Grand Jury Service: Observations From a Criminal Lawyer

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by Jack W. Pirozzolo

Viewpoint

About the last thing I ever expected was that I would end up serving on a grand jury. I am currently an attorney in private practice at a large firm, where much of my practice involves the defense of organizations and individuals in criminal matters, including grand jury investigations. Before joining my current firm, I spent over ten years as a federal prosecutor in the U.S. Attorney’s Office in Boston and handled many lengthy, sometimes years-long, grand jury investigations.

The grand jury notice came in the spring and called me for grand jury duty in Norfolk County Superior Court in early July. According to the notice, if empaneled, I would be required to serve three days per week from 9:00 a.m. to 4:00 p.m. for approximately three months over the summer. Although such service would pose a major complication for my practice, I was not concerned. First, I expected that, given my background, there was no conceivable way I would get selected for the grand jury. Second, I figured that if, by some off chance, I did get selected, the summer months might be a slow time for the Court, so there would be a decent chance that the schedule of cases would not be full.

On the evening before I had to report, I sat with my wife and one of our kids at dinner and went over the jury form I needed to submit the next day to the Court. The form is intended to identify aspects of a potential grand juror’s background that might make the juror biased or otherwise not suited to serve.  We all chuckled as I went through the questions: Do you or any of your family members have any experience with the criminal justice system? Do you or any of your family members have any connections to law enforcement? Have you or any of your family members ever been a victim of a crime? I answered yes to virtually every question asked and then provided the required detail. We all believed that I would show up, get excused, and then head to the office later in the morning.

We were wrong. I arrived at the Norfolk County courthouse at the required time and eventually joined about a hundred other prospective grand jurors. We congregated in a courtroom before the presiding judge, who was there to select the twenty-three of us who would serve as grand jurors for the next three months. Grand jury selection proceeds similarly to jury selection for trials, with one major difference: there is no defense attorney or defendant. Only the prosecutors, the judge, the clerk, and the court officers are present.

The presiding judge told us that she would seat twenty-three jurors beginning with juror number one. She invited any juror whose number was called to approach the bench and inform her whether there was any reason that the juror could not serve on the grand jury. She had seated about half of the grand jury panel when she got to my number. I approached the bench, expecting that she would immediately excuse me after seeing my disclosure form. Instead, she had only one question for me: “Could I be fair?” Of course, my answer to that was “yes.” Having spent ten years presenting matters to grand jurors who were pulled away from their daily commitments to serve, I did not think it was either reasonable or prudent for me to protest that I was too busy to serve. I took my seat in the box.

Once all twenty-three of us were selected, we were escorted to the grand jury room for orientation. After a briefing on logistics, two prosecutors took over the balance of the orientation, which consisted of a process often referred to as the “preliminary legal instructions.” This process essentially consisted of the prosecutors reading to us model jury instructions for the Massachusetts criminal code. For more than two hours the prosecutors read, in detail, the instructions for each element of crimes ranging from assault and battery with a deadly weapon, possession with intent to distribute, larceny, homicide, etc. They then informed us that they would re-read the relevant instructions for the specific criminal offenses each time they presented a specific case for indictment.

I have been a lawyer for over twenty years and I have participated in scores of jury instruction readings. This was, however, my first experience sitting through jury instructions as a juror. The experience caused me to re-think my own assumptions about jury instructions and has led me to a couple of observations.

First, the preliminary instruction process for the grand jury needs to be reconsidered. A wholesale reading of the elements of multiple crimes, devoid of any factual context, served very little useful purpose, as there was simply no way that the grand jurors could have meaningfully and usefully processed the information the prosecutors were presenting. I am not suggesting that there was anything sinister in what the prosecutors were doing. But a two-hour reading of the elements of various crimes risked leading the grand jurors to develop an incomplete and, in some ways, inaccurate understanding of the relevant legal concepts.

My second observation regarding jury instructions developed over my entire time serving on the grand jury. As the grand jury moved on to the job of hearing and deliberating on specific cases and deciding whether there was probable cause (which is the only responsibility of the grand jury), I grew increasingly uneasy about what has become a well-settled and traditional practice on how juries are instructed. As part of the standard protocol, prosecutors read to us the relevant model instructions on each case immediately before our deliberations. My experience listening to these instructions as a grand juror led me to think that model instructions may provide a statement of a rule or applicable standard, but do not provide an appropriate frame of reference for jurors to contextualize the application of the rule to the particular case before them. Model instructions seem to be written by lawyers for lawyers and not for the laypeople who make up the bulk of the jury pool and are the intended audience. As lawyers, I think we tend to have a blind spot on this because the language of jury instructions is part of our professional vernacular. We have developed a shared language and understanding of what those words mean. Lay jurors do not have that shared understanding. Based on my experience in the grand jury, jury instructions would more effectively teach the jurors how they are supposed to apply the law to the facts by focusing less on the broad statement of the “law” or “elements” and more on specific examples of fact patterns that fall both within, and without, the scope of a particular criminal statute. If they have not already, courts may also want to consider investing in empirical testing to assess which types of instructions are most effective at teaching jurors to apply the law correctly.

During the three months, we had several different prosecutors appear before us. Those who were most effective tended to have certain common elements in their presentations.

First, they were very well organized. They arrived on time and ensured that their witnesses were available and ready at the appointed time. Their examinations were well ordered and their witnesses, particularly the law enforcement witnesses, were well prepared. They presented the evidence in a logical, coherent and efficient way. They did not leave gaps in the evidence and they did not overload us with repetitive or cumulative evidence.

Second, they made effective use of visuals. I was surprised at how often raw surveillance video provided only limited information about an event. Some prosecutors recognized that limitation and used their witnesses to explain how the surveillance video, for example, fit into the broader body of evidence being presented. Somewhat surprising to me was the fact that few, if any, prosecutors used overhead diagrams as a tool. Use of such diagrams would have made testimony, particularly about crime scenes, far more coherent and effective.

Third, they used a “cast of characters” chart with faces and names of people relevant to the investigation. Such a chart was particularly helpful when used to help organize a case with a large number of witnesses and potential “targets” (the people for whom the Commonwealth would seek indictments). Too often prosecutors seemed to forget, or not appreciate, how difficult it was for us to process how the different names we heard during the course of testimony related to the events in question, particularly when we were hearing about the individuals and events for the first time. The more effective prosecutors, no doubt recognizing the value of cast of characters charts, used them.

Fourth, they made effective use of witnesses. They allowed fact witnesses to testify in a more open-ended fashion, keeping leading questions to a minimum. They also, when necessary, framed their questions in a way that kept witnesses focused on the relevant information. Lay witnesses, many of whom are themselves unfamiliar with the process, can have a tendency to inject irrelevant, speculative and potentially prejudicial information into their testimony. The most effective prosecutors were able to focus their questions in a way that minimized the potential for a witness to stray. Sometimes that meant judicious and timely use of leading questions.

Fifth, they were careful to present facts that were potentially exculpatory or otherwise mitigating. While the Supreme Judicial Court has not required prosecutors in all instances to bring exculpatory evidence to the attention of grand juries, they are not permitted to withhold exculpatory or other evidence that leaves the grand jury with a distorted view of the facts. Commonwealth v. O’Dell, 392 Mass. 445 (1984). Those prosecutors that appeared to present the facts fairly were the most effective.

Sixth, they showed an appropriate appreciation of the grand jury’s independence as arbiter of whether charges are brought. Prosecutors have a tremendous ability to control the grand jury, but it is the grand jury that makes the charging decisions. The more effective prosecutors were careful to honor the grand jury’s domain.

This leads to my final observation about grand jury service. During the three months I served on the grand jury, virtually every attorney with whom I spoke about my service (usually in the context of changing a schedule) asked me whether the panel had yet indicted a “ham sandwich.” This is a reference to the famously overused statement from Judge Sol Wachtler, the former Chief Judge of the New York Court of Appeals, who believed that grand juries do not serve the protective function for which they were originally intended and would indict a “ham sandwich” if asked by the prosecutors to do so. In my experience, Judge Wachtler’s characterization grossly distorts both the grand jury’s role and how it functions.

While it is true that most cases presented to the grand jury result in an indictment of some kind, that fact largely is the consequence of two structural aspects of the grand jury: first, that the grand jurors need only to find “probable cause” rather than proof beyond a reasonable doubt; and second, that an indictment requires only twelve of the twenty-three grand jurors to agree that the prosecutor has met the probable cause showing. Although I cannot discuss any particular cases because of the requirement of grand jury secrecy, I generally observed that the grand jurors with whom I served took their obligations both to find the facts and to apply the facts to the law seriously. The group often took considerable time sorting through evidence and the relevant jury instructions that had been presented by the prosecution before making a decision on a proposed indictment. While it was rare for the grand jury to reject all charges, called issuing a blanket “no bill” (although it did happen), it was very common for the grand jury to “no bill” (reject) some, but not all, charges presented for indictment. In that respect, the grand jury played a significant role in determining the precise charges brought against a defendant. At least in that respect, the role of the grand jury as a shield was genuinely meaningful.

When I told colleagues that I had been selected to serve on a grand jury and that I would be tied up during most of the business day, three days per week, for three months, they were incredulous. The truth is that no one was more surprised than I. But looking back, it was well worth it. Not only did I make some new friends, but I also received a rare gift for someone in my position – I was able to see my profession from a completely new perspective, one that has given me a deeper and more complete view of the system in which I make my professional home.

Jack Pirozzolo is a partner in the Boston Office of Sidley Austin LLP where he represents individuals and organizations in a wide variety of civil and criminal matters.  Before joining Sidley, Jack spent ten years as an Assistant United States Attorney in the District of Massachusetts, the last five of which he served as First Assistant United States Attorney.


In the Matter of a Grand Jury Investigation, 485 Mass. 641 (2020)

by Victor Hansen

Case Focus

In one of his last opinions before his untimely passing, Chief Justice Ralph Gants addressed the unique and important responsibility of the criminal prosecutor to do justice.  In fulfilling this responsibility, the prosecutor acts not as an extension of law enforcement but as an important check against corrupt and abusive practices.  These reminders came in the Matter of a Grand Jury Investigation involving two police officers (the petitioners) who admitted filing false police reports regarding the use of force by a fellow officer.

While on duty, the petitioners observed, but did not participate in, the arrest of a citizen charged with, among other things, resisting arrest.  The arresting officer, Michael Pessoa, claimed that the arrestee was noncompliant and threatening, and that force had to be used to subdue him, as a result of which the arrestee was injured.  The petitioners supported Pessoa’s version when they completed an internal departmental report of the arrest.  However, video evidence revealed that the arrestee had not resisted.  Rather, Pessoa had struck the compliant arrestee with his head and shoulder, knocking the arrestee to the ground “in a violent manner.”

During an ensuing grand jury investigation into Pessoa’s conduct, the petitioners testified under grants of transactional immunity and admitted to lying in their departmental reports.  The district attorney sought permission from the Superior Court to disclose this information to criminal defendants in other cases where the petitioners could be potential witnesses, asserting that due process required the disclosure of this potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).  The petitioners sought to prevent the disclosure of their testimony.

In its decision, the Supreme Judicial Court addressed three questions: (1) whether Brady requires disclosure of this information in unrelated cases; (2) whether, if there is such an obligation, the district attorney could disclose the evidence even if it was obtained pursuant to a grant of immunity and order to testify before the grand jury; and (3) whether, if there is a Brady obligation, the prosecutor must seek prior judicial approval before disclosing the evidence.  The Court concluded that the prosecution had an obligation to produce the discovery at issue without a court order.  Writing for the Court, Chief Justice Gants powerfully reaffirmed that prosecutors do not serve a narrow constituency and are not merely an arm of law enforcement. Rather, the prosecution has the unique and important responsibility to seek justice.

First, the Court took a broad view of the type of evidence that falls within the scope of Brady. Brady covers not merely direct evidence of a defendant’s possible innocence, but equally information that challenges the credibility of key prosecution witnesses (the type of evidence at issue in this case).  The Court also noted that the prosecution’s disclosure obligations are broader than Brady, the Massachusetts Rules of Criminal Procedure, and the Rules of Professional Conduct require prosecutors to disclose all evidence or information that tends to negate the guilt of the accused or mitigate the offense.  The Court thus included within Brady not only the constitutional obligation to disclose exculpatory information but also the broader obligation to make disclosure under Massachusetts rules.

Second, the petitioners argued that the failure to disclose this evidence in other criminal cases would not automatically require new trials in those cases because, even if a defendant were convicted, the information is not exculpatory.  The Court rejected this argument for two reasons: it reflected a too narrow view of the scope of a prosecutor’s Brady obligation, and because such an approach would encourage prosecutors to game the system and only consider how much exculpatory information they could safely withhold. Chief Justice Gants reminded us that we expect more from prosecutors than gamesmanship: rather than operating close to the ethical sidelines, prosecutors must operate in the middle of the field.  According to the Chief Justice, “once the information is determined to be exculpatory, it should be disclosed – period.” And if the prosecutors are at all in doubt about the exculpatory nature of the evidence, they should err on the side of caution and disclose it.

Applying this standard, the Court had little difficulty determining that, when police officers lie in official reports, such information is exculpatory and must be disclosed to any criminal defendant in whose case those officers may testify.

The petitioners also argued that the immunity grant they had received in exchange for their grand jury testimony should be applied broadly.  They contended that, if their falsehoods were disclosed to defendants in other cases, it would penalize the police officers for invoking their privilege against self-incrimination and violate the protections they received from the immunity grant.  The Court concluded, however, that, while the evidence was compelled, that did not affect the prosecutors’ Brady obligations.  Even though the disclosed exculpatory information might paint the petitioners in a bad light and reveal their “dirty deeds,” the grant of immunity protected the petitioners only from prosecution and not embarrassment. Chief Justice Gants reminded prosecutors that complying with their Brady obligations might be inconvenient, uncomfortable, embarrassing or worse, but that prosecutors cannot fail to disclose Brady material out of a misplaced sense of duty or loyalty to law enforcement, or to prevent embarrassing themselves or members of their office, public officials or potential witnesses.  Although avoiding needless or gratuitous embarrassment is worthwhile, that interest never outweighs a criminal defendant’s due process rights. Disclosure is always the correct choice, even when it may have a short term impact on the relationship between prosecutors and others, including law enforcement officials.

Finally, the Court addressed whether prior judicial approval is required before disclosing Brady material that was part of a grand jury proceeding.  The Court again referred to the duties of the prosecutor.  While maintaining grand jury secrecy is important, the Massachusetts Rules of Criminal Procedure governing grand jury secrecy provide that prosecutors may disclose matters occurring before the grand jury doing so is within the official performance of their duties. Just as prosecutors have an official duty to present inculpatory evidence to a grand jury, they have an equally important duty to disclose exculpatory information that may enable defendants to prove their innocence.  Accordingly, the prosecution can disclose this Brady information without a court order as part of their official duties. Chief Justice Gants again emphasized that prosecutors represent not an ordinary party, but of a sovereignty whose obligation is to govern impartially.

Many familiar with the role and functions of the prosecutor may not find the Court’s ruling surprising. The ethical and constitutional obligations of the prosecutor are broad and, to its credit, the lawyers in the district attorney’s office recognized those obligations and proactively complied with them.  One might wonder, then, why Brady violations continue to be a persistent problem in the criminal justice system, both nationally and in Massachusetts. Indeed, one of the most egregious Brady violations in the Commonwealth’s recent history occurred not long ago, when prosecutors failed to disclose the breadth of an Amherst drug lab technician’s substance abuse problems, which affected many hundreds of criminal cases.

The reasons why Brady violations persist are complicated and varied, including confirmation bias, the difficulty of prosecutors policing themselves, the desire of prosecutors to have good working relationships with law enforcement, job security, and even racial bias.  It is a fitting testament to Chief Justice Gants’ legacy that he clearly recognized that none could outweigh a criminal defendant’s right to a fair trial. The Chief Justice’s opinion serves as a poignant and important reminder that our criminal justice system is far from perfect, and that prosecutors, when they are motivated and guided by a sense of doing justice, have a critical role to play to ensure it is just.

Professor Victor M. Hansen, Professor of Law, directs the Criminal Practice and Procedure certificate program and teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics at New England Law | Boston. He is the author of several articles and books on criminal and military law, evidence, and national security issues, and is an elected member of the American Law Institute. 


Massachusetts Grand Jury Primer: A Glimpse of Grand Jury Practice

Poulos_Lindaby Linda M. Poulos

The Profession

The right to be indicted by a grand jury in cases of capital and serious offenses is guaranteed under the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights. Grand jury proceedings have been the focus of national attention this past year.  Yet few people across this country understand how a grand jury functions. Further, grand juries vary from state to state in make-up, jurisdiction, and procedure.  Here in Massachusetts, grand jury practice strives to maintain the integrity and character of this essential component of our criminal justice system.

The grand jury occupies a unique and historic place in our jurisprudence.  See Jones v. Robbins, 8 Gray 329, 342-50 (1857); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009).  Comprised of citizens who sit independently and in secret, “the grand jury have the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.”   Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974).  Probable cause is reasonable grounds to believe that a crime has been committed by a certain person.  “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citations omitted).

In Massachusetts, the grand jury is comprised of twenty-three citizens.  A Superior Court judge, usually assisted by an Assistant District Attorney, empanels a grand jury every three months.  In Suffolk County the jury sits four days per week for the entire three months.  Though some employers pay for all jury service, most will pay only the required first three days of service after which the State will pay fifty dollars per day. Using individual voir dire, the judge inquires of each potential juror on the issues of hardship and impartiality.  Finding fair and impartial grand jurors who can commit to this three month schedule under these financial conditions is difficult, and empanelment usually takes two days.  Once twenty-three jurors are chosen, the court will administer the Grand Jury Oath, G.L. c.277, §5. The Judge follows with the traditional instruction explaining briefly the duties and responsibilities of grand jurors, and then remands them to the care of the prosecutor to begin their work.

The District Attorney oversees the presentation of cases to the grand jury.  The prosecutor’s unique access to the police and the victims and witnesses of crimes provides a practical avenue to presenting cases in grand jury.  The grand jury meets in secret.  The witnesses and evidence that come before it are not disclosed to anyone during the pendency of any investigation.  In fact, jurors are forever bound by the secrecy requirement. The grand jury serves both a screening and an investigative function.  The grand jury will hear cases for which an arrest has been made to determine whether an indictment should issue, and will also conduct complex investigations into alleged crimes for which no arrest has been made.  Standard cases range from simple gun and drug possessions to physical assaults and robberies, from sexual assaults and child abuse to shootings and homicides.  A case cannot proceed to Superior Court for trial unless a grand jury has returned indictments.

Typically, the Assistant District Attorney will present evidence through the testimony of sworn witnesses, supplemented with physical evidence.  All evidence is obtained through grand jury subpoenas.  Physical evidence can take many forms: photographs, surveillance video, recorded statements, drug and gun certificates, medical and other business records.  All witnesses summoned before the grand jury are entitled to be represented by an attorney.  Witnesses who refuse to testify or otherwise assert a privilege will appear with counsel before a judge for a hearing on that issue. If the judge determines that the witness has a valid claim of privilege, the judge will excuse the witness from testifying.  Only the grand jurors, the prosecutor, the witness, and a stenographer, lawyer or interpreter are allowed to be present during testimony.  All testimony of witnesses is recorded and transcribed into grand jury minutes and these are later provided as part of a discovery package to an indicted defendant.

The evidence required for a grand jury to indict is “considerably less exacting” than the evidence required for a petit jury to find guilt at trial. Commonwealth v. Walczak, 463 Mass. 808, 817 (2012).  See also Riley, 73 Mass. App. Ct. at 726.  The rules of evidence are relaxed during grand jury presentations. Leading questions are allowed, and hearsay is permissible. Grand jurors have the opportunity to question witnesses.  In furtherance of their duties, grand jurors may request the Court to order witnesses or potential targets to provide DNA samples, fingerprints, or even participate in lineup procedures.  This evidence assists the jurors in making the ultimate finding of probable cause, and may exculpate or inculpate a potential target.  Grand jury practice has developed over time to now afford the grand jurors a fuller and more complete review of the evidence.  While once a single police officer may have been sufficient to establish probable cause, the current practice is for grand jurors to hear most of the percipient witnesses and to receive corroborative evidence, and such exculpatory evidence as is available.

The other major role of the Assistant District Attorney is to serve as a legal advisor to the grand jury.  See Walczak, 463 Mass. at 823-24, 840-41.  Traditionally prosecutors instruct on and explain the law whenever appropriate, necessary, or requested by the grand jurors.  Id.  The Court, however, does not require instruction unless specifically requested by the grand jury.  Commonwealth v. Noble, 429 Mass. 44, 48 (1999).  Recently, the Court carved out an exception to this longstanding rule.  In cases where the prosecutor seeks to charge a juvenile defendant with murder and where, apart from any claim of lack of criminal responsibility, there exists substantial evidence of mitigating circumstances or defenses — e.g. that the defendant acted in the heat of passion based on reasonable provocation or sudden combat — the prosecutor must instruct the jury on the elements of murder and the legal significance of this evidence on the record.  Walczak, 463 Mass. at 809.  In Suffolk County, as a case comes before the grand jury for the first time, the prosecutor will define the elements of the potential crimes and applicable legal concepts using standard jury instructions and case law.  Once a jury has been instructed on a specific charge or concept, they will receive subsequent instructions as requested or needed. Before voting any charge, the grand jury has received all applicable instructions of law.

At the conclusion of the evidence, the prosecutor will ask the grand jury to vote on a charge or charges.  The jurors deliberate in secret, and the prosecutor is not present.  For each crime, the jurors must determine if there is probable cause to charge a certain defendant.   If the Commonwealth presents sufficient evidence to meet the standard of probable cause, it is the duty of the juror to vote in favor of a true bill or indictment.  In order to true bill a charge, twelve or more grand jurors must vote to support the indictment.  If fewer than twelve jurors vote to support a charge, the result is a No Bill, that is, no indictment.  Although twenty-three members make up a whole grand jury, a minimum of thirteen need be present to have a quorum.  In all cases at least twelve jurors must vote to return a true bill or indictment.  The foreperson signs the indictments on behalf of the grand jury and returns these indictments to the Court.

Ultimately, the Court oversees and reviews the grand jury process.  At any time, the jurors may request instructions from a judge.  For the most part, the legal requirements and responsibilities placed on prosecutors in grand jury have been simple and straightforward.  In order to sustain an indictment, the evidence presented to the grand jury must establish probable cause.   McCarthy, 385 Mass. at 163.  The prosecutor also has a duty to uphold the integrity of the grand jury process and provide significant exculpatory or other mitigating evidence that would influence the grand jury’s decision to indict.  Commonwealth v O’Dell, 392 Mass. 445, 451 (1984); Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986).  Upon meeting these requirements, an indictment will survive most challenges.

The public would be impressed with the commitment demonstrated by the members of the grand jury.  From the moment they take their oath to the end of the three months of service, the jurors work hard to be fair and impartial, fulfilling their solemn responsibility to properly charge individuals with crimes and to uphold their obligation to serve and protect the citizens of this Commonwealth.

 

Linda Poulos is an Assistant District Attorney with the Suffolk County District Attorney’s Office. She has been the grand jury coordinator for the last 15 years.


Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.