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In re Essex County Grand Jury

Decided: March 7, 1966.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For reversal -- None.

Per Curiam

The appellant, Harry Rosen, public relations officer of the Newark police department, moved to expunge a paragraph in a presentment made by the Essex County Grand Jury in April 1965 because, he claimed, it constituted improper censure of him as a public official. See In re Presentment by Camden County Grand Jury, 34 N.J. 378 (1961). Assignment Judge Waugh struck a portion of the paragraph and ordered the document filed as so altered. It was then made public. Rosen appealed from the refusal to expunge the paragraph in its entirety and the State cross-appealed from the action of the judge in striking the portion he did. R.R. 3:3-9(e). We certified the appeals on our own motion before hearing in the Appellate Division. R.R. 1:10-1(a).

In the course of its service, this Grand Jury had presented to it by the Prosecutor evidence resulting from his investigation of an anonymous communication which had previously come to his attention. The communication, while speaking particularly of a gambling operation at a named location and related bizarre police action, or more accurately, lack of it, some six months previously, also contained serious allegations suggesting nonfeasance, malfeasance and neglect of duty by some members of the Newark Police Department in enforcing

the criminal law, especially in regard to gambling and organized crime. After the jury had heard the testimony about the particular gambling operation, the Prosecutor advised the Assignment Judge of the whole situation, who then gave the jury a comprehensive supplemental charge. He indicated that the jury should hear additional evidence and thoroughly probe the matter of police activity against organized gambling in Newark, as well as the internal administration of the department. The presentment in question was one of the results of this probe.

At the inception of its service, the jury had received the customary charge of the court outlining its general powers, duties and obligations. Included were instructions concerning its power to make presentments and the procedure to be followed in such case. The judge said, substantially utilizing the language of this court in In re Presentment by Camden County Grand Jury, supra (34 N.J., at p. 391):

"The subject matter of a presentment must be a matter of general public interest, or relate to some aspect of public affairs, or to some public evil or condition to which, in the discretion of the jury, the attention of the community should be directed. And censure of a public official is permissible only where it may be said with absolute certainty that his connection with the condemned matter is such that its existence is inextricably related to non-criminal failure to discharge his public duty. More particularly and by way of further qualification, the criticism of the individual is allowable only where it is integrally associated with the main purpose of the report, i.e., to draw critical attention to some undesirable condition in the affairs of the public."

This was followed in the charge by the comment:

"There can be no compromise with crime or criminals. All of us charged with the administration of the law in this County -- and you are now a part of that administration -- must be vigilant to eradicate crime. Complacency of the community and those charged with the administration of the criminal law therein, is not to be tolerated. Fair and impartial enforcement of all criminal laws is the keystone to the preservation of order and decency."

At this point we may well dispose of the appellant's subsidiary contention to the effect that this presentment is

an illegal one because "the Assignment Judge never instructed the Grand Jury on the issues and proof requirements necessary to censure a public official in a presentment." Assuming the presentment paragraph objected to amounts to censure, the point is utterly frivolous. The jury was fully advised on the subject. Moreover, there is no legal requirement that a Grand Jury must be specifically instructed on a particular matter or a particular procedure before it may act by way of indictment on presentment. As to the latter, our rules place the obligation on the Assignment Judge to whom a presentment is returned to be assured of its propriety before filing it and making it public. R.R. 3:3-9(c) provides:

"Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, he shall refer the presentment back to the grand jury with appropriate instructions. Where a public official is censured the proof must be conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge his public duty. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, he shall strike the presentment either in full or in part. As an aid in examining the presentment the Assignment Judge may call for and examine the minutes and records of the grand jury, with or without the aid of the foreman or the prosecutor, to determine that a substantial foundation exists for the public report. Where the presentment reprobates a public official and the Assignment Judge determines not to strike, upon such aggrieved petitioner's motion there shall be a hearing. Such petitioner may examine the grand jury minutes fully, under such reasonable supervision as the court deems advisable, and he shall be permitted to introduce additional evidence to expose any deficiency."

In considering the appellant's main contention of alleged improper censure, the presentment must be viewed as a whole. After outlining the background of the jury investigation which we have previously mentioned, the document reported that the jury had devoted the major portion of its attention to a consideration of organized crime in Newark and the ability of the city ...

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