Six Burning Questions About Grand Jury Leaks

Pennsylvania Attorney General Kathleen Kane looks on before newly elected members of the Pennsylvania Legislature are sworn in, Tuesday, Jan. 6, 2015, at the state Capitol in Harrisburg, Pa. Republicans who control both the Senate and House picked up additional seats in the November election. In the House, Republicans outnumber Democrats 119 to 84 and in the Senate, 30 to 20. (AP Photo/Matt Rourke)

The scepter still hangs over Kathleen Kane’s head.

It’s been a couple of weeks now since the Inquirer reported that a grand jury recommended the Pennsylvania attorney general be indicted for leaking the secrets of a previous grand jury. And it’s been nearly as long since the Inquirer revealed that two of its reporters had been subpoenaed for the apparent leak of information from Kane’s grand jury.

We’re still waiting to find out if the Montgomery County District Attorney will accept or reject the grand jury’s recommendation. But there’s an obvious absurdity in this scandal, now that we’ve reached the point that a leak about a leak is being investigated.

How did we get to this point, anyway? The answer may be easier to find if we understand Pennsylvania’s grand jury process. We talked with several experts who were unconnected to the Kane case, and would not comment specifically on it — choosing instead to describe the grand jury process in general terms. (We also relied on the Pennsylvania code concerning grand juries.)

• What is a grand jury? Why is it empaneled?

David Mueller, an attorney for Colgan and Associates law firm in York, explained there are actually two kinds of grand juries under state law. (The firm has a useful primer on grand juries on its website.) The most common is an “investigating” grand jury, which examines evidence, hears from witnesses, and ultimately recommends to a prosecutor whether or not charges should be filed; the prosecutor has the final decision.

A second, very rare form of grand jury is an “indicting” grand jury, which can bring charges directly — but those are only empaneled  when witness intimidation is thought to have occurred, or seems likely to occur.

For our purposes, we’re discussing the first kind of grand jury. Once summoned, the grand jury is made up of not less than seven members and can have no more than 15 alternates.

 • Why can’t prosecutors just bring charges on their own? That’s their job, right?

 In most cases, criminal charges are brought directly by police, a district attorney’s office or the attorney general’s office. On occasion, though, prosecutors enlist the grand juries. Why?

Dr. Donald Tibbs, a Drexel law professor, said the grand jury is supposed to act as a check on the prosecutor. “The purpose of the grand jury is to be a check on state action,” Tibbs said. “Prosecutors can bring charges, but that power would be subject to abuse without the grand jury.”

He added: “I would rather the state go through a group of individuals who are representative of the community rather than have a single individual say ‘charge them, charge them, charge them.'”

Perhaps, but a prosecutor’s power over a grand jury can make that check seem like the barest of speed bumps. The prosecutor selects the witnesses a grand jury will hear and the evidence that will be seen. There is no defense attorney present to make a counter case. And unlike at trial, grand juries don’t need to be convinced “beyond a reasonable doubt” to recommend charges — they only have to believe the evidence makes it more likely than not that the charged person committed a crime.

Mueller offers two reasons a prosecutor might rely on a grand jury. The first is the grand jury’s investigative powers — it can subpoena witnesses, who are then generally compelled to testify. Sometimes, that allows grand juries to collect information that police didn’t during the course of an investigation.

The other reason for a grand jury? Because a prosecutor wants support for his or her decision to charge or not to charge.

• Why the secrecy?

A grand jury can be a claustrophobic institution. Besides other members, these people can be present during a proceeding: The prosecuting attorney, the witnesses, and the judge. That’s it — unless the judge decides other personnel are needed, like security officers. That widens the circle somewhat, but not by much.

The reason for the secrecy isn’t surprising: It’s there to protect the investigation as it’s under way, and make it more difficult to be tampered with. More than that, though, grand juries seem to be secret because, well, grand juries have always been secret.

“Grand juries have been secretive for as long as they’ve been around,” Tibbs said.

• Well, OK, but why is the secrecy perpetual?

If public reports are correct, Kane is accused of leaking information from a 2009 grand jury that investigated then-Philadelphia NAACP President Jerry Mondesire. That investigation produced no charges, though Mondesire later was suspended from his position in a dispute over his handling of the organization’s finances.

This question stumped the experts a bit.

“I don’t know if I know the policy reasons behind that, quite honestly,” Mueller said, before noting that if a grand jury doesn’t result in charges, the secrecy works to protect the reputation of a person who was never officially accused of lawbreaking. 

“I think the idea is that normally, a statute of limitations wouldn’t be needed,” said Tibbs. Most of the time, an indictment will bring the grand jury’s work to the public. The secrecy protects the possible defendant, he agreed, but also investigators: If there are no charges, the silence surrounding the grand jury can make it possible for investigators to revisit an issue months or years later with additional evidence, with little worry that the case had been tampered with in the meantime.

 • Does everybody have to obey the secrecy?

No. If you’re not sworn to secrecy during the empaneling process, you commit no legal wrong by describing knowledge of it. “If you’re not sworn in as part of the process, you’re not sworn to keep it secret,” Tibbs said. “I think that’s probably more of an ethical issue.”

It may also be a critical issue in Kane’s defense. She wasn’t Attorney General in 2009, and apparently played no part in the grand jury investigation of Mondesire. As an officer of the court who was privy to information only because of an after-the-fact job change, is she required to keep grand jury information secret?  That’s may be the most important question for Kane’s political future.

 • Does anybody actually obey the secrecy requirements?

Again, we’re at the stage that a leak about a leak is being investigated. Regular news readers routinely see stories that describe grand jury proceedings more closely than is possible if everybody were obeying secrecy requirements. Tibbs, though, said such scrutiny is generally reserved for high-profile cases — and such breaches of the law are relatively rare.

“Those small incidents are more highly irregular than normative,” he said.

Be that as it may, the immediate political future of Pennsylvania hinges on the answers to these questions. For Kathleen Kane, the biggest secret left is what happens next.

Follow @JoelMMathis on Twitter.