On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
This case primarily concerns the proper procedures to be followed by courts and by prosecutors in screening grand jurors for possible prejudice. We shall also address the consequences of the State's failure to adhere to those procedures in the case before us. We find that although the proper procedures were not followed here, their absence neither tainted the indictment nor deprived the defendant of fundamental fairness during the grand jury proceedings. Consequently, we affirm the conviction of the defendant for conspiracy and for theft by deception. In the exercise of our supervisory jurisdiction over criminal procedure, however, we shall require that any future deviation from the procedures outlined in this opinion will lead to the dismissal of any resulting indictment.
For purposes of this appeal, we shall accept defendant's statement of the facts and proceedings below. Because the legal issues turn on the facts of this case, we shall state them in detail.
Defendant, Brooke Murphy, and others were indicted for participating in a conspiracy to defraud various insurance companies through the submission of false documents. Murphy was also charged with individual acts of theft by deception. Prior to trial, Murphy moved to dismiss the indictment alleging
that prosecutorial abuses had influenced the State grand jury that had indicted him.
The particular State grand jury was convened after having been sworn and charged by the Mercer County Assignment Judge to hear the evidence developed in a State insurance fraud investigation. Although this State grand jury was not specifically convened to investigate this statewide insurance scam, so far as we can discern from the record this was its sole task. The grand jury sat in Trenton at the Hughes Justice Complex. The Mercer County Assignment Judge's chambers are located several blocks away in the Mercer County Courthouse.
Before presenting evidence to the Grand Jury, a Deputy Attorney General [hereinafter, "DAG 1"] identified for the grand jurors both the alleged perpetrators and the insurance companies that were victims of the purported fraud. After the State had identified the parties involved, one of the grand jurors disclosed that she was currently employed by the Allstate Insurance Company, one of the alleged victims. On questioning by DAG 1, the grand juror said that she would not be prejudiced if she continued to sit on the grand jury. Although the assignment judge supervising the grand jury was sitting and available in the Mercer County Courthouse, DAG 1 was directed by his superior, DAG 2, not to inform the judge of the potential conflict of interest and possible bias of the Allstate grand juror.
The Allstate juror was sitting with the other members of the grand jury on April 21, 1983, when the first witness to appear, an employee of the Allstate Insurance Company, testified for the State. After having heard the testimony of the Allstate witness, the Allstate juror telephoned DAG 2 on April 27, 1983, disclosed that she was currently involved in litigation with Allstate, and said that she no longer wished to sit as a grand juror. This conversation occurred one day before the next scheduled session of the grand jury. DAG 2 did not disclose to the assignment judge his conversation with the Allstate juror.
Instead, on his own initiative, he excused the Allstate grand juror from sitting on the grand jury. DAG 2's actions were summarized in court by DAG 1:
[DAG 2] excused that juror, not from the Grand jury service, but from sitting on this particular case which is, as I understand it, the proper method or the method that is followed with the State Grand jury, apparently with the Assignment Judge's acquiescence, I would have to assume, since this has occurred on more than one occasion in the course of Grand Jury proceedings.
DAG 2 acknowledged that the Allstate juror had spoken with the other grand jurors on April 21, 1983, and stated that he believed that the conversation "may have had to do with information about Allstate." In defendant's view, DAG 2 "misinformed" the grand jury's foreman about why the Allstate juror would no longer be sitting by stating that the Allstate juror had "excused herself from any further participation."
The grand jury reconvened on April 28, 1983. Just prior to the luncheon recess, one of the grand jurors informed DAG 1 that he was "concerned" because he was currently employed by the State Farm Insurance Company, another alleged victim of the fraud under investigation. As in the case of the Allstate grand juror, the assignment judge was sitting and available but was not informed of the State Farm juror's potential bias. Instead, shortly before the afternoon session of the grand jury, the DAGs instructed the foreman to speak off the record with the State Farm juror in order to investigate his potential bias. In particular, the foreman was instructed to inquire whether the State Farm juror was, through his employment, privy to information or facts that related to the pending investigation. The DAGs advised the foreman that if the juror's "answer is no, then it's really up to that juror whether or not he wants to sit." The foreman was also instructed that if the juror answered "no," the foreman should ask the juror whether he could render a judgment based solely on the evidence presented before the grand jury.
The foreman apparently conducted the inquiry in the presence of the other jurors. He then reported back to the DAGs:
"I asked him would you care to stay on. He was a little reluctant to say yes or no. He [said], 'I'll tell you right now I'll be a little prejudice[d].'" The foreman then told the DAGs that the grand jurors had taken a vote among themselves to determine whether to retain the State Farm juror:
I asked the rest of the Jurors what did they feel about it. There are some people that think that even though he may be prejudice [sic] to the case, he's one against many and in some particular cases he may be able to help the rest of the Jurors as ...