In California, I was familiar with Grand Juries investigating various government activities, sometimes uncovering wrong doing or mismanagement.
Grand Juries have the power to subpoena and compel testimony, with witnesses facing possible perjury charges if caught in a lie.
In the aftermath of the probable leak of personnel documents by a member of the Batavia City Council to the Daily News, the question came up: Who has the power to investigate something like this?
I sent an e-mail to District Attorney Lawrence Friedman and asked him about the authority of Grand Juries in New York. Here's his answer:
I have copied and pasted below two sections from the NYS Criminal Procedure Law, with relevant provisions in bold print. While the alleged conduct might constitute "misconduct in public office by a public servant," the Grand Jury certainly does not investigate every claim of "misconduct... by a public servant." In fact, in my nearly 28 years in the District Attorney's Office, I can only recall one such Grand Jury investigation. I think that this is based in large part on the belief that such matters can usually be dealt with more effectively through internal means, rather than involving a Grand Jury.
The code sections come after the jump below.
NOTE: The purpose of this post is not to call for a Grand Jury investigation. That is a major step and could have significant consequences. But I asked the question, got an answer and thought I should make the information available.
§ 190.55 Grand jury; matters to be heard and examined; duties and authority of district attorney.
1. A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.
2. District attorneys are required or authorized to submit evidence to grand juries under the following circumstances:
(a) A district attorney must submit to a grand jury evidence concerning a felony allegedly committed by a defendant who, on the basi of a felony complaint filed with a local criminal court of the county, has been held for the action of a grand jury of such county, except where indictment has been waived by the defendant pursuant to article one hundred ninety-five.
(b) A district attorney must submit to a grand jury evidence concerning a misdemeanor allegedly committed by a defendant who has been charged therewith by a local criminal court accusatory instrument, in any case where a superior court of the county has, pursuant to subdivision one of section 170.25, ordered that such misdemeanor charge be prosecuted by indictment in a superior court.
(c) A district attorney may submit to a grand jury any available evidence concerning an offense prosecutable in the courts of the county, or concerning misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise
§ 190.85 Grand jury; grand jury reports.
1. The grand jury may submit to the court by which it was impaneled, a report:
(a) Concerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action; or
(b) Stating that after investigation of a public servant it finds no misconduct, non-feasance or neglect in office by him provided that such public servant has requested the submission of such report; or
(c) Proposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings.
2. The court to which such report is submitted shall examine it and the minutes of the grand jury and, except as otherwise provided in subdivision four, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subdivision one and that:
(a) The report is based upon facts revealed in the course of an investigation authorized by section 190.55 and is supported by the preponderance of the credible and legally admissible evidence; and
(b) When the report is submitted pursuant to paragraph (a) of subdivision one, that each person named therein was afforded an opportunity to testify before the grand jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (b) or
(c) of subdivision one, it is not critical of an identified or identifiable person.
3. The order accepting a report pursuant to paragraph (a) of subdivision one, and the report itself, must be sealed by the court and may not be filed as a public record, or be subject to subpoena or otherwise be made public until at least thirty-one days after a copy of the order and the report are served upon each public servant named therein, or if an appeal is taken pursuant to section 190.90, until the affirmance of the order accepting the report, or until reversal of the order sealing the report, or until dismissal of the appeal of the named public servant by the appellate division, whichever occurs later. Such public servant may file with the clerk of the court an answer to such report, not later than twenty days after service of the order and report
upon him. Such an answer shall plainly and concisely state the facts and law constituting the defense of the public servant to the charges in said report, and, except for those parts of the answer which the court may determine to be scandalously or prejudicially and unnecessarily inserted therein, shall become an appendix to the report. Upon the expiration of the time set forth in this subdivision, the district attorney shall deliver a true copy of such report, and the appendix if any, for appropriate action, to each public servant or body having removal or disciplinary authority over each public servant named therein.
4. Upon the submission of a report pursuant to subdivision one, if the court finds that the filing of such report as a public record, may prejudice fair consideration of a pending criminal matter, it must order such report sealed and such report may not be subject to subpoena or public inspection during the pendency of such criminal matter, except upon order of the court.
5. Whenever the court to which a report is submitted pursuant to paragraph (a) of subdivision one is not satisfied that the report complies with the provisions of subdivision two, it may direct that additional testimony be taken before the same grand jury, or it must make an order sealing such report, and the report may not be filed as a public record, or be subject to subpoena or otherwise be made public.
