On appeal from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J. Oliphant, J. (dissenting).
The matters involved in this appeal are so vital to the sound administration of justice, and some of them are so widely misapprehended that we deem it essential to present the facts and our views of the pertinent principles of law in considerable detail.
An attempted jail break by one John Caruso, an inmate of the Camden County jail and a paroled murderer, precipitated a joint inquiry by the appellant as sheriff of Camden County and the county prosecutor into conditions at the jail. The investigation disclosed such serious misconduct in the administration of the jail that the evidence gathered was submitted to the grand jury, which in turn examined 59 witnesses, including the appellant, at 12 special sessions and took 1,500 pages of testimony. On October 11, 1951, as a result of the grand jury investigation indictments for misconduct in office were returned against the undersheriff and three jail guards, and indictments for conspiracy and false swearing were found against the undersheriff, two jail guards and one Joseph Martino, alias Eddie O'Keefe, who, although not a public official or employee, seems to have had the run of the jail almost continuously day and night, even eating and sleeping there.
At the same time the grand jury also presented to the assignment judge of Camden County a lengthy "report" on its investigation of the irregularities at the jail. The document stated that the jury was unanimously convinced that laxity in the Camden County jail had reached deplorable proportions
and that indifference to responsibility "from personnel to the top elective office" helped directly in the existence of a "pay-or-else" system, "which was a public safety hazard, a destroyer of the morale of the majority of the prisoners and a mockery of restrictions which should be placed on those who violate our laws." The grand jury enumerated the "irregularities" that existed in the county jail under the following heads:
"'Favored' Prisoners Taken Out -- Under the 'pay-or-else' system, favored prisoners were taken out of jail and escorted to local restaurants or nearby taprooms. Here they were permitted their choice of foods or liquors. On one occasion, one of these men was returned so drunk that another inmate undressed him and put him in the sick bay. At another time, a prisoner was left unattended for an hour in the Gloucester taproom; still another was taken to a visit to his home with no obvious reason for doing so.
Flagrant Disregard to Scheduled Visiting Hours -- By admission of jail personnel (night shift) little, if any, attention was paid to the ruling on visiting hours -- which are 1:00 P.M. to 3:00 P.M. on Wednesday afternoons. Laxity of directive officers and indifference of most personnel permitted the 'favored' to come and go at will. Visitors often remained until early hours of the morning.
Contact Visits -- Because of the same marked shifting of responsibility and indifference, female visitors were permitted contact visits with prisoners with impromptu quarters (including couch) in the guards' dining room. Couples were permitted to be alone for indefinite periods.
Unofficial 'Assistant' Undersheriff -- The constant presence of Joseph Martino -- almost daily and nightly with no reason yet provided for being there -- has been definitely established by this Grand Jury. This irregularity has been branded in the Department of Institutions and Agencies' report as 'one of the more flagrant abuses and violations of good jail practice.' Martino, as field representative for the 'system,' carried keys, ran errands, performed menial tasks as well as directive duties and with obvious permission of the Undersheriff, set himself up as an overseer, and slept and ate in the jail.
Steak and Lobster -- Food to order including steaks, chicken, spaghetti, lobster, submarine sandwiches and imported him were among those delicacies brought to prisoners who had the price to pay several times their actual worth. On other occasions special foods were brought by visitors for prisoners and these were prepared in the prison kitchen, to be enjoyed as late-hour 'snacks' for the privileged.
Liberal Spending By Prisoners -- The sum of $250.00 deposited for one prisoner was all withdrawn by him in less than six weeks' time with as much as $50.00 in a single day received by him. Other prisoners who had accounts were permitted the same privilege. This
spending by those who had it was directly responsible for the 'pay-or-else' system, the money games, professional card cutters and almost all special favors.
Medical Program -- The medical program was lax -- and dangerous while a physician is available for prisoners who are ill, he does not visit the jail with sufficient regularity, unless summoned. As a result, prisoners were admitted to the sick bay at the discretion of prison personnel and attended by an inmate-orderly who had permission to take temperatures and dispense medicines and bromides in accordance with the doctor's prescriptions. There was no way to see that correct dispensing was followed out and this permitted the handling of bromides, etc., by irresponsible persons.
Visitors' Book Ignored -- The system included no time nor interest in the Visitors' Book. Insistence that this proper practice be followed, with signature of every visitor, along with date and time of visit would have interfered with the 'system.'
Abuse of Privilege -- The special privilege irregularities as they existed in Camden County Jail, call for strong censure from this jury. It was vicious and shocking. Penal institutions are reserved for all those found guilty of punishable forms of law violation. Restrictive privilege should be applicable to all as a part of the punishment meted out by the decisions of the juries and courts of our land. The existence of the 'pay-or-else' system made this a mockery. Prisoners convicted of minor crimes, if they had no money, were compelled to watch more hardened criminals -- one a paroled murderer -- enjoy relative freedom and comforts because they could afford to pay for these."
Having listed the irregularities, of which the grand jury said it possessed "overwhelming proof," it then proceeded to "determine who was responsible" therefor:
"The Sheriff's disinterest and lack of knowledge of his job, based upon his own admitted testimony before this Grand Jury, rates the strongest kind of moral indictment. Moral only because the laws of the State fail to define clearly his chargeable responsibilities and fix legal penalties upon failure of such elected officials who fail to complete these properly.
The Sheriff, appearing twice before this Grand Jury, admitted that if the irregularities existed in his department they were poor practices -- that he had been up in the jail at nights 'maybe two, three, four or five times' * * * that he had seen Martino but didn't know who he was (Undersheriff Lombardo and Martino testified that he did know) * * * that he had no idea that such deplorable conditions existed * * * that he had left the jail to his subordinates.
While the Sheriff's testimony convinced the Jury of his general lack of knowledge of what was going on, the Martino angle as far as
the Sheriff was concerned is a clear-cut example of the extent of his lack of interest. If he did not know that Martino was a constant visitor even casual attention to his job would have revealed this.
This Jury remains convinced that the Sheriff was a poor witness whose testimony was evasive and lacking in cooperation which an investigating Grand Jury should expect from a public servant who was properly discharging his duties. It is further the final opinion of the Grand Jury that until the commencement of this investigation at least, he had failed miserably in his public trust.
Undersheriff Lombardo, who was appointed by the Sheriff to be in charge of the jail, appeared before this Jury three times; twice at his own request to change damaging testimony which he had made under oath previously. He, in turn, admitted leaving much of the responsibility to his subordinates and Martino, and he admitted some of the irregularities. His resignation, between appearances before the Grand Jury, is significant.
Martino's testimony denying any wrong-doing in the 'pay-or-else' system was broken down by the testimony of too many witnesses to be acceptable to the jurors who rate him, with the Undersheriff, as prime instigators.
The Warden who stated that he rarely visited the jail after his hours -- from 9:00 A.M. to 4:00 P.M. -- said that he was in charge but that when the Undersheriff was on the scene, he became the person in authority.
Jail personnel were apathetic and acceptant of the condition, but a penchant for petty chiseling by several of them, at the expense of prisoners, made them willing partners in the 'system.'
How much more money than that which could be placed by evidence exchanged hands or who pocketed it, this Jury cannot state, and it is not within its premise to speculate. Enough to say, that the system which thrived at Camden County Jail, through laxity at the top, and in the middle, caused acceptance at the lower levels, and must have yielded a relatively sizeable return for those involved."
The grand jury's report made a series of specific recommendations for the future conduct of the jail in the following terms:
"That Legislation be enacted giving the State Department of Institutions and Agencies more powers to prescribe basic rules and regulations to be strictly adhered to in the administration of our County Jails. This Legislation should also provide fines or imprisonments for elected or appointed office-holders or any member of jail personnel, found guilty of violations thereof.
That regulations, which would definitely fix responsibilities of the offices of the Sheriff, Undersheriff, Wardens and all jail personnel, be immediately prepared and set forth, so that Grand Juries of the future will be spared the time-wasting and 'buck-passing' to which
this Jury has been subjected by the above-mentioned officials and personnel.
That prisoners not be permitted to have cash in their possession nor the right to draw from a deposited account. The Jury can offer no better plan than that recommended by the State Department of Institutions and Agencies, to the effect that prisoner-accounts be maintained in fiscal records of the jail, and permitting these prisoners to make credit withdrawals for the purchase of personal essentials available at the jail commissary.
That such merchandise be dispensed from the commissary at proper prices and normal profits ensuing, be used for recreational or morale-building programs for prisoners.
That regulations be immediately set up, establishing definite and limited hours of visitation and that these be adhered to, by the requirement that every visit by everyone be signed in the Visitors' book with date and exact time of arrival and departure and the prisoner visited. Visits at other hours, in times of emergency, might be made but only after someone vested and charged with the responsibility signs official approval.
That all visitors be limited to screen visits, outside the jail blocks, through the screens already built in the Camden Jail for this purpose. Contact visits such as these common in the Camden County Jail, make possible the exchange of weapons, drugs, poisons, and other commodities and so create a dangerous public menace.
That the jail physician visit the jail at least once daily and that prisoners be admitted to the sick bay only upon his signed order and release when he deems it proper. The dangerous custom of permitting inmate-orderlies to serve as male nurses and to handle any medicine, or have access to the medicine chest should not ever be permitted. A member of the Jail personnel should be made responsible for any non-professional assistance required.
That all special privileges be eliminated except in cases of rare emergency, and then only when a person, chargeable for the responsibility, officially approves such action.
That such 'irregularities' as: the removal of prisoners for special visits outside of the jail, contact visits with prisoners, money card games, presence of unauthorized personnel, admission to the jail of uninspected food or packages from outside be permanently eliminated.
That all such acts which are labeled as 'improper and poor practice' by the State Department as well as recommendations considered proper practice, be listed and posted currently with the Sheriff directly responsible.
That the Sheriff, Undersheriff in charge of the jail, Wardens and personnel be informed of their clearly defined responsibilities and be subjected to impeachment, dismissal, fines or imprisonment in accordance with what this Jury recommends as punishment for laxity, indifference, or any proved violation.
That vigorous men and women be employed in the County Jails and that, upon reaching retirement age, or becoming physically impaired, they be promptly retired.
That responsibility for the operation of the institution should come under the Warden and that he be trained in the field in which he operates, in accordance with laws and regulations.
In summing up the investigation, the Jury is aware, and the public should be made aware, that it is an amazing fact that no wholesale jailbreak was completed, with conditions as they were and laxity so apparent. A real desperado of the Dillinger or Karpis type would have had no difficulty in smuggling in a young arsenal and fighting his way out, possibly killing, or seriously injuring, jail personnel as well as any other person, or persons, who got in his way."
On October 23, 1951, the sheriff moved in the Superior Court to have what he termed the defamatory portions of the grand jury's presentment expunged from the files, these parts of the presentment being indicated in his motion papers in italics:
"Contrary to customary Grand Jury procedure, those viewed as defendants in light of the serious charges involving the Department for which they were responsible were also called to testify. These included the Sheriff, Undersheriff, Warden and jail personnel. These latter witnesses were not, on the whole, cooperative. They were reluctant to give straight-forward stories and were often evasive and defiant. Motivated by fear of losing official prestige, reputation, jobs, even reprisal, their testimony under oath ranged from evasive answers to, what we believe to be, false swearing. Upon such evidence, this Jury is unanimously convinced that laxity in the Camden County Jail reached deplorable proportions and, furthermore, that indifferent [indifference] to responsibility, from personnel to the top elective office helped directly in the existence of a ' pay-or-else' system which was a public safety hazard, a destroyer of the morale of the majority of the prisoners, and a mockery of the restrictions which should be placed upon those who violate our laws. * * *
The Sheriff's disinterest and lack of knowledge of his job, based upon his own admitted testimony before this Grand Jury, rates the strongest kind of moral indictment. Moral only because the laws of the State fail to define clearly his chargeable responsibilities and fix legal penalties upon failure of such elected officials who fail to complete these properly.
While the Sheriff's testimony convinced the Jury of his general lack of knowledge of what was going on, the Martino-angle as far as the Sheriff was concerned is a clearcut example of the extent of his lack of interest. If he did not know that Martino was a constant visitor even casual attention to the job would have revealed this. This Jury remains convinced that the Sheriff was a poor witness whose testimony was evasive and lacking in cooperation which an investigating Grand Jury should expect from a public servant who
was properly discharging his duties. It is further the final opinion of the Grand Jury that until the commencement of this investigation at least, he had failed miserably in his public trust.
How much more money than that which could be placed by evidence exchanged hands or who pocketed it, this Jury cannot state, and it is not within its premise to speculate. Enough to say, that the system which thrived at the Camden County Jail, through laxity at the top, and in the middle, caused acceptance at the lower levels, and must have yielded a relatively sizeable return for those involved."
At the outset of the oral argument before the assignment judge the sheriff moved to suppress the portion of the State's brief that quoted parts of the grand jury minutes, and the court granted his motion. At the conclusion of the oral argument the assignment judge dismissed the motion to expunge the presentment, saying that he found "nothing therein that was not within the province of the grand jury to report." The sheriff appealed to the Appellate Division of the Superior Court, and we have certified the matter on our own motion.
On the appeal, with the permission of the assignment judge, the State printed as part of its appendix 12 pages of the testimony of the sheriff before the grand jury, presumably the same testimony that the trial court had declined to consider on the motion below. The appellant urges that we should not consider this testimony for the reason that it was not before the trial court. In the circumstances we agree with this and we accordingly have not used this testimony in deciding this appeal.
On the oral argument it developed that, although the grand jury spent months on the investigation into conditions at the county jail, it was not at any time specifically charged by the assignment judge, or any other judge at his direction, with reference to the matter. The assignment judge is in effect a successor in each county of the justice of the former Supreme Court assigned to the county. The former Supreme Court justices were in direct charge of all of the law courts in the counties assigned to them. Originally they tried all the cases in the Supreme Court on circuit and in the Court
of Oyer and Terminer. As judicial business increased the trial of cases in the Supreme Court at the circuit was referred to the circuit judges and the trial of cases in the Court of Oyer and Terminer was delegated to the common pleas judges, although it was not unusual well into the present century for a Supreme Court justice to try cases at the circuit and they continued regularly to hear murder cases in the Court of Oyer and Terminer for a much longer period until the growing pressure of appellate work forced them to relinquish this function too. But at no time, even though in the first quarter of the Twentieth Century appellate work was falling in arrears, did the justices of the former Supreme Court surrender their supervisory and administrative duties in the counties in their judicial districts.
These duties include the drawing of jury lists, the selection of grand juries, and the charging of the grand jury. Three times a year in each county the Supreme Court justice attended at the opening of the term when the grand jury was selected and charged it concerning its grave responsibilities in the presence of the bench and bar of the county. If matters developed during a term that required further consideration, he returned to give the grand jury additional instructions.
Without in anywise minimizing the importance of any phase of the work of the Supreme Court justice in the orderly administration of justice, it may be said that from time immemorial the charge of the justice presiding in the county on the occasion of the organization of the grand jury and his subsequent charges on such special matters as may come to his attention during the term of service of a grand jury have had a significance that cannot be overstated if criminal justice is to be done in a county and the public welfare is to be safeguarded. This was universally recognized not only by the bench and bar but by the public. Rule A -8 was designed to charge the assignment judge in each county with these weighty responsibilities:
"He shall be responsible for the duties heretofore performed by the Supreme Court Justice in the county with respect to jury panels, charging the Grand Jury, the assignment of cases in the Superior Court and the County Court in the county, and generally for the orderly administration of civil and criminal justice in said courts, subject to the direction in administrative matters of the Chief Justice. He shall preside at such criminal trials as he shall deem necessary."
While the grand jury is an independent body in investigating the facts and in making presentments and indictments, it necessarily looks to the judge presiding in the county not only for instructions on the law to govern its deliberations in particular matters but also as to the matters of crime or of public concern that should receive its attention. Any unusual matter such as the conditions in the Camden County jail manifestly calls for specific instructions, if the criminal law is to be adequately enforced and if the public interest in the efficient administration of public institutions is to be maintained. We must constantly keep in mind not only that in the last analysis every civil right that we treasure necessarily depends on the orderly administration of the criminal law, but also that the sound administration of government at every level depends in large measure on enlightened and informed public opinion and that in this field the grand jury not only has rights but grave responsibilities.
The document in question, although called a "report" by the grand jury, is treated by the appellant as a presentment, and properly so. In some states grand jury "reports" are known and either sanctioned or condemned, but not in New Jersey. The grand jury within its sphere is an independent body and it reports to no one. Its function for centuries, at common law and here, has been to indict or to present and its work is limited to indictments and presentments.
While we are concerned here with a grand jury presentment, it is to be noted that the term "presentment" is not limited
at common law to the work of the grand jury: "There are other presentments of church wardens, constables, surveyors of the highways and justice of the peace," 4 Burn's Justices (17 th ed., 1793) 57, 376-377; 2 Id. 542-551. The term "presentment" is also applied to a coroner's inquisition, Paterson's Laws 196-197 (1796), now R.S. 40:40-17, and it is commonly used here by the ethics and grievance committees appointed by the court for each county to describe their findings handed up to it in disciplinary matters, see Rules 1:9-4 and 1:9-5. Thus presentments relate not merely to the work of the grand jury and to criminal accusations, but to a much wider variety of matters.
In the criminal law the term presentment has been used in two senses: it included "not only presentments properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation without any bill of indictment laid before them at the suit of the king," 4 Blackstone's Commentaries 301; Burn's Abridgement 328. Presentments in this criminal sense have long since disappeared everywhere in practice for reasons which we hereafter develop. But although criminal presentments have vanished, the term, "presentment by a grand jury," has also been employed for centuries to designate the findings of a grand jury with respect to derelictions in matters of public concern, particularly of officials, which may fall short of being criminal offenses. This type of presentment differs from the obsolete criminal presentment in that it does not lead to a trial, but merely to a notice to the offender.
To comprehend the significance of presentments today with respect to public affairs and to understand the work of the grand jury it is necessary to sketch the various modes of criminal prosecution known to the common law and available in this State, and their relation to the work of the grand jury. The earliest, mentioned ...