Pervasive Fifth Amendment violations support dismissal of grand jury indictment

James L. Eisenbrandt and Christina M. DiGirolamo, won in State v. Turner, No. 102,478 (Kan. Sept. 5, 2014), affirming Judge Lively's dismissal of a Wyandotte County indictment and prosecution for theft and presenting false claims stemming from a citizen-initiated grand jury proceeding.  Judge Lively dismissed the indictment after finding that the prosecutor improperly and repeatedly questioned Mr. Turner in the face of his repeated exercise of his privilege against self-incrimination, that the investigator improperly commented about Mr. Turner's exercise of his right, and that the investigator commented on an unrelated criminal matter.  The KSC agreed with Judge Lively.  The appellate case includes a primer on the constitutional privilege against self-incrimination.  It also includes a lot of information about grand jury practice (and contrasting inquisition practice). 

Granted, a grand jury does not determine the guilt or innocence of a defendant, like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding juror, in the jury's presence, to the court and shall be filed and remain as records of the court."). Moreover, the need to protect an accused individual's constitutional rights before factfinders who are not trained in the law and consequently do not know and understand those constitutional rights is precisely the same with a grand jury as it is with a petit jury.

The KSC concluded that the prosecutor's pervasive and repeated questioning in the face of invocation of the privilege and express commentary on that exercise violated the Fifth Amendment, even in the light of admonition from the district court.  The KSC concluded that targets of grand jury proceedings are entitled to due process and that introduction of extraneous matters violates due process:

[O]ur statutes contemplate that due process mandates that a Kansas grand jury should only issue an indictment based on legal evidence, rather than suspicion or conjecture.

As a result, the KSC agreed that dismissal of the indictment was an appropriate disposition in this case.  Importantly, the KSC held that the state has the burden of proving any constitutional grand jury defect harmless.  When applying a proper harmless error burden, the KSC affirmed the district court:

In sum, the only evidence supporting the indictment was Turner's unitemized bills, testimony from certain individuals who were unaware of the specific nature of work Turner did for BPU, and witnesses who refused to breach the attorney/client privilege in order to answer the grand jury's questions about what work was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof testimony does not cure or trump the egregious errors visited upon these proceedings that polluted the process and denied fundamental fairness.

This may be more important in future Kansas cases with a more robust statutory grand jury procedure in use in some counties.