a second arena, at trial. In a case like Serubo, the abuse would go virtually unchecked, for it would have affected the grand jury process at its core; that is, the jurors themselves not merely the evidence before them would have been tainted.
By alleging that the Government's summaries in the instant case were incomplete and at times inaccurate, the defendant asserts that the indicting grand jury was biased by the prosecutor's presentation of evidence. The court of appeals in Serubo set out a standard by which to measure prosecutorial misconduct. It held that "if there is evidence that the challenged activity was something other than an isolated incident unmotivated by sinister ends, or that the type of misconduct challenged has become "entrenched and flagrant' in the Circuit," then dismissal would be appropriate. 604 F.2d at 817, quoting United States v. Birdman, 602 F.2d 547, 559 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980).
Consistent with this focus on institutional concerns, the court held that actual prejudice to the defendant need not be shown in order for the court to exercise its supervisory powers. Serubo, 604 F.2d at 817.
The defendant raises his most compelling argument in his challenge to the summarization procedures used by the prosecutor. The Third Circuit has not had to address the issue of the use of summaries in grand jury proceedings. In Wander the transcripts from the first grand jury were read to the second grand jury, which returned the indictment. In Serubo, the court of appeals could not determine from the record whether the transcripts of testimony before the first grand jury were transferred to or considered by the second grand jury. The court did not intimate whether it would view differently a presentation of summaries as distinct from transmittal in some form of the whole record.
The use of summaries has been accepted by some courts, rejected by others.
The arguments against the use of summaries are powerful. In its origin, the grand jury was designed to serve as a buffer between an accused and the government by preventing an accused from being forced to trial unless a jury of his or her peers found probable cause to indict. Even though this concern for protecting a putative defendant still obtains, the fact that grand jury hearings are ex parte and secret creates possibilities for unchecked and uncheckable prosecutorial abuse. It is self-evident that governmental investigative forces engage in necessary work to uncover and bring to trial persons alleged to have engaged in criminal misconduct. It should be equally self-evident that the government that justly administers its criminal law system does so without abusing its prerogatives. Indeed this is not simply a reformulation of the principle that the means are as important as the end. Rather, it is a recognition that the end, the fair administration of criminal justice, requires a just means. In this regard, the use of summaries of testimony in grand jury proceedings is inherently suspect. Stated another way, a defendant's motion for disclosure based on a claim that summaries were used, states a "particularized need," and justifies disclosure should the equities so permit.
It should be noted that in this case the need for secrecy is greatly reduced, since the grand jury has completed its work and returned an indictment.
For purposes of this analysis, I am defining "non-hearsay evidence" to include the reading of the transcripts in toto. Thus, under the three-prong Estepa test as set forth in Wander, in this case non-hearsay evidence (transcripts) is readily available. Assuming the Government's strongest case, that the summaries were identified as such and the grand jury was not under any misapprehension as to the value of the material it was hearing, there remains the requirement under Estepa that there be a high probability that the grand jury would not have indicted had non-hearsay evidence been offered. Whether under Estepa the indictment should be dismissed can only be determined by examining the summaries themselves to assess their accuracy and fairness.
The question then is to whom will disclosure be made: to the defendant or to the court for in camera review. Since institutional concerns are at issue, the motive of the prosecutor in using summaries is relevant. The prosecutor's burden is to demonstrate good faith in their use. This can be shown by the existence of a very lengthy record, portions of which are not relevant in the prosecutor's estimation to a finding of probable cause. It should be clear, however, that relevance alone as a justification cannot be sufficient to demonstrate good faith, for it leaves in the hands of the prosecutor an editorial decision of grave importance. Rather, relevance can be argued as one of several factors in a carefully thought-out decision not to transmit the full transcript to the grand jury. Further, that the prosecutor provided the grand jury with opportunities for hearing or viewing the entire record, or portions in their entirety, would also show good faith.
In sum, there is a line to be drawn between mere administrative convenience and a carefully measured decision of expediency, with fall-back use of the transcripts possible through meaningful opportunity for grand jury review of the record.
If the prosecutor has shown good faith, in camera review is proper as a form of disclosure less destructive of the policy concerns behind grand jury secrecy than disclosure to the defendant. If, however, the prosecutor fails to demonstrate good faith, or the defendant rebuts the showing, disclosure will be made to the defendant.
At a hearing on July 18, 1980 on defendant's motions, the Government stated that the summaries presented to the second grand jury consisted of several kinds of evidence including some testimony that had been presented to the first grand jury, and investigator's interviews with witnesses.
As noted earlier, the second grand jury was empanelled June 29, 1979. From that date until sometime in September, 1979, it heard, in the prosecutor's words, "some bits and pieces of testimony." July 18, 1980 hearing. The summaries were presented over three or four sessions within a one-month period, until October 5, 1979 when the grand jury handed down the original indictment. At the July 18 hearing the prosecutor reported that to the best of his recollection a total of approximately two days was spent in presenting summaries, on one occasion for a half-day, on another for a full day, and on a third, summaries given by two agents and the prosecutor took up a half-day's sitting.
When asked why he did not present live witnesses, the prosecutor answered that it was "a matter of economy." He explained that to bring in live witnesses might have taken six months, whereas an agent could summarize the case in a matter of a few sessions within one month.
That economy is deemed a virtue in American life as well as jurisprudence is beyond cavil. Fashioning shortcuts to criminal prosecution, however, is another matter entirely, and one that mandates careful scrutiny. The prosecutor stated at the July 18 hearing that the person presenting summaries to the grand jury in some instances offered to read the transcript in toto, but the grand jury expressed a preference for summaries. In some instances transcripts were apparently left with the grand jury to review if it so chose. Under the standard formulated in section III, supra, such an offer did not provide sufficient "fall-back" use of non-hearsay material (transcripts) with meaningful opportunity for grand jury review of all the material. In sum, the prosecutor has not shown more than a concern for administrative convenience as a basis for using summaries. I therefore order disclosure of the transcripts of the sessions of the second grand jury to be made to the defendant's attorney.
Defendant's motion to dismiss the superseding indictment is denied.