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State v. Schmidt5/12/1989
tatute.
The State's contention that only the "drawing" of names must be done in open court and that the public may be excluded at all other times during the impaneling process is not supported by the statute's provisions for publication and conspicuous posting and the underlying policy of openness. We find no merit to the contention that the public is invited only to observe the mechanical act of drawing names from a box. Indeed, even under this very narrow reading of § 612-16(b), the courtroom was closed as the record reflects that the Deputy Public Defender was excluded during the drawing itself.
Nor do we find any merit in the State's argument that denial of public access to the impaneling process is a mere technical violation of the law and not a "substantial failure to comply" within the meaning of HRS § 612-23(b). Allowing the public to observe the impanelment of the grand jury goes to the heart of insuring a fair and impartial grand jury. See Stuart v. State , 522 P.2d 288, 292 (Okla. Crim. App. 1974). As the circuit court observed, " istorically, the grand jury is a screening process to protect the public from corrupt prosecution. The public has a right to know who those screeners are and to observe the process by which they
are selected. To close the door on the public is to deny the basic reason for having the grand jury process." See H. Schwartz, Demythologizing the Historic Role of the Grand Jury , 10 Am. Crim. L. Rev. 701, 702 (1972); State v. Gortmaker , 295 Or. 505, 512, 668 P.2d 354, 357-58 (1983). The exclusion of Mr. Jung from the courtroom during the impanelment of the Kauai Grand Jury clearly constituted a "substantial failure" to comply with the statutory requirements.
The State contends, however, that HRS § 612-23(b) requires the defendant to demonstrate prejudice resulting from the failure to comply with statutory procedures, and Defendant has not shown how the exclusion of the Deputy Public Defender prejudiced him in any way. We conclude that denial of public access to the selection process is presumptively prejudicial and therefore does not require a specific showing of prejudice. It would be difficult, if not impossible, for a defendant to point to a specific injury where he has been excluded from the impanelment proceedings. See State v. Davis , 60 Ohio App. 2d 355, 366, 397 N.E.2d 1215, 1222 (1978). Public access to the impanelment process goes to the heart of safeguarding the integrity of the grand jury. To require the defendant to prove a personal injury would impair or destroy the safeguard. See Territory v. Scharsch , 25 Haw. 429, 436 (1920).
We conclude, therefore, that the trial court's exclusion of the Deputy Public Defender from the courtroom during the impaneling of the Kauai Grand Jury constituted a substantial failure to comply with the requirement of HRS § 612-16(b) that the selection process be conducted "in open court." We further conclude that denial of public access to the impanelment proceedings is presumptively prejudicial and warrants dismissal of the indictment pursuant to HRS § 612-23(b).
The decision of the circuit court dismissing the indictment against the defendant is therefore affirmed.
Disposition
The decision of the circuit court dismissing the indictment against the defendant is therefore affirmed.
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