Chief Justice CASTILLE.
This matter arises from proceedings that were undertaken during the course of an investigation into allegations of disclosures of protected information relating to the Dauphin County Fourth Investigating Grand Jury.
On May 4, 2006, the District Attorney of Dauphin County, Edward M. Marsico, Jr., filed an Application to impanel an Investigating Grand Jury. The application to investigate concerned certain matters relating to the licensing application filed on behalf of Louis A. DeNaples and Mount Airy # 1, LLC (herein "Petitioners"
On May 3, 2007, the grand jury issued three subpoenas duces tecum to the Gaming Control Board and its Executive Director, directing them to produce documents relating to Petitioners' gaming application and licenses. Petitioners filed a Petition to Intervene, to Stay Grand Jury Subpoenas, and for Access to Notice of Submission. On July 6, 2007, Supervising Judge Hoover ordered the District Attorney to provide Petitioners with a copy of the Notice of Submission, which had been amended. On that date, a subpoena duces tecum was served on Petitioner DeNaples, directing him to appear before the grand jury.
On July 18, 2007, Petitioners filed an Omnibus Motion to Quash Grand Jury Investigation and Omnibus Motion to Quash Grand Jury Subpoenas. A stay of enforcement was entered by Supervising Judge Hoover. On July 23, 2007, Supervising Judge Hoover heard argument on the Petitioners' Petition to Intervene, to Stay Grand Jury Subpoenas, and for Access to Notice of Submission. During the proceeding, Petitioners' counsel argued to Supervising Judge Hoover that protected information regarding the grand jury investigation had been improperly disclosed. Specifically, Petitioners' counsel related that the Gaming Control Board had been contacted and questioned whether it had received subpoenas from an investigating grand jury. First Assistant District Attorney Francis T. Chardo indicated that he had alerted Supervising Judge Hoover that he had received calls from the Philadelphia Daily News and The Associate Press inquiring about grand jury subpoenas.
On July 26, 2007, Supervising Judge Hoover conducted an in camera conference to address newspaper articles that were published on that same date by the Philadelphia Inquirer, the Philadelphia Daily News, and the Associated Press. The news articles reported the existence of a grand jury investigation involving Petitioner DeNaples.
The articles claimed that "sources close to the investigation" had disclosed that the grand jury investigation involved whether Petitioner DeNaples had lied in connection with his application for a casino license, and reported that the Dauphin County District Attorney's Office had issued a subpoena to the Gaming Control Board. The articles indicated that the reporters had contacted the Gaming Control Board to inquire whether the Board had been subpoenaed for documents or the testimony of its staff, but that a Board spokesman had declined to comment. Furthermore, specific witnesses who had appeared to testify before the grand jury were identified in the articles.
Supervising Judge Hoover requested that a written motion be filed by Petitioners' counsel, after which a hearing would be scheduled. On July 31, 2007, Petitioners filed a Motion for an Evidentiary Hearing Regarding Violation of Grand Jury Secrecy, alleging that the many media reports of the grand jury proceedings demonstrated a breach of secrecy.
On September 20, 2007, Supervising Judge Hoover entered several orders pertaining to Petitioners' Omnibus Motion to Quash Grand Jury Investigation and Omnibus Motion to Quash Grand Jury Subpoenas. One of the orders denied Petitioners' Motion to Quash for Violations of the Grand Jury Act and their request for
On October 1, 2007, Petitioners filed an Emergency Application for Review Pursuant to 42 Pa.C.S. § 722(5) and Pa.R.A.P. 3331(a) with this Court, challenging the District Attorney's authority to investigate alleged crimes arising out of the gaming licensing application process. Petitioners also raised claims that (1) the application for impanelment of the grand jury was invalid; (2) the grand jury investigation usurped the Gaming Board's investigatory authority and discretion; (3) the confidentiality provisions of the Gaming Act had been violated; (4) the notice of submission was invalid; and (5) subpoenas duces tecum issued to the Gaming Board and its executive director for documents relating to Petitioners' gaming applications and license were legally flawed. Petitioners' request for a stay was granted by this Court in order to maintain the status quo and to allow the District Attorney to respond to Petitioners' allegations.
On December 10, 2007, this Court issued an opinion in In Re Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929 (2007), summarily denying Petitioners' Application for Review with respect to most issues because the claims did not involve final orders or warrant immediate review pursuant to 42 Pa. C.S. § 726, except for Petitioners' challenge to the District Attorney's authority/jurisdiction to conduct the grand jury investigation into the licensing process. With respect to the violations of grand jury secrecy, we noted:
943 A.2d at 935-936.
We exercised extraordinary jurisdiction, however, over the challenge pertaining to the authority of the District Attorney to convene a grand jury under the Gaming Act. The issue involved the interpretation of Section 1517(d) of the Gaming Act (relating to investigations and enforcement), which states in relevant part:
4 Pa.C.S. § 1517(d).
Petitioners acknowledged that Section 1517(d) explicitly provides district attorneys with the authority to investigate violations under the Gaming Act, but argued that the authority of a district attorney should be deemed to be subordinate to that of the Attorney General. The Dauphin County District Attorney contended that the Gaming Act did not place any limitation on the powers and duties of district attorneys, and did not purport to vest exclusive jurisdiction over criminal violations of the Act in the Attorney General. As amicus curiae, the Attorney General posited that nothing in the Act rendered the authority of district attorneys subordinate to that of the Attorney General, and that the prosecutorial authority of district attorneys was concurrent.
We found the Attorney General's position to be persuasive, stating:
943 A.2d at 938.
We determined that "[t]he types of possible criminal violations being investigated by the District Attorney in this case—false statements/perjury relating to the licensing process, which occurred within his territorial jurisdiction—are clearly within the scope of veracity-based crimes recognized by the Gaming Act." 943 A.2d at 938, citing 4 Pa.C.S. § 1518(a)(1). Neither the Gaming Act nor the Investigating Grand Jury Act appeared to limit the District Attorney's use of the investigating grand jury under the circumstances of the case. On that basis, we rejected Petitioners' challenge to the Dauphin County District Attorney's authority, holding that "county district attorneys share concurrent jurisdiction with the Attorney General to investigate criminal violations of the Gaming Act, and that the Gaming Act does not limit the existing authority of local prosecutors." 943 A.2d at 938.
While this Court was considering Petitioners' challenge to the authority of the District Attorney, Supervising Judge Hoover deferred consideration of Petitioners' Motion for Evidentiary Hearing Regarding Violation of Grand Jury Secrecy, which had been filed on July 31, 2007. After this Court issued its opinion, the District Attorney requested that Supervising Judge Hoover deny the pending motion. Petitioners opposed the request and asked Supervising Judge Hoover to conduct a hearing.
On January 2, 2008, Petitioners provided Supervising Judge Hoover with copies of newspaper articles that had been published after the pending motion had been filed. The articles referred to specific matters that were purportedly under investigation by the grand jury, described information about those grand jury matters as having been provided by "sources familiar with the case," and identified witnesses who had appeared before the grand jury. The submitted articles included the following:
The grand jury issued a presentment against Father Joseph F. Sica recommending criminal charges, which was accepted by Supervising Judge Hoover on December 28, 2007. On January 22, 2008, Sica filed a Petition for Review Pursuant to Pa.R.A.P. 3331 with this Court, which was docketed at 13 MM 2008. On January 23, 2008, the grand jury issued a presentment against DeNaples and Mt. Airy, which was accepted by the Supervising Judge by a final order dated January 28, 2008. On February 11, 2008, DeNaples and Mount Airy filed a Renewed Application for Review Pursuant to 42 Pa.C.S. § 722(5) and Pa.R.A.P. 3331(a) and Application for a Stay of Proceedings Pending Review with this Court. These pleadings were docketed at 28 MM 2008. The Petition raised several claims and renewed their assertion that there had been violations of the secrecy of the grand jury investigation. The Petitioners requested the appointment of a master to investigate the alleged violations and sought a stay of the proceedings.
On May 2, 2008, this Court entered a Per Curiam Order at docket numbers 13 & 28 MM 2008, granting the request for the exercise of extraordinary jurisdiction pursuant to 42 Pa.C.S. § 726, but limited to the question of alleged violations of grand jury secrecy. The order further provided that:
Our retention of jurisdiction was explicitly limited to the issue of grand jury secrecy.
On May 7, 2008, Supervising Judge Hoover held a conference with District Attorney Marsico, First Assistant District Attorney Chardo, and counsel for DeNaples and Sica to address this Court's order. On June 6, 2008, Supervising Judge Hoover entered an order scheduling a hearing for June 30, 2008. The order further stated:
On June 27, 2008, Supervising Judge Hoover entered an order, directing that the evidentiary hearing was to be closed. The proceedings were then conducted on June 30 and July 1, 2008.
On August 4, 2008, Supervising Judge Hoover issued a "Report and Recommendations of the Supervising Judge of Fourth Investigating Grand Jury," which was filed with this Court under seal. The issuance of the Supervising Judge's Report and Recommendations was followed by the filing of various applications and responses thereto that also were filed under seal by the parties, and for this Court's review and consideration of the same.
On February 24, 2009, this Court entered a Per Curiam Order directing as follows:
See 13 MM 2008 and 28 MM 2008.
On April 14, 2009, after consideration of an application filed by the Associated Press, Supervising Judge Hoover entered an order unsealing his Report and Recommendations regarding the appointment of a special prosecutor. The order further provided that a copy was to be transmitted to the Associated Press' counsel, and that the Clerk of Courts was to make the Report and Recommendations open for public inspection.
On April 17, 2009, District Attorney Marsico entered a nolle prosequi of the charges filed against DeNaples. District
On May 14, 2009, then President Judge Richard A. Lewis issued an order appointing Albert G. Blakey, Esquire, who formerly had served with distinction as a Judge of the York County Common Pleas Court, to serve as the special prosecutor. The order provided as follows:
On May 5, 2010, Special Prosecutor Blakey submitted a copy of his Report of the Special Prosecutor ("Report") to now President Judge Todd A. Hoover. On May 27,
Following his appointment, Special Prosecutor Blakey undertook preliminary review of documents from the underlying grand jury proceedings. Transcripts of the testimony before the grand jury, depositions of witnesses whose testimony was read to the grand jury, and transcripts of in-chamber proceedings before Supervising Judge Todd Hoover were reviewed. Special Prosecutor Blakey reviewed the petitions, answers, briefs and orders relating to ancillary proceedings during the grand jury proceedings. Exhibits attached to the filings included newspaper articles that allegedly established that the secrecy provision of the Investigating Grand Jury Act had been violated when information was conveyed to reporters who authored the articles. Special Prosecutor Blakey also reviewed the transcript of hearings conducted on June 30, 2008, and July 1, 2008, before Supervising Judge Hoover, concerning his investigation into the allegations of a breach of grand jury secrecy.
Special Prosecutor Blakey noted that his preliminary review indicated that the reporters had a great deal of knowledge about what was occurring before the grand jury on a daily basis, stating:
Report of Special Prosecutor at 3.
Special Prosecutor Blakey reasoned that "[t]he most likely source of the information provided to the various reporters was Pennsylvania State Troopers Richard Weinstock and David Swartz and Assistant District Attorney Fran Chardo, all of whom had extensive contact with various reporters during the course of the Grand Jury proceedings as established by telephone records." Report at 3. The three individuals identified by Special Prosecutor Blakey were directly involved in the grand jury investigation. Assistant District Attorney Chardo conducted the proceedings. Trooper Swartz attended all of the proceedings that were conducted in Harrisburg, while Trooper Weinstock was involved in the investigation, the depositions of other witnesses, and guarding the door to the grand jury room when witnesses were called and questioned.
The referenced telephone records disclosed that Trooper Weinstock had 38 calls to or from Matthew Birkbeck, a reporter for The Morning Call, during the period from August 22, 2007 to January 16, 2008. Trooper Swartz had 13 telephone calls with reporters during the relevant time period, and Assistant District Attorney Chardo spoke to various reporters 20 times during the period from January 5, 2007 to January 3, 2008.
Special Prosecutor Blakey subpoenaed Assistant District Attorney Chardo and Troopers Weinstock and Swartz, requesting the production of any notes that may
Special Prosecutor Blakey subpoenaed the reporters who had been contacted, Matthew Birkbeck, Kitty Caparelli and Chris Brennan of the Philadelphia Inquirer, and Marc Levy of The Associated Press. After negotiations with counsel for the reporters, and the filing of a motion to compel, the reporters' counsel agreed to allow Special Prosecutor Blakey to review the few notes that the reporters claimed to have made, after redacting portions purportedly unrelated to the grand jury investigation. The redacted notes "offered nothing of substance with respect to the conversations at issue to confirm or deny the reporters' contentions that no information about the Grand Jury proceedings was divulged." Report at 5. Special Prosecutor Blakey expressed his skepticism of Matthew Birkbeck's claimed inability to recall a 20-minute conversation with Trooper Weinstock, but indicated that the information obtained from the reporters and the testimony of Assistant District Attorney Chardo and Troopers Weinstock and Swartz were insufficient to establish that they had divulged information from the grand jury proceedings.
Special Prosecutor Blakey further observed that his investigation was impeded by the Pennsylvania Shield Law, citing the Superior Court's decision in Castellani v. The Scranton Times, 916 A.2d 648 (Pa.Super.2007), aff'd 598 Pa. 283, 956 A.2d 937 (2008). Reporters, including Marc Levy, had admitted that they had received information about the grand jury investigation from confidential sources. The confidential sources were frequently described as "persons familiar with the probe." The reporters refused to answer questions about how they gained factual information that was published in their newspapers, citing confidential and anonymous sources. Because he was unable to pursue key questions regarding the source of the information reported in the newspapers, Special Prosecutor Blakey acknowledged that he had not developed any credible evidence to establish the source of the grand jury leaks that were reported, and that further interrogation of the uncooperative reporters would be futile.
Of importance to this Court's present consideration, Special Prosecutor Blakey was able to determine, however, that there were "serious problems with respect to the manner in which the Grand Jury hearings proceeded", and those problems were conducive to the breaches in secrecy that followed.
Report at 5. Special Prosecutor Blakey found that these procedures, apparently adopted by the Office of the District Attorney and left uncorrected by the Supervising Judge, were inappropriate and set the stage for improper disclosures. The procedures were particularly inexplicable as there was access to the hearing room from the District Attorney's Office on a separate floor through a private elevator that would have permitted the witnesses to enter the hearing room without being seen or contacted by the reporters.
Special Prosecutor Blakey ultimately found that his investigation into the leaks had been inconclusive and unsatisfactory as the Pennsylvania Shield Law prevented him from asking the reporters directly for the sources of the information they had received and elected to publicize. Special Prosecutor Blakey then set forth the following specific findings regarding the disclosure of information about the grand jury proceedings:
Report at 8. As a result, Special Prosecutor Blakey recommended that his "investigation be abandoned, as inconclusive and unsatisfactory, as it has been." Id.
The significance of Special Prosecutor Blakey's inquiry cannot be overstated. Although Special Prosecutor Blakey proved unable to identify with reasonable certitude the source(s) of the leaks, he did expose a grand jury process, external to the actual investigation and deliberation of the grand jury, which was avoidable, inexplicable, and created an atmosphere where a breach of grand jury secrecy became all but inevitable.
In Pennsylvania, grand jury proceedings have traditionally been conducted in secrecy, and for a salutary reason. The secrecy of grand jury proceedings is "indispensable to the effective functioning of a grand jury." In re Investigating Grand
Id.; Accord Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896, 905 (1975) ("The secrecy surrounding grand jury proceedings is a mechanism to ensure the safety and reputation of witnesses and grand jurors.")
In enacting the Investigating Grand Jury Act, 42 Pa.C.S. § 4541 et seq., the General Assembly sought to preserve the traditional rule of secrecy in grand jury proceedings. The Act provides, in relevant part:
42 Pa.C.S. § 4549(b). Furthermore, although grand jury witnesses are generally permitted to disclose their testimony to others, the supervising judge may prohibit such disclosure "for cause shown." 42 Pa. C.S. § 4549(d). This Court has adopted procedural rules to ensure the secrecy of such proceedings. Specifically, Pa. R.Crim.P. 231(C) states that "[a]ll persons who are to be present while the grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law."
The very power of the grand jury, and the secrecy in which it must operate, call for a strong judicial hand in supervising the proceedings. The seminal role of the supervising judge of a grand jury was recognized by this Court in In Re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 907 A.2d 505 (2006):
907 A.2d at 512 (citation omitted). Thus, "Pennsylvania's grand jury process is `strictly regulated,' and the supervising judge has the singular role in maintaining the confidentiality of grand jury proceedings." Camiolo v. State Farm Fire and Casualty Co., 334 F.3d 345, 356 (3rd Cir. 2003) (citation omitted). "The supervising judge has the continuing responsibility to oversee grand jury proceedings, a responsibility which includes insuring the solemn oath of secrecy is observed by all participants." In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73, 78 (1980).
When there are colorable allegations or indications that the sanctity of the grand jury process has been breached and those allegations warrant investigation, the appointment of a special prosecutor to conduct such an investigation is appropriate. And, even where the investigations of special prosecutors do not lead to prosecutable breaches of secrecy, they may provide insight into the often-competing values at stake, as well as guidance and context so that prosecutors and supervising judges conducting future proceedings may learn from the examples. Two recent instances are illustrative.
In Re: County Investigating Grand Jury VIII, 2003, 2005 WL 3985351 (Lack. Com.Pl.2005) involved a motion to quash the presentment issued by a Lackawanna County Grand Jury, recommending that criminal charges be filed against four Lackawanna County prison guards for conduct relating to abuse of inmates. In the motion to quash the presentment, allegations were made that the Lackawanna County District Attorney's Office had exchanged e-mail communications with a newspaper reporter that divulged grand jury information, and that a grand jury witness was contacted by the reporter shortly after the witness appeared before the grand jury and was questioned about private matters that had been disclosed only to the grand jury.
An initial review of the allegations by the common pleas court judge confirmed the existence, but not the substance, of e-mails that were exchanged between the reporter and a member of the District Attorney's office during the time period that the grand jury was investigating the county prison. The review also confirmed that newspaper articles referenced testimony purportedly given by grand jury witnesses, that witnesses had complained that the reporter had appeared at the courthouse on dates that the grand jury was considering the county prison investigation, and that one witness had been contacted at home by the reporter before the witness was subpoenaed to testify before the grand jury. Based upon its review, the common pleas court appointed a special prosecutor to investigate the allegations of a grand jury leak.
The special prosecutor focused his investigation on the allegations that: (1) the reporter was informed in advance of the dates when the grand jury was scheduled to hear testimony concerning the probe into the county prison; and (2) information regarding the proceedings before the grand jury were divulged to the reporter by the District Attorney's office. The special prosecutor obtained copies of the relevant e-mails and articles authored by the reporter. Interviews of the authors and recipients of the e-mails, the reporter, attorneys and other staff employed by the District Attorney's office, an attorney who represented an individual charged in the presentment, and grand jury witnesses were conducted by the special prosecutor. At the conclusion of the investigation, the
The common pleas court reviewed the special prosecutor's report and recommendation in considering the motion to quash the presentment. The court noted that the reporter had submitted to two interviews by the special prosecutor and had voluntarily disclosed the sources for the information contained in her articles about the grand jury proceedings. During the first interview, the reporter identified a court reporter as one of her sources for information about the scheduling of grand jury proceedings. Since the court reporter had died prior to the dates of two of the grand jury sessions, the court reporter could not have been the source of that information. When the reporter was questioned again during the second interview, she indicated that other sources and "courthouse gadflies" had advised her of the scheduled dates. Members of the District Attorney's Office acknowledged during interviews that if the reporter had asked for the grand jury's schedule of sessions, the staff likely would have provided the information.
The common pleas court concluded that, even assuming that a member of the District Attorney's office intentionally or unwittingly had disclosed the grand jury's schedule of sessions to the reporter, such conduct would not justify dismissal of the presentment because Section 4549(b) of the Investigating Grand Jury Act, 42 Pa. C.S. § 4549(b), prohibits only the disclosure of "matters occurring before the grand jury." The court reasoned that "ministerial information relating to the date of a grand jury session did not constitute disclosure of `matters occurring before a grand jury'" because the information did not reveal testimony, documentary evidence or other matters that took place within the secret confines of the grand jury room; the court was careful to note, however, that it was not condoning the dissemination of the grand jury's schedule.
The court further observed that the reporter's articles contained discussions of grand jury testimony and other "matters occurring before the grand jury," including statements from prison inmates regarding their grand jury testimony. In her interview with the special prosecutor, the reporter denied that any member of the District Attorney's Office was the source for her accounts of the grand jury testimony or other information discussed in the news articles. The reporter stated that she was present in the courthouse hallway when the witnesses appeared to testify, and would approach the witnesses for comment as they exited the grand jury hearing room. The published articles appeared to contain information that the reporter could have gathered from the inmates or from her own visual observations.
The court noted that the grand jury itself had taken exception to the presence of the reporter, and the grand jury's report expressed its significant concerns about the reporter sitting in the hallway outside of the grand jury room. Although the court noted that the dissemination of the grand jury's session dates did not constitute an improper disclosure of matters occurring before the grand jury, the court was critical of the practice. The court observed that grand jury secrecy affords protection to innocent, cooperating witnesses from the stigma associated with being identified as someone who has appeared before a grand jury. The court cautioned that greater efforts should be made in the future to insure that the grand jury's schedule would not be revealed to the media or the public.
During the special prosecutor's investigation, the reporter denied that she had
The common pleas court noted that the members of the District Attorney's office who were interviewed by the special prosecutor denied that they ever provided the reporter with any information regarding the proceedings in the grand jury room. With respect to the exchange of e-mail messages, the special prosecutor found that their explanations were adequate to explain the references to the grand jury witnesses in the e-mails and to establish that the e-mails did not contain clear and unequivocal improper references to grand jury evidence.
The common pleas court concluded that, even if such an improper disclosure had occurred, quashal of the presentment would not have been appropriate unless the defendant could demonstrate actual prejudice by establishing that such misconduct substantially influenced the grand jury's decision to issue a presentment and to recommend the filing of criminal charges. The court determined that there was no evidence that any purported grand jury leak or any information contained in the reporter's articles substantially influenced the grand jury's decision to issue a presentment, or caused actual prejudice to the defendant. The court noted that a lengthy cautionary instruction had been given to the grand jury after the articles were published, informing the grand jury that the media reports of the investigation were to be ignored. After the instruction was given, the grand jurors assured the court that they had not reviewed or considered any of the articles, and that they would continue to disregard any future media reports.
The common pleas court found that the special prosecutor's investigation had not proven that matters of secrecy occurring before the grand jury had been disclosed to the reporter by the prosecution. The court found also that the defendant had not established the prejudice required to warrant the dismissal of the presentment. The court observed that the defendant would be entitled to a preliminary hearing following the filing of criminal charges based upon the presentment under the Investigating Grand Jury Act, 42 Pa.C.S. § 4551(e), which would further ameliorate any alleged prejudice suffered by him. Since the defendant had failed to establish prejudice, the court concluded that there was no basis upon which to quash the grand jury's presentment.
A second instance involving appointment of a special prosecutor in connection with alleged grand jury leaks, and in explication of the complex interests and values implicated, is reflected in Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937 (2008). In that case, the supervising judge of a grand jury appointed a separate special prosecutor to investigate allegations of grand jury leaks with respect to the statewide investigating grand jury impaneled to investigate allegations of abuse of county prisoners by Lackawanna County prison guards. Two county commissioners appeared to testify before the grand jury in response to subpoenas issued by the Attorney General's Office. Newspaper articles were published subsequently, claiming that the commissioners were evasive and un-cooperative. The articles claimed that the commissioners' testimony had irritated the jurors and opined that the jurors "were ready to take out the big hook and yank
After the articles were published, the commissioners' counsel presented a petition for sanctions to the supervising judge based on the alleged disclosures of the grand jury proceedings to the newspapers. The supervising judge denied the petition due to lack of standing, but appointed a special prosecutor to investigate the source of the alleged unlawfully disclosed materials. The report submitted by the special prosecutor concluded that there was no breach of secrecy by any agent of the Attorney General's Office, finding that the newspaper reports were completely at variance with transcripts of the grand jury proceedings. The supervising judge concurred with the special prosecutor that the reports were not borne out by the record of the proceedings, and concluded that the source of the reporter's information was not the Attorney General's Office.
The appellants subsequently filed a civil complaint against the reporter and the newspapers, claiming that the news articles were false and contained defamatory statements. The appellants requested that the newspapers disclose the identity of the articles' source, which the appellees refused, citing the Pennsylvania Shield Law and the First Amendment of the U.S. Constitution. The appellants filed a motion to compel with the trial court and served interrogatories on the appellees seeking the identity of the source.
The Shield Law addresses confidential communications to news reporters as follows:
42 Pa.C.S. § 5942. The trial court granted the appellants' motion, concluding that the privileges afforded reporters under the Shield Law and the First Amendment should not be asserted to the detriment of the grand jury system and an individual's state constitutional right to vindicate his reputation. The appellees were ordered to disclose the identity of their source. The appellees filed a notice of appeal pursuant to Pa.R.A.P. 313 (collateral order rule). The Superior Court reversed the trial court's order, concluding that the Shield Law did not recognize an exception where a crime may have occurred due to an alleged disclosure of grand jury information.
On appeal, we addressed the issue of "whether the Shield Law protects media defendants in a defamation case from the court-ordered disclosure of the confidential source of an allegedly defamatory newspaper article, where the plaintiffs allege that the media defendants and the source were direct participants in the criminal disclosure of grand jury proceedings." Id. at 943.
The plaintiffs/appellants argued, inter alia, that the Shield Law should not protect
The appellees contended that this Court had repeatedly held that the Shield Law unambiguously provided an absolute privilege against the compelled disclosure of the identity of confidential sources or any information that could lead to such disclosure. The appellees asserted that the plain language of the Shield Law precluded the creation of a crime-fraud exception, and that the statutory protection against compelled disclosure must be applied even if the protections of the Shield Law would operate to conceal evidence of a crime. The appellees argued that overriding the Shield Law's protections in the context of the libel action would not vindicate the interests advanced by the secrecy provisions of the Investigating Grand Jury Act because the question whether there had been a violation of grand jury secrecy was incidental to the appellants' defamation action.
This Court reaffirmed that "the Shield Law prohibits the compelled disclosure of a confidential source's identity, or any information which could expose the source's identity." Id. at 954. In rejecting the appellants' arguments, we stated that:
956 A.2d at 950 (citation omitted).
We determined that "the public's interest in the free flow of information to the news media [was] not presently in conflict with the public's interest in grand jury secrecy." We stated:
956 A.2d at 952-953 (footnote omitted).
We observed, however, that:
Id. at 953 n. 14.
This case is unlike Castellani, in that Special Prosecutor Blakey conducted an inquiry into allegations that grand jury secrecy had been violated during the course of the grand jury investigation in the context of potential criminal proceedings; the inquiry did not arise during defamation proceedings or proceedings civil in nature. In conducting his inquiry, Special Prosecutor Blakey sought to elicit the cooperation of the reporters in possession of information that may have been a product of possible criminal violations of grand jury proceedings. The reporters provided limited cooperation, thereby forestalling a definitive resolution by Special Prosecutor Blakey.
The foreseeable situation described in Castellani — the tension that might arise where the Commonwealth sought to obtain a reporter's evidence concerning the source of a grand jury leak in a criminal investigation or prosecution of that leak — is again not squarely before us due to the limited inquiry ultimately undertaken by Special Prosecutor Blakey, who did not force the issue directly. Thus, the question of whether the protections afforded by the Shield Law may yield to the governmental interests in the investigation of alleged violations of grand jury secrecy again need not be resolved at this juncture.
In this instance, we are satisfied that Special Prosecutor Blakey need not be directed to do more to force the issue. We arrive at this determination for two primary reasons. First, Special Prosecutor Blakey's investigation and report has already served a salutary purpose by identifying the procedural misjudgments in this case which created an atmosphere
Had the District Attorney's Office been more attentive to its obligation to preserve secrecy, and had the supervising judge exercised a firmer hand, the question of a breach of secrecy may well never have arisen.
Second, Special Prosecutor Blakey's ultimate inability to determine the source of any breach of grand jury secrecy does not necessarily end the matter. Special Prosecutor Blakey's investigation and report does not foreclose further inquiry by an appropriate investigative or prosecutorial body that may wield the authority to obtain the reporters' evidence, and that of other individuals, concerning the alleged violations of grand jury secrecy. We leave it to those entities to determine whether further investigation or action is required.
For these reasons, we direct the Supreme Court Prothonotary Office to unseal the Report of the Special Prosecutor, and we further direct the Prothonotary to forward a copy of the Report and this Opinion to the Office of the Attorney General for any action deemed appropriate by that entity.
Jurisdiction is relinquished.
Justice SAYLOR did not participate in the consideration or decision of this case.
Justices EAKIN, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.
Likewise, the Commonwealth's investigatory and prosecutorial agencies should heed these important policies. Simply stated, and in relevance to the matter sub judice, certain individuals who appeared before this grand jury will forever be associated with an alleged organized crime figure, even though there may not be one iota of proof of such association. Clearly, and unfortunately, that is precisely what occurred as a result of the disclosures in this matter.
