Grand Jury Secrecy Hides Reason for Supreme Court Order Barring Release of Priest Sex Abuse Report
By Steve Esack and Tim Darragh
Of The Morning Call
June 21, 2018
|Catholics in six dioceses in Pennsylvania were expecting a grand jury report by the end of the month regarding sex abuse by priests, but the Pennsylvania Supreme Court has put the release on hold. (File photo / THE MORNING CALL)|
Two paragraphs, 63 words.
That’s all it took for the Pennsylvania Supreme Court to halt the pending publication of a lengthy grand jury report detailing decades of child sex abuse claims and possible cover-ups in six Catholic dioceses.
The high court’s majority decision, issued Wednesday, could be unprecedented under the state’s grand jury law, which is revered by prosecutors for its investigative power, decried by some defense lawyers as unconstitutional overreach and the subject of separate judicial and legislative reviews.
But the reasoning behind the justices’ decision is unknown.
The order was the only record released so far. All other documents are sealed in the case, which began in 2016 and was expected to end next week with the report’s unveiling. It also did not list a time frame for when the justices might hold a hearing on whether to release the report — or seal it forever.
“I’ve never seen one like this where the grand jury report is supposed to be finished and some person filed something to try to hold it up,” said Ron Castille, retired state Supreme Court chief justice. “But obviously it is of enough importance for the Supreme Court to hold it.”
The grand jury examined allegations of child abuse in the Allentown, Erie, Greensburg, Harrisburg, Scranton and Pittsburgh dioceses. Attorney General Josh Shapiro has vowed to fight to publicize the report and his office has booked the Capitol Media Center for a news conference Thursday.
Meanwhile all the dioceses have said they did not seek the court injunction and are prepared for its publication.
“I think we’re all waiting for the report to see what’s in it,” Northampton County District Attorney John Morganelli said. “I’m a little bit puzzled by the Supreme Court’s decision. It’s an issue of public interest and concern. It might be just a temporary thing.”
So what has caused the legal stalemate? A June 5 order issued by Cambria County Judge Norman Krumenacker, who is overseeing the grand jury, could shed some light.
Krumenacker’s order dealt with a request from six defense lawyers representing unnamed individuals who are mentioned but not charged in the report. The lawyers wanted Krumenacker to postpone the report’s publication or redact parts of it. The lawyers also wanted a chance to cross-examine witnesses and present their own evidence to ensure their clients’ receive due process and the right to a clean reputation under the state constitution.
The constitution lists “reputation” as one of the “inherent rights of mankind.” It also says in part “every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”
Krumenacker rejected their requests in an 11-page order. He said the state grand jury law and prior state and federal court decisions do not permit defense lawyers to enter their own evidence in grand jury proceedings. Nor does the grand jury law permit a judge to redact or rewrite part of the report, he said.
Finally, Krumenacker added the defense’s claims are outweighed by the attorney general’s duty to protect children as outlined in the two-year probe “related to allegations of child sex abuse, failure to make a mandatory report, acts endangering the welfare of children, and obstruction of justice by individuals associated with the Roman Catholic Church, local public officials and community leaders.”
Still, Krumenacker knew his decision might not be final. He wrote: “There is substantial ground for difference of opinion and that immediate appeal from this opinion and order may materially advance the ultimate termination of this matter.”
Appellate courts can only decide matters brought before a lower court. The rest of the court case is under wraps. So it’s unknown whether Krumenacker rejected other defense arguments to postpone or kill the report, and if he did, those decisions can be appealed, too.
His June 5 order shows it was sent to the following defense lawyers: Christopher Carusone of Harrisburg; John Marty of Pittsburgh; Robert Donatoni of West Chester; Christopher Capozzi of Pittsburgh; Glenn Parno of Harrisburg; and Jessica Meller of Philadelphia.
Only Carusone responded to a request for comment. He said grand jury secrecy provisions preclude him from confirming or denying whether he is involved in the Supreme Court appeal.
Bruce Ledewitz, a Duquesne University law professor, said the Supreme Court has the power to intervene in a grand jury matter and anyone named but not charged in a report can ask the court for judicial relief. Presumably, he added, one or more people filed the appeal because they think “the grand jury went outside its authority.”
On Wednesday, Attorney General Josh Shapiro said he and his staff would fight to ensure “the victims of this abuse are able to tell their stories and the findings of this investigation are made public to the people of Pennsylvania.”
One of those alleged victims is state Rep. Mark Rozzi, D-Berks, who testified before the grand jury and spoke publicly about the abuse he says he endured as a youth by an Allentown Diocese priest. In an interview in his office Wednesday, Rozzi questioned why the Supreme Court did not intervene in the publication of grand jury reports detailing abuse and cover-ups in the Philadelphia Archdiocese (2005 and 2011) and Altoona-Johnstown Diocese (2016).
“This is absolutely devastating to many victims, " Rozzi said.
Terry McKiernan, of bishop-accountability.org, a nonprofit that tracks child sex abuse issues in the Catholic Church, said he has never seen a grand jury process play out in public. For instance, he said, in New Hampshire, under a more “polite” process, the state’s lone diocese was allowed to see the report and issued a “contrite” response.
“It does seem to me this whole situation is being approached in a more concerted and aggressive fashion by the people who it may affect,” McKiernan said.
Under Pennsylvania law, the writing of the grand jury report is overseen or dictated by prosecutors. A majority of the 23 jury panelists have to sign off on its contents before it goes to the supervising judge for final approval. The supervising judge can seal the presentment involving criminal charges “until the defendant is in custody or has been released pending trial.”
The law, however, is mute on whether a judge can seal a report that details noncriminal acts. The law also is silent on whether defense lawyers have a legal right to petition a court to keep the report secret. The law’s only recourse for a named, nonindicted person is to file a formal rebuttal that becomes an addendum to the grand jury report.
Defense attorneys across Pennsylvania don’t think the law is fair and have petitioned the Legislature to change it. This year, state Sen. Stewart Greenleaf, R-Montgomery, unveiled a bill that would preclude grand juries from criticizing public officials, witnesses and others who are not charged with a crime but whose actions, or lack of action, may have been a contributing factor to the crime. He withdrew it under opposition from prosecutors.
Peter Vaira, a defense lawyer from Philadelphia who lobbied for the bill, said federal law only permits public indictments when someone is charged with a crime. Pennsylvania should follow the same course because a person’s reputation is protected by the state constitution.
“It’s a serious question whether the grand jury report is due process and it’s never been raised,” Vaira said. “It’s an issue the Supreme Court eventually has to deal with.”
In July, Chief Justice Thomas G. Saylor started a task force to review investigating grand juries. Saylor asked the group, comprising a cross section of the legal community, to assess secrecy rules for lawyers and witnesses, gag orders for lawyers and the role a supervising judge and prosecutor play in the process, according to a news release. Reputation was not among the topics listed and the task force is ongoing.