by Hon. Robert L. Ullmann
Voice of the Judiciary
Advising the Commonwealth’s highest court about an institution older than the Massachusetts Constitution, and one that operates in secrecy, was the daunting mandate given to the 14 members of the Supreme Judicial Court Committee on Grand Jury Proceedings (“SJC Grand Jury Committee”).
The Supreme Judicial Court (“SJC”) appointed us last year to gather information about how prosecutors present evidence to and instruct grand juries, and to seek to identify “best practices” for grand jury presentments.
Not surprisingly, given the committee’s composition of prosecutors, defense attorneys, sitting and retired judges, and one law professor, the search for best practices involved extensive and at times passionate debate. Perhaps surprisingly, the committee was able to reach consensus on a significant number of best practices in six core areas of grand jury activity, with extensive input from the bar, in particular the Commonwealth’s prosecutors’ offices.
The committee’s Final Report, issued in June, is available on the Supreme Judicial Court website.
Grand juries hear and view evidence presented by prosecutors and decide whether probable cause exists to return indictments on felony charges. Like trial jurors, grand jurors are chosen from randomly selected groups of citizens (venires) summoned to courthouses in each county. Unlike trial court proceedings, however, judges and defense lawyers are not present for grand jury proceedings, and a grand jury witness’s lawyer may be present solely to advise the witness. The judicial branch oversees the grand jury, but prosecutors run the grand jury’s day-to-day activities.
In identifying best practices, the committee recognized that grand jury presentment is a prosecution function that the SJC has described as subject to “limited judicial review.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999). However, committee members also recognized that the grand jury is “an integral part of the court,” and that judges have a “duty to prevent interference with [grand jurors] in the performance of their proper functions, to give them appropriate instructions, and to assist them in the performance of their duties.” In re Pappas, 358 Mass. 604, 613 (1971).
The best practices address issues such as what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on lesser included offenses or other less serious charges than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.
All of the recommended best practices are currently employed by one or more prosecutors’ offices, demonstrating that the state’s prosecutors were already taking the initiative in exploring practices to ensure that grand jurors are adequately instructed and that the integrity of grand jury presentments is not impaired. The recommended best practices were selected because they assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution. All of the recommendations are fully consistent with existing SJC and Appeals Court law.
Creation of the committee and its work
The committee arose from the SJC’s opinion in Commonwealth v. Grassie, 476 Mass. 202 (2017), in which the Court stated that it would convene a committee on grand jury practices before considering an extension to adults of the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012). In Walczak, the Court required prosecutors to provide certain legal instructions to grand jurors when prosecutors seek to indict a juvenile for murder and substantial evidence of mitigating circumstances or defenses exists.
Although the committee arose out of one court decision, the SJC did not limit the scope of the committee’s fact-gathering and asked the committee to recommend best practices in any area of grand jury practice it wished to consider. This broad mandate raised concerns among many of the Commonwealth’s elected prosecutors.
When the committee sought public comment on a draft of its proposed best practices in March, a considerable number of district attorneys criticized the proposals as an unconstitutional intrusion by the judiciary into the exclusive role of the executive branch in making charging decisions. A few district attorneys also saw the proposed best practices as an attempt to impose on them “one size fits all” practices similar to federal grand jury requirements. In addition to raising these broad concerns, the district attorneys offered detailed critiques of specific proposals. The committee also received comments from the Committee for Public Counsel Services, the Boston Bar Association, and several individuals. The committee carefully reviewed all and adopted many of these comments, resulting in an improved set of best practices and commentary which were submitted to the SJC in June.
The committee also considered the broader concerns raised by district attorneys but ultimately concluded that recommending best practices on the presentation of evidence and instructions to grand juries fell squarely within the SJC’s charge to the committee. Moreover, given the judiciary’s role in ensuring the integrity of grand jury proceedings, the committee believed that recommending best practices from existing prosecutors’ office practices did not violate the separation of powers, intrude upon prosecutorial discretion in charging decisions, or impose a “federalized” one-size-fits-all approach to grand jury practice.
Having served on criminal law reform committees for over three decades, I was deeply gratified to see experienced prosecutors and defense attorneys (and the rest of us) forcefully express opposing views, but carefully listen to each other and put aside parochial concerns to reach principled compromise. There is a nationwide trend toward prosecutor best practices, but the practices typically cover areas other than the grand jury, and non-prosecutors are rarely involved in the process. Because our committee had representation among a range of participants in the criminal justice process, the practices that we unanimously viewed as exemplary should have added credibility.
Our committee had no authority to require the implementation of best practices, and the Final Report explicitly states that it is “not intended to give substantive or procedural rights to people accused or convicted of crimes or to serve as the basis for motions to dismiss indictments.” Over time, courts may look to the best practices we identified to render legal decisions, but that was not the purpose of our work. I believe that I speak for the entire committee in expressing the hope that the Commonwealth’s prosecutors on their own initiative will recognize what is exemplary among practices already in use, broadly adopt those practices, and continue the process of developing new best practices in the future.
Robert L. Ullmann has been an Associate Justice of the Massachusetts Superior Court since 2013. He was chair of the Supreme Judicial Court Committee on Grand Jury Proceedings.
In addition to the author, the other committee members were Hon. Peter W. Agnes, Jr., Appeals Court; Janice Bassil, Esq; Berkshire District Attorney Paul J. Caccaviello ; Hon. Judd J. Carhart, Appeals Court (retired); Assistant Attorney General David E. Clayton; Middlesex Assistant District Attorney Kevin J. Curtin; Deputy Chief Counsel Randy Gioia, Esq., Committee for Public Counsel Services; Hon. Bertha Josephson, Superior Court (retired); Clinical Professor Diane S. Juliar, Suffolk University Law School; Bristol District Attorney Mary E. Lee, Kevin M. Mitchell, Esq.; and Suffolk Assistant District Attorney Donna Jalbert Patalano (prior to her departure from the district attorney’s office.) Maureen McGee, Esq. was counsel to the committee.