Opinion
No. 18 MM 2015
08-26-2015
IN RE: THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY PETITION OF: JOSHUA MORROW
ORDER
AND NOW, this 26th day of August, 2015, upon the request of the supervising judge for removal of the seal from all matters involving the 35th Statewide Investigating Grand Jury and the investigation of Attorney General Kathleen Kane which have been lodged in this Court, save for grand jury materials such as testimony, exhibits, and in camera proceedings, and based on the supervising judge's assurance that there are no present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED that the seal is lifted, in part, upon such terms. PETITION FOR REVIEW PETITION FOR REVIEW OF ORDER OF CONTEMPT AND ORDER OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT BEFORE THE INVESTIGATING GRAND JURY
SEALED
In re The Thirty-Fifth Statewide Investigating Grand Jury (Petition of Joshua Morrow) Supreme Court of Pennsylvania No. 176 M.D. Misc. Dkt. 2012 Montgomery County Common Pleas M.D. 2644-2012 Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
TABLE OF CONTENTS
Table of Citations ............................................................................................... i Introduction ................................................................................................... 1 The Party Seeking Review .................................................................................. 1 Jurisdiction .................................................................................................... 1 The Court Below .............................................................................................. 2 The Orders to be Reviewed .................................................................................. 2 Statement of Objections to the Orders Below .............................................................. 3 The Relief Sought ............................................................................................ 3
Exhibits
Enclosure Letter of William R. Carpenter, Supervising Judge, 35th Statewide Investigating Grand Jury, to Chief Justice Castille regarding Order Appointing Special Prosecutor, May 29, 2014 ........................................ Exhibit 1A 35th Statewide Investigating Grand Jury Subpoena for Testimony, No. 1639, December 3, 2013 .................................................................... Exhibit 1B Disclosure Order, Sealing Order, and Transcript of January 12, 2015 Order ............. Exhibit 1C 35th Statewide Investigating Grand Jury Presentment No. 60 ................................ Exhibit1D Order Accepting Presentment No. 60, by William R. Carpenter, Supervising Judge, 35th Statewide Investigating Grand Jury ................................ Exhibit 1E Opinion of William R. Carpenter, Supervising Judge, 35th Statewide Investigating Grand Jury, December 30, 2014 .............................. Exhibit 1F Philadelphia Inquirer Article, January 8, 2015, "Grand Jury Recommends Criminal Charges Against Kane" .............................................. Exhibit 1G Brief in Support of Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury ....................................................................... Exhibit 2
TABLE OF CITATIONS
Cases Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) .................................................... 2 Commonwealth v. Harris, 32 A.3d 243 (2011) ........................................................... 2 Statutes Pa. R.A.P. 313 ................................................................................................ 2 Pa. R.A.P. 313(a) ............................................................................................ 2 Pa. R.A.P. 341 ................................................................................................ 2 Pa. R.A.P. 1512 ............................................................................................... 1 Pa. R.A.P. 1512(b)(3) ........................................................................................ 2 Pa. R.A.P. 3331(a)(3) ........................................................................................ 1
I. INTRODUCTION
1. This is a Petition for Review by grand jury witness Joshua Morrow from a final contempt order entered on January 12, 2015 by the Court of Montgomery County Court of Common Pleas (Carpenter, J.). The lower court found Petitioner in civil contempt holding that he could not invoke his constitutional rights under the Fifth Amendment rights in response to certain questions posed to him before the grand jury. This Petition for Review is filed under Pennsylvania Rule of Appellate Procedure 3331(a)(3), incorporating the provisions of Rule 1512.
II. THE PARTY SEEKING REVIEW
2. The party seeking review is Joshua Morrow, a witness before the investigating grand jury for Montgomery County.
III. JURISDICTION
3. This is a petition for review of an order finding the petitioner in contempt of court for having respectfully refused to comply with an order entered on the basis of the lower court's finding that the petitioner may not invoke his rights under the Fifth Amendment to the United States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341.
4. Moreover and in the alternative, "orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa. R.A.P. 313." Commonwealth v. Harris, 32 A.3d 243, 251 (2011) (reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999)). Pennsylvania Rule of Appellate Procedure 313(a) provides that "[a]n appeal may be taken as of right from a collateral order of . . . [a] lower court."
5. This Petition for Review is timely as it is filed within ten days of the lower court's contempt order and order that the petitioner may not invoke his constitutional rights under the Fifth Amendment in response to certain questions put to him before the grand jury. Both orders were entered on January 12, 2015. See Pa. R.A.P. 1512(b)(3) (requiring the filing of a petition for review within ten days of the entry of a grand jury order).
6. Accordingly, this Court has jurisdiction over this appeal.
IV. THE COURT BELOW
7. The court below is the Honorable William R. Carpenter of the Montgomery County Court of Common Pleas.
V. THE ORDERS TO BE REVIEWED
8. The orders sought to be reviewed are an order of January 12, 2015, finding the petitioner in civil contempt for refusing to comply with the lower court's order that he testify, and the lower court's order that he may not invoke his constitutional rights under the Fifth Amendment in response to certain questions put to him before the grand jury. In support hereto, attached and incorporated herein is Exhibit 1 to the Petition.
VI. STATEMENT OF OBJECTIONS TO THE ORDERS BELOW
9. Petitioner objects to the orders of the lower court on the ground that the lower court erred in ruling that the petitioner may not rely upon his Fifth Amendment rights in refusing to answer questions before the grand jury.
VII. THE RELIEF SOUGHT
10. Petitioner asks this Court to hold that the Fifth Amendment provided just cause for his refusal to answer certain questions in the grand jury and requests an order reversing the finding of civil contempt. A Brief in Support of this Petition is attached as Exhibit 2 to the Petition. Date: January 22, 2015
Respectfully Submitted,
/s/_________
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
Exhibit 1
Exhibit A
May 29, 2014 The Honorable Ronald D. Castille Chief Justice of Pennsylvania Supreme Court of Pennsylvania 1818 Market Street, Suite 3730 Philadelphia, PA 19103 Re: Statewide Investigating Grand Juries Dear Chief Justice:
Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegation that secret Grand Jury information from a prior Grand Jury was released by someone in the Attorney General's Office.
As the current supervising Grand Jury Judge, this matter was brought to my attention. My preliminary review included in camera sealed testimony from two individuals with knowledge.
I have decided that the matter is important enough to appoint a Special Prosecutor, Thomas E. Carluccio, Esquire. He is a former prosecutor, served in the Department of the Attorney General in Delaware for fourteen years and a Special Assistant United Stales Attorney, In addition Tom has done Grand Jury work, and is honest, capable and reliable.
Please call me if you would like to discuss this matter further.
Please advise if you feel that 1 am in error or have exceeded my authority as the Supervising Gran Jury Judge. Sincerely /s/
William R. Carpenter, J.
Supervising Judge
WRC/cns
Cc. Thomas E. Carluccio, Esquire
Exhibit B
STATEWIDE INVESTIGATING GRAND JURY
SUBPOENA
TO: JOSHUA MORROW
SUPREME COURT OF PENNSYLVANIA
NO. 176 M.D. MISC. DKT. 2012
MONTGOMERY COUNTY COMMON PLEAS
M.D. 2644-2012
1. YOU are ORDERED to appear as a witness before the PENNSYLVANIA STATEWIDE INVESTIGATING GRAND JURY, 1000 Madison Avenue (corner of Trooper and Van Buren Roads), Third Floor, Norristown, Pennsylvania, on Monday, January 12, 2015 through Friday, January 16,2015, at 8:00 O'clock A.M. to testify and give evidence regarding alleged violations of the laws of the Commonwealth of Pennsylvania and to remain until excused.
2. YOU are further ORDERED:
FAILURE to attend may cause a warrant to be issued for your arrest and will make you liable under penalty of law for contempt of Court.
DATED: December 3, 2014
/s/ _________
Hon. William R. Carpenter
Supervising Judge
If you have any questions about your appearance, contact Special Prosecutor Thomas Carluccio, at 484.674.2899.
CERTIFICATION OF SERVICE
I HEREBY CERTIFY that the original subpoena was duty served on. the person uamed herein on this ___ day of __________, 20 ___ at __________ o'clock by handing the same to him/her personally at ____________________ OR Individual accepting service on behalf of witness ____________________ Service accepted at ____________________ NAME of person making service ____________________ TITLE of person making service ____________________ SIGNATURE ____________________ SWORN to and subscribed before me this ___ day of __________, 20 ___. /s/_________
Notary Public
Exhibit C
Exhibit D
IN RE: THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY
SUPREME COURT OF PENNSYLVANIA
NO. 171 M.D.D MISC. KT 2012
MONTGOMERY COUNTY COMMON PLEAS
M.D. 2644-2012
NOTJCE No # 123
TO THE HONORABLE WILLIAM R. CARPENTER, SUPERVISING JUDGE: PRESENTMENT No. #60
We, the Thirty-Fifth Statewide Investigating Grand Jury duty charged to inquire into offenses against the criminal laws of the Commonwealth, have obtained knowledge of such matters from witnesses sworn by the Court and testifying before us. We find reasonable grounds to believe that various violations of the criminal laws have occurred. So finding with no fewer than twelve concurring, we do hereby make this Presentment to the Court.
/s/_________
Foreperson - The Thirty-Fifth Statewide
Investigating Grand Jury
DATED: The 18 day of December, 2014
Exhibit E
ORDER ACCEPTING PRESENTMENT NO #60
A. The Court finds Presentment No #60 of the Thirty-Fifth Statewide Investigating Grand Jury is within the authority of said Grand Jury and is in accordance with the provisions of this Investigating Grand Jury Act, 42 Pa.C.S. §4541, et seq. Further I find that the determination of the Thirty-Fifth Statewide Investigating Grand Jury is supported by Probable Cause and establishes a Prima Facie case against Attorney Genera' Kathleen Kane. Accordingly, this Presentment is accepted by the Court.
B. The County conducting the trial of all charges pursuant to this Presentment shall be Montgomery County.
C. The District Attorney for Montgomery County, or her designee, is hereby authorized to prosecute as recommended in the Presentment by instituting appropriate criminal proceedings in the aforesaid County.
SO ORDERED this 19th day of December, 2014.
BY THE COURT:
/s/ _________
WILLIAM R. CARPENTER, J.
Supervising Judge
Exhibit F
OPINION
CARPENTER J.
DECEMBER 30, 2014
FACTUAL AND PROCEDURAL HISTORY
On May 29, 2014, this Court in its capacity as Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to believe a further more substantive investigation" into allegations that statewide Grand Jury secrecy may have been compromised was warranted, and on that date this Court appointed Thomas E. Carluccio, Esquire as Special Prosecutor.
Specifically, the May 29, 2014 Order followed an in camera proceeding which established that there was a leak of secret Grand Jury information and that the leak most likely came from the Office of the Attorney General. Accordingly, I determined that the appointment of a Special Prosecutor was necessary and appropriate.
ISSUES
I. Whether the appointment of a Special Prosecutor was proper.
II. Whether the Quo Warranto Action is now moot.
DISCUSSION
I. The appointment of a Special Prosecutor was proper.
Attorney General Kathleen Kane has filed a Quo Warranto Action, challenging my action as the Supervising Judge of the Thirty-Fifth Statewide Grand Jury, to appoint a Special Prosecutor by way of an Order dated May 29, 2014, On that date, Special Prosecutor Thomas E. Carluccio was appointed to conduct an investigation into allegations that statewide Grand Jury secrecy might have been compromised, after a preliminary investigation. My action in appointing Special Prosecutor Carluccio was proper. It did not exceed my authority.
My authority for the appointment of a special prosecutor is based upon the case of In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014). This case dealt with the appointment of an special prosecutor in connection with alleged grand jury leaks, and the Court stated that, "[w]hen 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." Id. at 504.
The Court explained the vital role a supervising judge in regard to the grand jury process and emphasized the "[t]he very power of the grand jury, and the secrecy in which it operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court further explained as follows:
We are cognizant that the substantial powers exercised by investigating grand juries, as well as the secrecy in which the proceedings are conducted, yield[ ] the potential for abuses. The safeguards against such abuses are reflected in the statutory scheme of regulation, which recognizes the essential role of the judiciary in supervising grand jury functions.Id. at 503 - 504 (citing from In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 907 A.2d 505, 512 (2006).
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. 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.Id. at 504 (citations and internal quotation marks omitted).
The In re Dauphin County Court cited two cases that involved the appointment of a special prosecutor when there were allegations of grand jury leaks. The Court first cited to a Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com. Pl. 2005).
In the Lackawanna Common Pleas Court case there were allegations made, including, that e-mail communications had been exchanged between the Lackawanna District Attorney's Office and a newspaper reporter that divulged grand jury information, that a grand jury witness had been contacted by the reporter a short time after the witness appeared before the grand jury and was questioned about private matters that had been disclosed only to the grand jury. In re Dauphin County, 19 A.3d at 504. A preliminary review by the common pleas court judge verified only the existence of the emails that were exchanged between the reporter and a member of the District Attorney's office during the time the grand jury was conducting the relevant investigation. It was based upon this review that the common pleas court judge appointed a special prosecutor to investigate the allegations of a grand jury leak. Id.
The Pennsylvania Supreme Court in In re Dauphin County cited an additional example involving a special prosecutor in connection with alleged grand jury leaks and the complex interest and values implicated in an appointment of an special prosecutor. The Court cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937 (2008). In Castellani, the supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in connection with a statewide investigating grand jury tasked with investigating allegations of abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506.
Not only is there strong precedent that permits a supervising judge to appoint a special prosecutor when there are allegations of grand jury leaks; but also, at the time I appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Castille. In that letter, I explained what I had done and I ended the letter with the following language, "Please advise if you feel that I am in error or have exceeded my authority as the Supervising Grand Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my letters to Chief Justice Castille have concluded with similar language. I have never been informed that I erred or exceeded my authority.
The Supervising Judge of a Statewide Investigating Grand Jury must have inherent authority to investigate a grand jury leak, when there is a conflict of interest as there is here. Clearly, Attorney General Kane could not investigate herself. Otherwise potentially serious violations of grand jury secrecy could go unaddressed.
Accordingly, Attorney General Kane's Quo Warranto Action lacks merit, and should be denied.
II. The Quo Warranto Action is now moot.
Further, I believe that this Quo Warranto Action is now moot. On December 18, 2014, the Thirty-Fifth Statewide Investigating Grand Jury issued Presentment No. #60, finding that there were reasonable grounds that Attorney General Kane was involved in violations of criminal law of our Commonwealth. See, Exhibit "B", Presentment No. #60, dated December 18, 2014; specifically, Perjury, 18 Pa.C.SA §4902, False Swearing, 18 Pa.C.S.A. §4903, Official Oppression, 18 Pa.C.S.A. §5301 and Obstruction Administration of Law or Other Governmental Function, 18 Pa.C.S.A. §5101. Subsequently, on December 19, 2014, I entered an Order Accepting Presentment No. #60. See, Exhibit "C", Order Accepting Presentment No. #60, dated December 19, 2014. Furthermore, I referred the entire matter to the District Attorney of Montgomery County for any prosecution. Therefore, this Quo Warranto Action has been rendered moot.
Finally, the Attorney General has requested to "unseal this filing" See, Attorney General Kane's Memorandum of Law in Support of Quo Warranto Action, December 17, 2014, p. 2, n. 1. If her filing is unsealed then, in fairness to the public, the members of the Grand Jury, and members of The Office of Attorney General, my Opinion and Exhibits should also be unsealed,
CONCLUSION
I respectfully submit that Attorney General Kane's Quo Warranto Action lacks merit and should be denied, In addition, it has been rendered moot.
BY THE COURT:
/s/_________
WILLIAM R. CARPENTER J.
SUPERVISING JUDGE OF THE THIRTY
FIFTH STATEWIDE INVESTIGATING
GRAND JURY
Exhibit G
Image materials not available for display.
Exhibit 2
Brief in Support of
Petition for Review
INTRODUCTION
The government's power to compel testimony before grand juries is not absolute. Kastigar v. United States, 406 U.S. 441, 444 (1972). "There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination." Id. (emphasis added).
The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.Id. at 444-45.
The applicable standard to determine the availability of the Fifth Amendment is set forth in Ohio v. Reiner where the Supreme Court stated that the privilege extends to "witnesses who have reasonable cause to apprehend danger from a direct answer." 532 U.S. 17, 21 (2001) (internal quotation marks omitted). "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486 (1951).
Far from requiring an admission of guilt by the witness, the Fifth Amendment standard permits the invocation of the privilege by a witness professing innocence:
[W]e have never held... that the privilege is unavailable to those who claim innocence. To the contrary, one of the Fifth Amendment's "basic functions... is to protect innocent men...' who might otherwise be ensnared by ambiguous circumstances.'"Reiner, 532 U.S. at 21. "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." Grunewald v. United States, 353 U.S. 391, 421 (1957). "Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth." Id. at 422-23.
PROCEDURAL HISTORY
The Thirty-Fifth Statewide Investigating Grand Jury was convened to investigate whether "Grand Jury information from a prior Grand Jury was released by someone in the Attorney General's Office." See Exhibit 1A attached to Petition for Review and incorporated herein. On January 12, 2015, Petitioner testified pursuant to subpoena No. 1369, dated January 7, 2015. See Exhibit 1B attached to Petition for Review and incorporated herein. During the course of his testimony, Petitioner was questioned about the frequency of communication, including text messages, with the Attorney General. In response to these questions, Petitioner invoked his constitutional right against being compelled to be a witness against himself as set forth in the Fifth Amendment of the United States Constitution.
Petitioner also testified on November 14, 2014 and November 21, 2014 pursuant to subpoena dated October 29, 2014, Notice No. 123, Subpoena No. 1497. --------
The parties presented argument to the Honorable William R. Carpenter, supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury. The Special Prosecutor asserted that Petitioner's Fifth Amendment privilege would only relate to whether "he was going to perjure himself, not to implicate himself in a crime" because there was no evidence that Petitioner "had any reason to be obligated by grand jury secrecy" with respect to the leak of information from the prior grand jury. See Exhibit 1C to Petition for Review and incorporated herein, Master Transcript of Proceedings of Grand Jury, January 12, 2015, p.13 (emphasis added). In other words, in the view of the Special Prosecutor, Petitioner invoked the privilege in anticipation of testimony that would be false.
Counsel for Petitioner argued that the issue was not one of anticipatory perjury, but rather, Petitioner refused to testify because any testimony regarding communication with the Attorney General could open the door to or provide a link in a chain of evidence that may support an inference that the Attorney General engaged in an effort with Petitioner to craft his prior grand jury testimony or craft explanations. This would necessarily involve communication between them that previously took place by phone, text and email message, given that Petitioner and the Attorney General did not live or work in the same city. Counsel for Petitioner cited to phone records related to communications between him and the Attorney General that could give rise to this inference. Phone records would reveal that Petitioner and the Attorney General communicated in close proximity to the dates on which he testified before the grand jury.
The court held that Petitioner's exercise of the Fifth Amendment was "illusory, not a proper exercise" of the privilege and held Petitioner in contempt. Id. at p. 14. The court stayed the contempt order "pending review by the higher court." Id. at p. 15.
JURISDICTION
This is a petition for review of an order finding the Petitioner in contempt of court for having respectfully refused to comply with an order entered on the basis of the lower court's finding that the petitioner may not invoke his rights under the Fifth Amendment to the United States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341. Moreover and in the alternative, "orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa. R.A.P. 313." Commonwealth v. Harris, 32 A.3d 243, 251 (2011) (reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999)). Pennsylvania Rule of Appellate Procedure 313(a) provides that "[a]n appeal may be taken as of right from a collateral order of . . . [a] lower court." This petition is timely as it is filed within ten days of both the lower court's contempt order, which was entered on January 12, 2015. See Pa. R.A.P. 1512(b)(3) (requiring the filing of a petition for review within ten days of the entry of a grand jury order). Accordingly, this Court has jurisdiction over this Petition.
STANDARD OF REVIEW
The standard of review is whether the lower court abused its discretion. Commonwealth v. Tielsch, 2001 PA Super 335, ¶ 3, 789 A.2d 216, 217 (2001).
ARGUMENT
Pennsylvania law recognizes that a witness possesses a privilege against self-incrimination. Commonwealth v. Long, 533 Pa. 388, 625 A.2d 630 (1993); Commonwealth v. Field, 231 Pa. Super. 53, 63, 331 A.2d 744, 749 (1974) ("The fifth amendment privilege does apply to grand jury proceedings and the grand jury may not itself violate a valid privilege whether established by the Constitution, statutes or common law."). A witness may not be held in contempt for refusing to testify if the refusal is based on a legitimate exercise of the privilege against self-incrimination. Commonwealth v. Reese, 467 Pa. 107, 354 A.2d 573 (1976). The trial court must evaluate the circumstances to determine whether the proposed use of the privilege is real or illusory. Long, 533 Pa. 388, 625 A.2d 630.
Petitioner's refusal to testify was legitimate, not illusory. By the time that Petitioner testified in January, 2015, the Grand Jury and the Supervising Judge had made several significant findings. On December 18, 2014, the grand jury had already found "reasonable grounds to believe that various violations of the criminal laws occurred" in Presentment No. 60. See Exhibit 1D attached to Petition for Review and incorporated herein. The next day, the Supervising Judge accepted the presentment. See Exhibit 1E attached to Petition for Review and incorporated herein. On December 30, 2014, the Supervising Judge issued an opinion in which he clarified that reasonable grounds existed that "Attorney General Kane was involved in violations of criminal law of our Commonwealth," including "Obstruction [of] Administration of Law or Other Governmental Function, 18 Pa. C.S.A. § 5101" and referred the entire matter to the District Attorney of Montgomery County for any prosecution. See Exhibit 1F attached to the Petition for Review and incorporated herein.
Moreover, the grand jury's findings were no secret to anyone reading a newspaper in the Commonwealth of Pennsylvania, including Petitioner. On January 8, 2015, four days before Petitioner testified, the Philadelphia Inquirer publicly reported that the grand jury and the Special Prosecutor found evidence of wrongdoing and recommended criminal charges against the Attorney General, including perjury and contempt of court. See Exhibit 1G attached to the Petition for Review and incorporated herein.
Thus, at the point in the grand jury proceedings in which Petitioner refused to testify, the Supervising Judge had already determined that probable cause existed that the Attorney General had obstructed justice. The Grand Jury's recommendation that charges be brought was widely circulated by the media, despite the secrecy of grand jury proceedings. The fact that Petitioner communicated with the Attorney General in proximity to the dates that he testified before the grand jury could be used as a link in the chain of evidence of that he and the Attorney General had discussed his prior testimony or that the testimony might have been crafted to cast a certain light.
CONCLUSION
Petitioner's exercise of his constitutional rights under the Fifth Amendment was legitimate and not illusory. For the reasons set forth above, Petitioner respectfully requests this Court find that the lower court abused its discretion and reverse the finding of contempt against Petitioner. Date: January 22, 2015
Respectfully Submitted,
/s/_________
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
215-972-6430
ATTORNEY VERIFICATION I, Catherine M. Recker, Esq., hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.Dated: January 22, 2015
2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903, Philadelphia, Pennsylvania 19103.
3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with the facts and circumstances of this case.
4. This Verification is respectfully submitted in support of Joshua Morrow's Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury and the Brief in Support of the Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury.
5. I hereby state that the facts set forth in the Petition and the Brief in Support attached thereto are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in
this matter. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. §4904.
/s/_________
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document upon the persons below by first class U.S. Mail, which service satisfies the requirements of Pa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Thomas E. Carluccio, Esquire
Special Prosecutor for the Investigating Grand Jury
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462-2484
Date: January 22, 2015
/s/_________
Catherine M. Recker
MOTION TO FILE UNDER SEAL
Petitioner Joshua Morrow, by and through his counsel, Catherine M. Recker, Esq., hereby moves to file the enclosed Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury under seal.
1. Petitioner Joshua Morrow's Petition for Review asks that this Court hold that the Fifth Amendment provided just cause for his refusal to answer certain questions in the grand jury and requests therefore an order reversing the finding of civil contempt.
2. The grand jury proceedings, including the Notes of Testimony of the January 12, 2015 proceedings, are under seal. This Petition for Review, arising out of the grand jury proceedings, should also remain under seal.
3. The annexed Attorney Verification is respectfully submitted in support of this Motion to File Under Seal.
Respectfully Submitted,
/s/_________
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
Dated: January 22, 2015 CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document by U.S. Mail upon the
persons below, which service satisfies the requirements of Pa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Thomas E. Carluccio, Esquire
Special Prosecutor for the Investigating Grand Jury
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462-2484
Date: January 22, 2015
/s/_________
Catherine M. Recker
ATTORNEY VERIFICATION I, Catherine M. Recker, Esq., hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.Dated: January 22, 2015
2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903, Philadelphia, Pennsylvania 19103.
3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with the facts and circumstances of this case.
4. This Verification is respectfully submitted in support of Joshua Morrow's motion to file the enclosed Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury under seal.
5. I hereby state that the facts set forth in this motion are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able
to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904.
/s/_________
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
MOTION FOR EXTENDED TIME TO FILE AN ANSWER
Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
1. This motion is filed under seal.
2. Respondent received a notice from the Supreme Court on February 2. 2015 indicating that Petitioners brief would be due in fourteen (14) days to be extended by three (3) days if service was effectuated by mail.
3. Respondent learned today, February 6, 2015, that the answer to the Petitioner is due on February 9, 2015.
4. Respondent is currently in the process of answering a separate brief for the Supreme Court that is due on February 18, 2015.
5. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed Respondent by phone that she does not oppose this motion.
6. Respondent is requesting a three (3) week extension.
Respectfully Submitted,
/s/_________
Thomas E. Carluccio, Esq.
Attorney ID No.: 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462
(484) 674-2899
Dated: February 6, 2015 cc: The Honorable William R. Carpenter, Judge
Catherine M. Recker, Esq.
ATTORNEY VERIFICATION I, Thomas E. Carluccio, Esq, hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.
2. My office, is located at Plymouth Greene Office Campus, 1000 Germantown Pike. Suite D-3, Plymouth Meeting, Pennsylvania 19462.
3. This Verification is respectfully submitted in support of my Motion For Extended Time To File An Answer Before the Investigating Grand Jury under seal.
4. I hereby state that the facts set forth in this motion are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904.
Respectfully Submitted,
/s/_________
Thomas E. Carluccio, Esq.
Attorney ID No.: 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462
(484) 674-2899
Dated: February 6, 2015 Application for Extension of Time ORDER
AND NOW, this 9th day of February, 2015, the Special Prosecutor's "Motion for Extension of Time to File an Answer" is granted and a response to the Petition for Review shall be filed on or before March 2, 2015.
/s/_________
Deputy Prothonotary
MOTION FOR EXTENDED TIME TO FILE AN ANSWER
Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
1. This motion is filed under seal.
2. Respondents answer is due on March 2, 2015.
3. Respondent avers there are pending issues before this court may render this motion either moot or withdrawn.
4. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed Respondent by phone that she does not oppose this motion.
5. In addition. Opposing Counsel for Petitioner, will be out of the county from March 7, 2015 to March 21, 2015.
6. Respondent is currently preparing for argument before The Supreme Court of Pennsylvania on March 11, 2015.
7. Respondent is requesting a four (4) week extension.
Respectfully Submitted,
/s/_________
Thomas E. Carluccio, Esq.
Attorney ID No.: 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462
(484) 674-2899
Dated: February 27, 2015 cc: The Honorable William R. Carpenter, Judge
Catherine M, Recker, Esq.
CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document by U.S. Mail upon the persons below, which service satisfies the requirements of Pa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Catherine M. Recker, Esquire
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
Dated: February 27, 2015
/s/_________
Thomas E. Carluccio, Esquire
Application for Extension of Time - Second Request ORDER
AND NOW, this 27th day of February, 2015, the Special Prosecutor's "Motion for Extension of Time to File an Answer" is granted and a response to the Petition for Review shall be filed on or before March 30, 2015.
/s/_________
Deputy Prothonotary
Response of the Special Prosecutor in Opposition to the Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
Dated: March 30, 2015 RESPONSE OF SPECIAL PROSECUTOR TO THE PETITION FOR REVIEW OF CONTEMPT ORDER AND ORDER OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT BEFORE THE INVESTIGATING GRAND JURY
Thomas E. Carluccio, Special Prosecutor to the Investigating Grand Jury, hereby responds to the Petition for Review of the Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury: I. INTRODUCTION
1. Admitted. II. THE PARTY SEEKING REVIEW
2. Admitted. III. JURISDICTION
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted. IV. THE COURT BELOW
7. Admitted. V. THE ORDERS TO BE REVIEWED
8. Admitted. VI. STATEMENT OF OBJECTIONS TO THE ORDERS BELOW
9. Denied, as a conclusion of law. VII. THE RELIEF SOUGHT
10. Denied, as a conclusion of law. The Respondent requests that the Contempt Order be upheld. A Brief in support of this response is attached hereto.
WHEREFORE, the Petition for Review of the Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury should be denied.
/s/_________
Thomas E. Carluccio. Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
VERIFICATION
I, Thomas E. Carluccio, Esquire as Special Prosecutor to the Investigating Grand Jury Number 35 appointed by the Pennsylvania Supreme Court, hereby represent that the averments in the foregoing Response of the Special Prosecutor in Opposition to the Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsifications to authorities. Dated: March 30, 2015
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
Memorandum in Support of the Response of the Special Prosecutor in Opposition to the Petition for Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury
INTRODUCTION
Joshua Morrow, Petitioner, has a filed a Petition for Review of the Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment and asserts that the Fifth Amendment supports his refusal toanswer certain questions in the Grand Jury and requests an order reversing the finding of civil contempt. The Thirty-Fifth Statewide Investigating Grand Jury was convened to investigate whether Grand Jury information from a 2009 Grand Jury was released in violation of the Grand Jury Act. During the course of the Investigating Grand Jury, it was determined that the testimony of Joshua Morrow, a political and campaign consultant to Attorney General Kathleen Kane, would be needed.
As such, a subpoena was issued for Joshua Morrow for testimony on November 21. 2014. A follow-up subpoena was issued for Joshua Morrow for testimony on January 12, 2015 for the purpose of correcting testimony provided on November 21, 2014. Morrow did testify before the Grand Jury on January 12, 2015. but anytime a question was raised concerning conversations with Attorney General Kane, Morrow invoked the Fifth Amendment.
A hearing was conducted concerning Morrow's invocation of the Fifth Amendment, followed by an in camera hearing between the Petitioner's Attorney and the Supervising Judge without the presence of the Special Prosecutor. As a result, the parties presented Arguments to the Grand Jury Supervising Judge William R. Carpenter. At the conclusion of the Argument, Judge Carpenter found Mr. Morrow's exercise of the Fifth Amendment was "illusory and not a proper exercise of the privilege and held Petitioner in contempt." On January 12, 2015 Judge Carpenter stayed the contempt order pending the Petitioner's appeal to this court for review, and on January 22, 2015 a timely Petition was filed with the Pennsylvania Supreme Court requesting that the contempt order be overruled.
BACKGROUND
On November 21, 2014, Joshua Morrow testified before the Grand Jury. During that testimony Morrow stated that at the end of April [2014], he had brief phone conversation with Attorney General Kane. At the time of that conversation, Morrow testified that Attorney General Kane asked Morrow to call Adrian King but nothing of substance was discussed, and he further stated that did not know what Attorney General was calling about. (T-6,7). Shortly thereafter, Morrow stated he did call Adrian King, who at the time was serving as First Assistant to Attorney General Kane. Morrow testified that, during this initial conversation, Adrian King stated he had some documents he wanted to give to a reporter and that he would call him back. (T-7). Morrow stated that he believes King told him the documents included a transcript and an internal memo (T-9). Morrow stated he went and picked up the documents from King in an unsealed folder. (T-10). Morrow then stated he met with Chris Brennen of the Daily News at his house and gave him the documents removed from the folder. (T-12 to T-15).
On January 12, 2015, Morrow again testified before the Grand Jury to correct some previous misstatements he made concerning Adrian King in his testimony on November 21, 2014. Morrow now stated that, upon further reflection and research, he found that there was probably no way that he had a long discussion or a substantial discussion with Adrian King about the documents. (T-16) Morrow now testified that the envelope was sealed, and he did not recall having any discussion about the documents with King and he wanted to correct the record. (1-4 to T-6). However, when Morrow was asked questions concerning his conversations or e-mails with Attorney General Kane, Morrow stated throughout his testimony that, 'on advice of counsel, 1 respectfully decline to be compelled to be a witness against myself (T-7). He continued to invoke the Fifth Amendment on any question asked relating to Attorney General Kathleen Kane.
The parties then presented argument to the Grand Jury Supervising Judge, William Carpenter. The Court evaluated whether the invocation of the Fifth Amendment privilege was real or illusory. Commonwealth v. Long 533 Pa. 388, 625 A.2d 630 (1993). After such argument the Judge found Petitioner's exercise of the Fifth Amendment was illusory and not a proper exercise of the privilege and held Petitioner in contempt. The court stayed the contempt order while Petitioner appealed to this court for review.
ARGUMENT
Petitioner assertion of the Fifth Amendment privilege is illusory because there is no crime associated with his answers except Perjury in this proceeding.
"The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118(1951). "It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency." Id. See Also, Commonwealth v. Rolon, 486 Pa. 573 (1979); Commonwealth v. Treat, 848 A.2d 147 (Pa. Super. 2004). The Supervising Judge of the 35th Statewide Investigating Grand Jury made just such a "careful consideration" and determined petitioner's Fifth Amendment claim illusory.
Petitioner claims that since there were charges recommended by the Grand Jury for violations including "Obstruction [of] Administration of Law or Other Governmental Function, 18 Pa. C.S.A. § 5104" that somehow Petitioner could also be implicated in such crimes as a link in the chain since he and Attorney General Kathleen Kane had discussion about these matters. In addition, Petitioner claims to be political/campaign consultant for Attorney General Kane who does not work for or in the Office of Attorney General, and was not a participant in 2009 Grand Jury investigation of J. Wyatt Mondesire.
Petitioner believes that a blanket assertion that he is a "link in the chain" in connecting the leaked documents from the Office of Attorney General to the media is adequate to invoke the privilege. However, the "links in the chain" must involve a chain of criminality for the witness and not just for another. Petitioner has failed to demonstrate how he could possibly be in violation of the Investigating Grand Jury Act, the Criminal History Records Information Act (CHRIA) or any provision of the Pennsylvania Crimes Code as to the release of the OAG emails, memorandums, or transcripts relating to the 2009 Grand Jury Investigation. Any testimony pertaining to these OAG documents would not be incriminating to petitioner; and therefore, the invocation of the Fifth Amendment privilege is illusory. Contrast this to Attorney General Kane who, by virtue of her office, oath and position within the Office of Attorney General (OAG), has a duty and responsibility under, at a minimum, the Criminal History Records Information Act (CHRIA) and the Grand Jury Act to not release such information. These obligations do not extend to Mr. Morrow. Petitioner's assertion of the Fifth Amendment privilege is also illusory since he has already placed himself as a link in the chain of evidence.
Petitioner in his testimony on November 21, 2014 and January 12, 2015 admitted that he was the link in the chain in providing information from Attorney General Kane to the media by delivering documents to a reporter for 'The Philadelphia Daily News' that contained Grand Jury information; specifically, emails, the transcript of OAG Special Agent Michael Milletto (about the Mondesire Grand Jury investigation), and a 2009 internal memorandum from The Office of the Attorney General. As a result, the Petitioner has already admitted under oath that he is a link in the chain of the delivery of the documents. In addition, he testified - albeit in an incomplete and inaccurate manner - about conversations pertaining to the delivery and purpose of these documents. The Petitioner's Admission to being a link in the chain of delivering the documents to 'The Philadelphia Daily News,' and conversations with Attorney General Kathleen Kane could implicate those in the Office of Attorney General who directed the release, but not himself. Petitioner cannot invoke the Fifth Amendment in an effort to shield another from liability. The Petitioner should be compelled to provide pertinent testimony of conversations between the Attorney General and himself as to the delivery of the documents to 'The Philadelphia Daily News.'
Petitioner has no right, privilege, or criminal liability; and therefore, Petitioner's testimony should be compelled to testify about his conversation and actions concerning the delivery of documents to 'The Philadelphia Daily News.' The Judge's Contempt Order should not be overruled.
CONCLUSION
Petitioner's exercise of his constitutional rights under the Fifth Amendment was not legitimate and is illusory. For the reasons set forth above, Respondent respectfully request this Court find that the lower did not abuse its discretion and uphold the Finding of contempt against the Petitioner. Date: March 30, 2015
Respectfully Submitted,
/s/_________
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
ORDER
PER CURIAM
AND NOW, this 18th day of May, 2015, the Application to File Under Seal is GRANTED, and the Petition for Review is DENIED.