J. Michael Shane, Olean, movant pro se. Edward M. Sharkey, District Attorney of Cattaraugus County, for plaintiff.
Larry M. Himelein, J.
On March 5, 1935, Alfred Lindsay committed a double murder in Cattaraugus County. He was indicted on March 20, 1935, the trial began on April 1, 1935, a guilty verdict was returned on April 5, 1935, the conviction was affirmed by the Court of Appeals on July 11, 1935 and defendant was executed on July29,
1935. The Court declines to express any opinion on the balance between justice and efficiency in the case.
A Hollywood movie production company is now interested in the story and J. Michael Shane, the son of one of Lindsay's attorneys and himself a practicing attorney, moves for release of the Grand Jury minutes to insure that the story is accurate. Mr. Shane claims the trial transcript is unavailable and any interested parties or their descendants are now deceased. The District Attorney opposes releasing the minutes on the grounds that Mr. Shane lacks standing and because Mr. Shane failed to demonstrate a compelling and particularized need for the minutes. This Court has reviewed the Grand Jury minutes in camera.
The secrecy of Grand Jury minutes is not absolute and it is within the sound discretion of the trial court to release the minutes (see, CPL 190.25  [a]; People v Di Napoli, 27 N.Y.2d 229). A presumption of confidentiality, however, attaches and can be overcome only by a threshold showing of a " compelling and particularized need for access" (People v Fetcho, 91 N.Y.2d 765, 769). If this initial burden is met, " the trial court must then balance the public interest for disclosure against the public interest favoring secrecy" (id.).
The traditional reasons for the confidentiality of Grand Jury minutes include " preserving the reputations of those being investigated by and appearing before a Grand Jury, safeguarding the independence of the Grand Jury, preventing the flight of the accused and encouraging free disclosure of information by witnesses" (People v Fetcho, supra at 769; Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444). However, while numerous cases have addressed releasing Grand Jury minutes for use in litigation, few cases have addressed the issue of general publication to the press or media.
In Matter of Carey v State of New York (68 A.D.2d 220), then-Governor Carey sought to release excerpts from the Grand Jury investigation into the Attica uprising. Doubt had been cast on the integrity of the various prosecutions and the claimed laudable purpose for publication was to provide the public with more information about the criminal justice system, the press, and police response to the riot. Nonetheless, the Fourth Department refused to permit disclosure of the minutes because the reputations of unindicted individuals could be harmed, the nature of the disclosure " far exceed[ed] anything previously authorized by any court," and the public interest was not great enough to justify disclosure (68 A.D.2d at 228-230).
Interestingly, the Fourth Department later allowed disclosure of these documents to (1) the Division of State Police for purposes of departmental discipline, and (2) litigants in the civil lawsuits related to the Attica uprising (see, Matter of Scotti, 53 A.D.2d 282; Jones v State of New York, 79 A.D.2d 273).
In Matter of Grand Jury Investigation (139 Misc.2d 282), the court refused a District Attorney's request to publish the Grand Jury minutes in a matter of heightened public interest. There, as in Carey, unindicted individuals were the subject of investigation and their interests had to be protected by refusing the disclosure request.
In contrast to Grand Jury Investigation and Carey is the more recent case of People v Cipolla (184 Misc.2d 880), which granted a newspaper's application for disclosure of the Grand Jury minutes. There, county officials had been sued civilly in Federal court on the basis that they had caused falsified documents to be presented to the Grand Jury and at the trial that resulted in the acquittal of the criminal defendants. These public officials successfully argued that they needed the Grand Jury minutes to defend against the Federal action. When the local publishing company also moved for disclosure, the court granted the release, reasoning that the Grand Jury record could " reach the public via the ...