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Grand Jury Minutes to Be Examined by Judge in Civil Case
New York Law Journal
In the latest application of a recent U.S. Supreme Court decision addressing disclosure of grand jury minutes in civil rights cases, a judge in Brooklyn has ordered state prosecutors to turn the records over to a federal court for in camera inspection.
The case before Acting Brooklyn Supreme Court Justice Dineen Riviezzo centers on a man who lodged a federal civil rights case, with a pendent state law malicious prosecution claim, related to a drunken driving arrest. Since he alleges the indictment accusing him of driving while intoxicated was procured through perjury and fraud, the grand jury minutes could be crucial to his claim.
Yet in the wake of the U.S. Supreme Court’s decision last year in Rehberg v. Paulk, 132 S. Ct. 1497, that grand jury witnesses must be afforded the same immunity as trial witnesses, it remains unclear under what circumstances records can be unsealed as evidence in a subsequent civil case.
Eastern District Magistrate Judge James Orenstein, in Bonelli v. City of New York, 11-cv-0395 (2012), seemingly held that Rehberg bars the disclosure of grand jury minutes to support a pendent state malicious prosecution claim.
A month later, in Maldonado v. City of New York, 11-cv-03514 (2012), Southern District Magistrate Judge Henry Pitman said that the unsealing of grand jury records under state law is governed by state law.
Most recently, the U.S. Court of Appeals for the Second Circuit, in Marshall v. Randall, 719 F.3d 113 (2013), held that grand jury testimony could be used to impeach police officers in a §1983 claim, Rehberg notwithstanding.
In the matter before Riviezzo, Lloyd Maitland was charged in 2012 with driving drunk with underage children in his vehicle, a state law felony.
Police officers testified that Maitland was stopped for a traffic infraction and was then found to be drunk. But a witness testified that Maitland was a passenger in a vehicle driven by his wife, not the driver, and he was acquitted of all charges.
Maitland, a commercial truck driver who was unable to work for a year before the DWI case was resolved, responded with a lawsuit in the Eastern District alleging violations of his civil rights under federal law as well as malicious prosecution under state law (Maitland v. City of New York, 13-cv-2807). His attorneys, David Rankin and Robert Quackenbush of Rankin & Taylor in Manhattan, sought the grand jury minutes, arguing that the records were crucial to the malicious prosecution claim.
Riviezzo said state law, not Rehberg, determines whether grand jury records can be unsealed in a state-based case.
“As perjury or false testimony before the Grand Jury must be established in cases such as the present case, it would appear that disclosure of Grand Jury minutes would be warranted in an appropriate case to establish a malicious prosecution claim under New York law,” Riviezzo wrote in Matter of Maitland, 2312/2011. “Rehberg does not create a substantive, New York state immunity from civil liability for false Grand jury testimony—it is based on common law concepts with which New York state courts are free to diverge.”
Additionally, Riviezzo said, since the indictment against Maitland “was almost certainly based on the testimony of police officers, the need for maintaining secrecy is clearly not pronounced, as it would be in cases involving confidential witnesses.”
But Riviezzo said Eastern District Magistrate Judge Vicktor Pohorelsky, who is presiding over the case, should determine “the extent to which disclosure of the Grand Jury minutes should be allowed, and the timing of that disclosure,” after in camera review.
“That Court is in the best position to identify when and how the pendent state claim will be tried in the context of the broader federal action, and that court is in the best posture to determine which witnesses’ testimony should be disclosed,” Riviezzo wrote.
Quackenbush in an interview said that since malicious prosecution cases frequently involve allegations of perjury before a grand jury, it has become “incredibly difficult,” since Rehberg, to make a case.
“We took the point here that, regardless of what Rehberg says about federal claims, there is nothing in Rehberg that applies to state common law,” Quackenbush said. “This is basically the first recognition I am aware of that Rehberg does not apply to malicious prosecution claims under New York law.”
Assistant Brooklyn District Attorney Maria Park represented the prosecution. The Brooklyn District Attorney’s Office declined comment.
@|John Caher can be reached at firstname.lastname@example.org.