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In re Grand Jury Investigation by Schaller

Court of Appeals of Connecticut

January 2, 1990


Argued Sept. 19, 1989.

Page 1256

Henri Alexandre, Asst. Atty. Gen., for petitioner.

Hugh F. Keefe, with whom, on the brief, was Michael J. McClary, New Haven, for Thomas R. Brown.


DUPONT, Chief Judge.

The sole issue of this petition for review is whether the petitioner is entitled to the relief sought, namely, the release of the finding, transcripts and record of Judicial Inquiry No. 85-01, as filed with the investigatory grand jury panel that ordered the inquiry. Pursuant to General Statutes § 54-47g(a), we grant review [1] of the action of the grand jury panel [2] [20 Conn.App. 448] denying the petitioner access to the finding, record, and transcripts. We conclude, after review, that the matter must be remanded to the grand jury panel for further proceedings.

Frank D'Amico, the petitioner, [3] is an inspector in the division of criminal justice and was assigned to assist the grand juror with the judicial inquiry that is the subject of this appeal. The petitioner was ordered to keep the inquiry confidential. At the conclusion of the inquiry, he applied for an arrest warrant for Thomas R. Brown. The petitioner sought the warrant, based in substantial part, on the testimony and exhibits introduced at the judicial inquiry. The warrant was issued and Brown was arrested, but the charges against him were dismissed by a trial court on January 24, 1989.

Subsequently, on April 27, 1989, Brown filed a suit in the United States District Court of Connecticut against D'Amico and other unnamed defendants in the office of the chief state's attorney. This suit, seeking compensatory and punitive damages totalling ten million dollars, was brought pursuant to 42 U.S.C. § 1983. It alleges that the petitioner was acting under the color of state law and in both his official and individual capacities when he deprived Brown of certain constitutional rights. The theme of the suit is that D'Amico and others employed by the Connecticut state police and the office of the Connecticut chief state's attorney obtained an arrest warrant for Brown based on perjury and a fabrication

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of physical evidence. Brown alleges that the warrant application and its supporting affidavit used a selective and "tailored" version of available testimony [20 Conn.App. 449] and other evidence, thereby misleading the judicial authority that signed the affidavit into issuing an arrest warrant without probable cause.

On June 12, 1989, the petitioner applied to the grand jury panel for release of the transcripts of the inquiry, claiming that he could not otherwise defend himself against Brown's lawsuit. He claims that he cannot answer motions for disclosure and production filed in that lawsuit because of his oath of secrecy and lack of access to the records. The panel, without hearing, denied the application by letter. The letter, signed by the secretary to the panel, contained one sentence and gave no reason for the denial. Both the attorney general and Brown urge this court to release the transcripts. For the purposes of this petition for review, they are basically in accord as evidenced by their briefs and oral arguments.

After the attorney general filed the petition for review on behalf of D'Amico, this court assigned the matter for oral argument and directed that briefs be filed by the attorney general, the chief state's attorney and counsel for Brown. The parties were directed to address the following issues: (1) which of several amendments to General Statutes § 54-47 governs the petition; (2) the standard for release of grand jury transcripts; and (3), in the event of release, the conditions of release, if any, including the persons or entities to whom the transcripts should be given. [4]

[20 Conn.App. 450] Public Acts 1985, No. 85-611, now codified as General Statutes §§ 54-47a through 54-47h, governs this case. [5] That amendment became effective on October 1, 1985. The application for the judicial inquiry here was made and authorized in October, 1985. Thus, the 1985 version of the statute, as amended by Public Acts 1985, No. 85-611, applies to the question of whether the finding and record of the investigation shall be disclosed. See In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 540 A.2d 49 (1988). The finding and record include the report of the grand juror, the transcript and documentation submitted to the grand juror. Id., at 107, 540 A.2d 49.

The standard for release is embodied in the language of Public Acts 1985, No. 85-611, § 6. "The finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest." See General Statutes § 54-47g(a). The standard for release prior to the 1985 amendment was "a particularized need." [6] In re Grand Jury Investigation by Judge John M. Alexander, supra.

The Alexander decision left open the question of whether there is any substantive difference between the pre-1985 standard of particularized need and the 1985 legislative standard of "public interest" now codified in General Statutes § 54-47g(a). Id., at 108 n. 4, 540 A.2d 49. The initial determination of that question should be left to [20 Conn.App. 451] the grand jury panel since it is to that body that the legislature has entrusted the duty of determining

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when disclosure is in the public interest. [7] That panel is in a better position to determine what the public interest requires in this case because of its prior familiarity with the origin and scope of the judicial inquiry ordered by it. See In re Grand Jury ...

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