Sunday, June 14, 2009

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where
one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

1 comment:

Donald Thompson said...

What's also not obvious - or maybe it is - is why the lower court refused to grant defendant's motion to dismiss on this ground. This same lower court has some history of failing to appreciate defects in grand jury procedures, illustrated by People v. Sayavong, for example, cited in this case.