Review of the judgment of the Court of Appeals in 45 Kan.App.2d 744, 250 P.3d 286 (2011) . Appeal from Wyandotte District Court; JACK L. LIVELY, judge.
BY THE COURT
1. The Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights guarantee that a person shall not be compelled in a criminal case to be a witness against himself or herself. The constitutional right against self-incrimination means that no person shall be compelled to answer official questions put to him or her in any proceedings--civil or criminal, formal or informal--where the answers might incriminate that person in future criminal proceedings.
2. For witnesses appearing before a grand jury, K.S.A. 22-3008(4) specifically codifies the constitutional right against self-incrimination in those proceedings.
3. Unless the district court determines, pursuant to K.S.A. 22-3008(3), that a grand jury witness claiming the right against self-incrimination is bound to answer a particular question, a prosecutor commits constitutional error by continuing to question the witness in front of the grand jury after the witness has unequivocally invoked his or her rights against self-incrimination.
4. In this case, a Kansas Bureau of Investigation agent acting as chief investigator for the grand jury and a witness called by the prosecutor violated the constitutional and statutory rights against self-incrimination of another grand jury witness who had unequivocally and successfully invoked his rights against self-incrimination when the agent testified that the grand jury should draw an adverse inference from the witness' silence.
5. The Fifth and Fourteenth Amendments to the United States Constitution protect an individual's due process rights and prohibit the deprivation of a significant life, liberty, or property interest. The target of a grand jury investigation has a significant liberty interest at stake and is entitled to due process protection. The essence of due process is fairness between the State and the individual dealing with the State. A State's administration of justice is subject to proscription under the Due Process Clause of the Fourteenth Amendment to the United States Constitution if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
6. Kansas statutes governing grand jury proceedings contemplate the due process mandate that an indictment should issue only where it is based on legal evidence, rather than suspicion or conjecture.
7. Once the accused in an indictment has established the existence of constitutional violations and abuse of process in the grand jury proceedings, the State, as the party benefitted by the errors, carries the burden to establish that the errors were harmless.
8. A district court has the authority to dismiss a grand jury indictment if the accused was prejudiced by misconduct during the proceedings. The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict. If violations did substantially influence the grand jury's decision to indict, or if there is grave doubt as to whether the decision to indict was free from such substantial influence, the violations or errors cannot be deemed harmless.
Jerome A. Gorman, district attorney, argued the cause, and Steve Six, attorney general, was with him on the briefs for appellant/cross-appellee.
James L. Eisenbrandt, of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, of Kansas City, Missouri, argued the cause, and Christina M. DiGirolamo, of the same firm, and Arthur A. Benson II, pro hac vice, of Law Offices of Arthur Benson & Associates, of Kansas City, Missouri, were with him on the briefs for appellee/cross-appellant.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, was on the brief for amicus Kansas Association of Criminal Defense Lawyers.
JOHNSON, J. MORITZ, J., not participating.
[300 Kan. 663] Johnson, J.:
Rodney Turner seeks review of the Court of Appeals decision that reversed the district court's dismissal of a multiple-count indictment returned against him by a citizen-initiated [300 Kan. 664] grand jury. The petition to convene the grand jury alleged wrongdoing by the officers and directors of the Board of Public Utilities (BPU) of the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). Turner, an attorney who did consulting and legal work for BPU, was indicted by the grand jury on 2 counts of theft and 55 counts of presenting a false claim, based upon the theory that he had not
performed the work for which he had submitted monthly invoices to the BPU.
The district court granted Turner's motion to dismiss the indictment, finding that Turner had been prejudiced by grand jury abuses and violations of his constitutional rights. But the Court of Appeals reversed the dismissal, finding that Turner did not possess the full panoply of constitutional rights at the investigatory proceedings by the grand jury and that the constitutional violations that did occur during the grand jury proceedings did not prejudice Turner because the record contained sufficient evidence to establish probable cause to support the indictments. State v. Turner, 45 Kan.App.2d 744, 250 P.3d 286 (2011). Because the record before us establishes grave doubt that the grand jury's decision to indict was free from the substantial influence of the abuses of process and constitutional violations caused by the State's agents during the grand jury proceedings, we reverse the Court of Appeals and affirm the district court's dismissal of the indictment.
Factual and Procedural Overview
In January 2008, T.J. Reardon filed a petition to summon a grand jury in the District Court of Wyandotte County for the purpose of investigating claims relating to the BPU and Unified Government. The petition set forth allegations that BPU executives and directors, as well as city and county officials, had violated the law and misappropriated public funds in various ways. The petition did not specifically refer to Turner or allude to the consulting and legal work that he performed for BPU, albeit one of the statements in the petition directed that " BPU no-bid contracts and fixing with possible bribery charges should be investigated."
The grand jury was convened in March 2008. The Court of Appeals referred to the grand jury proceedings as " a 6-month investigation," [300 Kan. 665] 45 Kan.App.2d at 761-62, but the record indicates that the grand jury actually convened 17 times between its first meeting on March 5, 2008, and its last session on August 27, 2008; i.e., the grand jury averaged approximately 3 days in session per month. Wyandotte County District Attorney Jerome Gorman (DA) and Assistant District Attorney Kristiane Gray (ADA) presented evidence, examined witnesses, and provided legal advice during the grand jury proceedings. Special Agent William Delaney of the Kansas Bureau of Investigation (KBI) was assigned to investigate matters for the grand jury and played an integral role in the proceedings, testifying before the grand jury on 10 of the 17 days it was in session. The agent often advocated for an indictment against Turner, at times intimating that such an indictment might lead to a resolution of an unrelated 20-year-old murder case.
During his appearance on the first day of the proceedings, Delaney directed the grand jury's attention toward Turner by characterizing his consulting and legal work arrangement with BPU as an example of a " no-bid contract" to which the petition had referred. Subsequently, the grand jury would be presented evidence that from 2003 through 2008, Turner had submitted monthly invoices to BPU that totaled in the neighborhood of $400,000. The invoices were routinely approved by both the general counsel and the general manager of BPU, notwithstanding that they contained only the number of hours worked and the hourly rate, without a detailed itemization of the nature of work performed. The general counsel, Marc Conklin, was also a target of the investigation.
The State called several witnesses, including two former executive assistants to BPU's general manager, two Board members, and an attorney who was acquainted with Turner, to testify that they did not know the nature of the work that Turner had actually performed for BPU. But other Board members, including the Board's secretary, testified about the nature of Turner's work for BPU of which they were aware, as did the former general manager of BPU who served from 1995 to 2005. The current BPU general manager opined that the amount of money paid to Turner was not out of line in comparison with what BPU spent on attorney fees and that he had accepted the general counsel's explanation that [300 Kan. 666] Turner " was offering a lot of legal advice and counsel to [the general counsel] and that [the general counsel] valued [Turner's] legal opinions."
At that first grand jury session, in response to a juror's question about when the agent had begun his BPU investigation, Delaney referred to a 20-year-old murder case that remained open. Delaney added that he remained interested in " BPU people because of some interest in another case that I probably can't discuss or shouldn't discuss on this Grand Jury."
Nevertheless, at the next session, Delaney told the grand jury that he had been " concerned and interested in BPU because some of the people that we were hearing were involved in the BPU we thought were involved in a murder case in Wyandotte County." Delaney then told the grand jury about that murder case, namely that Chuck Thompson, a local politician and attorney, was murdered in December 1987, and the case remained unsolved. Delaney further related that he was again approached in 2005 to do an investigation of BPU and that Turner's name continued to come up on both the BPU investigation and the Thompson murder. The agent spoke of doing interviews on the " Thompson case/BPU case" and tied Turner to both cases by telling the grand jury:
" [Y]ou guys know, that there is some kind of legal work or some kind of work being done by Rod Turner I think over a period of 2003 to 2005. I think I saw the figures over $400,000 worth of work. All we've seen is invoices. I would be interested to see what's behind those invoices, what's causing those invoices, 40 hours a week at $150 an hour. He's got--I would think he would be able to justify why he's submitting those bills to the BPU.
" I think that's a very interesting area that you really ought to look at pretty closely. Again, we have an interest in Turner because supposedly he had information about this other case."
The agent went on to intimate that Turner was a dangerous person by telling the grand jury he had warned Reardon, the instigator of the grand jury petition, that he was " dealing with people that you need to be concerned about, don't put yourself in a position where you can become like a Chuck Thompson."
When the grand jurors were provided an opportunity to ask their own questions of Delaney, the following exchange took place:
[300 Kan. 667] " GRAND JUROR 392119: On the Chuck Thompson, I'm not even going to ask you to get into detail there. I don't think it's fair or relevant. But are you finding it easier to tie this all together?
" [DELANEY]: Some of the same names that came up in that have come up in this. And it's always been the people that probably weren't directly involved but people that are behind the scenes. That's the information, without getting in a lot of detail on the homicide, but these same names are coming up.
. . . .
" GRAND JUROR 406292: If we get Rod Turner in here and ask him about the $400, and is there something else--something else you might be licking your chops on?
" [DELANEY]: He wouldn't talk to us about the homicide. I would like to talk to him about the homicide, but I don't think he would be cooperative."
Delaney concluded his testimony at the April 2 session by reiterating that his agenda was to " solve the Thompson murder and help resolve the BPU issues if possible. And somewhere in between we'll find the right mix hopefully." He said that whenever he interviews someone on the BPU matter, he always asks about the Chuck Thompson murder.
Delaney next appeared two sessions later, on April 16, and provided an update on his witness interviews, after which the following exchange occurred with the assistant district attorney:
" [PROSECUTOR]. Obviously, you have a lot more experience in investigating things than any of us do. And obviously, you got a tremendous amount of information that you have been working on and a--
. . . .
" [PROSECUTOR]. What would be your suggestion as far as things that we can look into or direction that you think that we should take? . . .
" [DELANEY]. . . . In all seriousness, obviously, I have kept a file open for a long time for a reason.
. . . .
" The Rod Turner thing, I got to tell you guys, there has got to be an answer to why is he getting paid the money that he's getting paid. We're being told by many, many people that he's not doing nothing. Whether that's filing false claims, I think you need to seriously look at it. . . . I think you ought to bring Rod Turner in. I don't think that he will talk. I don't know."
After Delaney relayed his thoughts to the grand jury on where they should focus their investigation and explained that the grand jury only had a limited time to act, a grand juror again brought up the Chuck Thompson murder:
[300 Kan. 668] " 419001: In your heart you mentioned the murder at Jalisco. In your heart, do you think there is any kind of relationship here?
" A. As I told you the first time I testified or when I testified about that issue, some of the same names in that case are coming up today. I will leave it at that. Murder is--there is never a statute of limitations and I have been working on it for 20 years and, you know, sometimes people get in a bind and get charged or indicted and ...