scrutinize grand jury proceedings as there is a strong presumption of regularity that attaches to such proceedings.” 5 While Commonwealth’s Attorneys assist grand juries in their investigations,6 the prosecution may not use the grand jury to conduct discovery in connection with a pending indictment. Unfortunately, it is sometimes difficult to draw a bright line between legitimate investigations and improper trial preparation:

While it is easy to say that the court’s inquiry must focus on the primary purpose underlying the grand jury’s involvement, there is a fine line between an improper “trial preparation” use of a grand jury and a proper “continuing investigation.” The fine line is difficult to plot and, in most instances, determining whether a prosecutor has overstepped it *6will depend on the facts and circumstances of the particular case.7

¶5In recognition of this difficulty, courts have applied a presumption of regularity to such subpoenas and assigned to the moving party the burden of demonstrating the Commonwealth’s improper use of grand jury proceedings.8

¶6When a party alleges that the Commonwealth is preparing to use the grand jury improperly and moves to quash a subpoena issued on the grand jury’s behalf, a trial court’s inquiry into that allegation is complicated by the fact that it does not have the benefit of hindsight9 and must attempt to assess the Commonwealth’s motives before the Commonwealth questions the witness in front of the grand jury. Because grand jury proceedings are secret,10 an open and public inquiry into the reason(s) why a particular witness has been subpoenaed could compromise that secrecy and impair the grand jury’s legitimate investigatory functions. Accordingly, I believe that a procedure designed to protect criminal defendants from potential abuses of the grand jury’s subpoena power must also consider the importance of maintaining the secrecy of grand jury investigations.

¶7To this end, I believe that, in this and in future cases, trial courts’ factual findings in this regard should be made in accordance with a procedure that allows trial courts the discretion to conduct evidentia-ry hearings in appropriate cases, but that recognizes the presumption of regularity in grand jury proceedings and thus requires prosecuting attorneys to reveal information about grand jury investigations only when necessary. Thus, I believe that the moving party first should be required to make a prima facie showing that the prosecuting attorney intends to use the grand jury “for the sole or dominating purpose of preparing an already pending indictment for trial.” The moving party could satisfy this prima facie showing by filing an affidavit or other evidence demonstrating that. (1) the grand jury has already returned an indictment against the moving party; and (2) after the return of the indictment, a witness who is likely to testify at the trial of the pending indictment has been subpoenaed to testify before the grand jury. If, after reviewing this evidence, the trial court is satisfied that the moving party has made a prima facie showing, the trial court should then require the prosecuting attorney to file, under- seal, an affidavit identifying his or her reasons for subpoenaing the witness to testify before the grand jury11 and outlining the topics upon which he or she intends to examine the witness. If the trial court is satisfied from an in camera review *7of the prosecuting attorney’s affidavit that the Commonwealth is not using the grand jury for trial preparations, it should make a finding of fact to that effect and deny the motion to quash the subpoena. But, if the trial court is not satisfied with the Commonwealth’s explanation after reviewing the affidavit, the trial court could either quash the subpoena, or, in its discretion, receive additional evidence in a closed hearing before making factual findings and ruling upon the motion to quash.

¶8While I recognize a hypothetical risk that the procedure outlined above could lead to an erroneous decision by the trial court that prejudiced a criminal defendant under a pending indictment — i.e., in an extremely unlikely case where an attorney for the Commonwealth submitted a false affidavit as to the purpose behind a witness’s testimony before the grand jury — I do not believe this theoretical possibility supports the majority’s view that an evi-dentiary hearing is a necessary first stage in this inquiry. If a trial court were to deny a motion to quash the subpoena on the basis of representations made by an attorney for the Commonwealth in an affidavit, and a witness subsequently testified before the grand jury, the trial court could, in its discretion, elect to review the witness’s grand jury testimony.12 And, if, upon such review, the trial court were to determine that the witness was in fact subpoenaed before the grand jury for the sole or dominating purpose of preparing an already pending indictment for trial, the trial court could and should grant any and all relief reasonably necessary to protect the defendant’s right to a fair trial— beginning with, but not limited to, preventing the Commonwealth from benefit-ting from its improper use of the grand jury by: (1) prohibiting the Commonwealth from using the witness’s grand jury testimony for any purpose at trial and suppressing any evidence the Commonwealth obtained as a result of or in response to the witness’s grand jury testimony; and (2) disqualifying the Commonwealth Attorney’s office involved in the abuse from further prosecution of the indictment in question and prohibiting any member of that office from directly or indirectly communicating the substance of any information gleaned from the grand jury examination to any attorney subsequently appointed to prosecute the indictment.

¶9In this case, I believe Appellant has made a prima facie showing that the prosecuting attorney may have issued these subpoenas to examine defense witnesses before the grand jury in connection with trial preparations. Under the procedure outlined above, this prima facie showing “puts the ball in the Commonwealth’s court.” Although the majority opinion indicates that the Commonwealth filed a written response to Appellant’s motion to quash the subpoenas and attached an affidavit,13 the passage quoted in the majority opinion actually appeared in the Commonwealth’s Response to Petitioner’s Motion for Leave to Supplement the Original Petition for Writ of Prohibition and/or Mandamus in the Court of Appeals — a pleading filed nearly two (2) weeks after the trial court ruled on the motion to quash — and the affidavit referred to in the majority opinion was not even prepared until ten (10) days after the trial court’s ruling. In fact, it is not clear from the limited record before us in this proceeding that the Commonwealth ever filed a written response to the motion to quash. No copy of such a pleading is attached to any of the plead-*8mgs filed either in this Court or in the Court of Appeals, and the trial court’s order denying the motion suggests that the basis for its conclusion was an oral representation (and an “off-the-record” one at that) by the Commonwealth:

In an off the record conversation between the Court, Defense Counsel and the Commonwealth, the Commonwealth indicated that they had subpoenaed a witness who is a minor, and although the Commonwealth indicates that the witness is not being called in to testify directly about the case against the Defendant, Dwayne Earl Bishop, it is calling her in to testify as to possible witness intimidation by someone against her other than Dwayne Earl Bishop; and, therefore, the Court hereby OVERRULES the motion to quash that subpoena. (Emphasis added).

¶10Although the Commonwealth’s Attorney apparently told the trial court informally that the subpoenas had been issued to allow the grand jury to investigate potential witness intimidation as well as the possibility of other persons’ involvement in the homicide for which Appellant has already been indicted, such statements do not constitute evidence upon which the trial court could base findings of fact. Thus, in my opinion, after the Court of Appeals issues a writ directing the trial court to quash the subpoenas pending the trial court’s resolution of the underlying issue, the trial court should: (1) direct the Commonwealth’s Attorney to file an affidavit as outlined above;14 (2) consider this sworn testimony, as well as any other evidence it deems necessary; (8) make a finding of fact as to whether the Commonwealth subpoenaed these witnesses before the grand jury for the “sole or dominating” purpose of obtaining discovery and/or preparing for Appellant’s trial; and (4) rule on Appellant’s motion to quash.