Attorneys representing witnesses who appear before investigative grand juries are not absolutely barred from discussing anything that occurred during the proceedings, the Pennsylvania Supreme Court has ruled, providing some clarity for a secretive system that some lawyers have said is increasingly causing confusion.
A split Supreme Court ruled Tuesday morning in In re Fortieth Statewide Investigating Grand Jury that a supervising grand jury judge’s holding was overly broad, and that entry-of-appearance forms do not bar attorneys from discussing anything learned during the proceedings.
The ruling comes as part of a grand jury investigation that rocked the state and much of the country when it found that thousands of children had been sexually abused over decades by more than 300 Catholic priests within Pennsylvania.
The Diocese of Harrisburg and the Diocese of Greensburg, which were two of six diocese subject to that investigation, contended the supervising judge’s broad interpretation of the entry-of-appearance forms went against the Grand Jury Act. The dioceses also contended the ruling was impractical, since it would bar attorneys from disclosing things their clients would otherwise be allowed to discuss, and could impair their ability to represent their clients.
Chief Justice Thomas G. Saylor, who wrote the court’s 25-page opinion, agreed with much of the dioceses’ arguments.
“We do not read Section 4549(b) as preventing an attorney—with the explicit, knowing, voluntary, and informed consent of a client-witness—from disclosing the content of the client’s own testimony, when the client is otherwise free to do so of his or her own accord,” Saylor said.
The opinion ordered that the entry-of-appearance forms be modified to narrow the secrecy rules accordingly to the high court’s holding.
Kleinbard attorney Matthew Haverstick, who is representing the dioceses, said in an emailed statement, “We’re pleased that the Supreme Court accepted our central argument that the non-disclosure language is overbroad.”
The Supreme Court’s decision comes about a month before it is set to hear arguments on another issue involving the same investigating grand jury and one that attorneys with clients appearing before grand juries have also struggled with. That issue involves what level of due process rights should be afforded to those who are named in the reports as perpetrators, but are not indicted. For example, the recently released report found that the statute of limitations prevented prosecutors from bringing charges against the abusive priests.
In late July, the justices had ordered that grand jury report to be redacted and released, saying that, although the report could be released with the names of specific priests and church officials redacted, the challengers raised significant constitutional due process issues that the court needs to address.
“The right of citizens to security in their reputations is not some lesser-order precept. Rather, in Pennsylvania, it is a fundamental constitutional entitlement,” Saylor wrote in that opinion. “The right is established in the opening passage of the Pennsylvania Constitution’s Declaration of Rights—under the title ‘Inherent rights of mankind’—and is couched as an ‘indefeasible’ guarantee.”
Despite being redacted when it was released, the report sent shock waves throughout the country and elicited a response from the pope.
The Supreme Court’s ruling Tuesday also endorsed the use of agreements that would allow attorneys with clients appearing before a grand jury to share information with each other.
The judge who oversaw the grand jury proceedings had said there was no need for common interest or joint defense agreements because the proceedings were investigative, rather than criminal.
Saylor, however, noted in a footnote that, although the proceedings were not technically criminal, they could often lead to criminal charges, and those agreements, he said, should be allowed.
“We distance ourselves from the supervising judge’s view,” Saylor said. “As the attorney general concedes, federal courts recognize that the common interest and joint defense privileges extend into the grand jury setting, and we have no reason to conclude those privileges should be denied to those involved with grand jury proceedings in Pennsylvania.”
A spokesman for the state Attorney General’s Office declined to comment.