By Peter F. Neronha
The Rhode Island Supreme Court recently held that Superior Court Presiding Justice Alice B. Gibney was right in deciding that the 38 Studios grand jury material could not be disclosed. The court rejected arguments that in the absence of an indictment, grand jury information could nevertheless be disclosed where doing so was “in the public interest.” This outcome came as no surprise to those familiar with the law governing grand jury secrecy as it exists today.
The 38 Studios debacle has long frustrated many Rhode Islanders, and understandably so. When Justice Gibney issued her decision in 2017, the Providence Journal Editorial Board (“Hiding the truth on 38 Studios,” May 24, 2017) said that she had decided that the “protections afforded to the innocent by grand jury secrecy take precedence over the public right to know” and characterized her ruling as “a roadblock to full disclosure.” The board took investigators to task for failing to disclose what had occurred before the grand jury: “Here’s what they offered the public by way of details: Nothing.”
Such frustration, even when current law clearly allows for no alternative, is understandable. A bad 38 Studios decision by legislative leaders, made in secret, the circumstances of which will now remain secret, makes for a toxic stew. No lessons can be learned from what happened in 38 Studios, so that it won’t happen again. Frustration breeds cynicism, and ultimately, disillusionment.
But there’s a fix. A grand jury report law. What’s that? A law that would allow a grand jury, with court oversight, to issue a report with findings and recommendations even when it decides no one should be charged with a crime. Why would this be useful? Because there are times when an explanation of what the grand jury learned during the course of its investigation would significantly advance the public’s interest. Like whether better training might have prevented a “blue-on-blue” or other police officer-involved shooting. Or whether governmental decision-making was motivated by the public’s interest, or something else. It’s a tool that should be used sparingly. But it’s a tool that should be in the toolbox.
Rhode Island doesn’t have such a law right now. But it’s something we could have, were the legislature to take up, debate, and pass my bill authorizing one. It’s not a novel or dangerous concept. At least 18 states, including Colorado, New York, Oklahoma, Pennsylvania and Washington, have laws which allow grand juries to issue reports even when no indictment is returned. These states recognize that a grand jury report can advance the public interest by evaluating conduct which has caused public harm and make recommendations so that it doesn’t happen again. For example, the attorney general in Pennsylvania relied on that state’s grand jury report law to expose wide-ranging sexual abuse of children by clergy.
I have been a state or federal prosecutor for nearly 25 years. I understand the great power that prosecutors have before the grand jury and know that grand jury secrecy is essential to protect the integrity of criminal investigations and the due process rights of the accused. That’s why our bill, patterned after grand jury report laws in other states, builds in strong due process protections for those who might be identified in the report, including a right of appeal to the Supreme Court.
We can choose a new path, one which brings more transparency to governmental decision-making and the exercise of power. Or we can continue down the long, historic path of current grand jury practice. But let’s understand and accept what that latter choice means: that in every case where the grand jury does not return an indictment, the attorney general won’t be able to say anything about what the grand jury investigation revealed, or suggest alternative, beneficial approaches for the future. It’s not my call. But I know what I’d choose.
Peter F. Neronha is Rhode Island’s attorney general.