On appeal from the Passaic County Court, Law Division.
For reversal -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
Pursuant to R.R. 3:5-5(b)(7), the State appeals from a judgment of the Law Division, Passaic County, dismissing three indictments, handed down by the September 1955 term grand jury of Passaic County against Bernard J. Manney, on the ground that an unauthorized person was present in the grand jury room during its deliberative sessions.
The State also appeals from a denial of the State's motion to expunge the affidavits of two grand jurors and to hold them in contempt for violating the oath of secrecy which they took as grand jurors. We granted certification on our own motion prior to argument in the Appellate Division.
The indictments against Manney related to his allegedly illegal conduct as a member of the Board of Commissioners of the City of Passaic. They charged him with attempting to extort a total of $25,000 from three successful bidders on a new city hall project planned by Passaic. The means of extortion were alleged to be "by intimidating and threatening to use the power and color of his office to impede and prevent the acceptance, performance and fulfillment of the contract * * *." N.J.S. 2 A:85-1 and 5.
Following his arraignment and plea of not guilty, Manney filed a notice of motion to dismiss the indictments upon the ground, amongst others, that they were improperly and illegally found and returned. The reasons asserted were: (1) during the deliberations of the grand jury relating to
his indictments an unauthorized person, Mrs. Vi Gormley, was present in the grand jury room contrary to law; (2) the indictments were found and returned upon extraneous matters not part of the evidence presented before the grand jury; (3) the indictments were found out of bias, malice and prejudice unsupported by evidence; and (4) the indictments were found as a result of malicious misstatements of fact circulated by certain members of the grand jury which were intended to arouse and inflame other members of the grand jury, such statements being unsupported by the evidence.
The motion was supported by affidavits of two members of the grand jury, Esther N. Dilger and Michael Greengrass. The Dilger affidavit recited Mrs. Gormley was present while the grand jury was deliberating as to whether or not Manney should be indicted, and was also present when the vote of the grand jury was taken and tabulated. It also charged that at the outset of the taking of testimony Mrs. Dilger was aware of intense feeling, bias, prejudice and antagonism against Manney on the part of three other grand jury members, Woolley, Richardson and Pfeil. The affidavit asserted these three expressed opinions that Manney was guilty of the alleged attempted extortion and devoted themselves to persuading other members of the grand jury that indictments should be returned irrespective of the evidence presented.
It was said in the affidavit that Miss Woolley, prior to the voting of the indictments, stated Manney and Angelo Capuano were "both crooked," and Dilger alleged that she had voted for the indictments only because of the influence exerted upon her by Woolley.
The Greengrass affidavit was essentially similar. It stated Mrs. Gormley was present while testimony was being taken, while the jury deliberated on whether to hand down indictments, and when the vote was taken. It attested to the same bias, prejudice and antagonism on the part of Miss Woolley disclosed in the Dilger affidavit. Greengrass asserted that Miss Woolley tried to convince him these two men were guilty of the alleged attempted extortion. The affiant said
further that Manney and Capuano were indicted by an affirmative vote of 12 members of the grand jury, but he voted against the indictments since he did not believe the proof was sufficient to establish even a prima facie case. He also said that during the deliberations of the grand jury and prior to the return of the indictments, extraneous matters were considered which were not brought out by the evidence, but he asserted an inability to recall the exact nature of these extraneous matters.
Prior to the hearing of the defendant's motion the State moved to expunge the affidavits of Dilger and Greengrass "on the ground that the matters therein set forth constitute the disclosure of the proceedings of the September, 1955 term of the Grand Jury which are by law, secret and not to be publicly revealed except by order of the court." The State's motion also put Dilger and Greengrass on notice that it would make an application for the imposition of a penalty because of their disclosures of information regarded by law as secret.
The State submitted the affidavits of Woolley, Richardson and Pfeil in opposition to the motion to dismiss the indictments. In substance, these affidavits were identical. Each recalled the oath taken by the grand jurors upon the formation of the grand jury, set forth the obligation to maintain secrecy, disclosed the intention not to reveal any facts concerning the deliberations, opinions or the vote of any member of the grand jury, denied the charge of bias or prejudice, and averred conscientious performance of a public duty, relating that each affiant had had little or no contact with Manney either socially or as a public official.
An affidavit of Mrs. Gormley was also filed. She is a stenographer regularly employed in the office of the Prosecutor for Passaic County, but on December 14, 1955 Assignment Judge Robert H. Davidson, by order, designated her as an assistant to the clerk of the grand jury of Passaic County by reason of the disability of both the regular clerk and the regular assistant to the clerk of the grand jury. Her affidavit set forth the nature of her ordinary employment
and the fact of her special appointment by the assignment judge. Additionally, it stated:
"I was present at the time when the vote was taken on the indictments voted in the above matter. I recall that no deliberations took place on this case at that time. I was present when the vote was taken and as part of my duties I recorded the vote of each member of the Grand Jury present."
The court below decided that the presence of Mrs. Gormley, an unauthorized person, in the grand jury room during deliberations made it mandatory that the indictments be dismissed. R.R. 3:3-6. As to the State's motion, the court determined the affidavits made by Dilger and Greengrass did not violate the rule of secrecy pertaining to grand jury proceedings in so far as they related to the presence of Mrs. Gormley. With reference to other statements contained therein, the trial court conceded they "might be considered as violating the secrecy of the proceedings within the Grand Jury," but determined the affiants could not be held in contempt because the State had not proceeded in accordance with the requirements of R.R. 4:87, which prescribes the procedure to be utilized in an action for contempt. See R.R. 3:8.
The following questions are presented on appeal and will be disposed of in this order: (1) do the affidavits submitted sufficiently establish the fact of the presence of Mrs. Gormley during the grand jury deliberations? (2) does a violation of R.R. 3:3-6 vitiate the indictments per se, or must prejudice to the defendant be shown? (3) were the disclosures made by grand jurors Dilger and Greengrass a breach of their obligation to keep the proceedings secret? and (4) were the proceedings taken against these grand jurors to punish them sufficient under the circumstances?
The indictments were filed December 16, 1955. The affidavits of the grand jurors constituting the proof in this case are dated July 20, 1956 ...