In re Investigation

IN RE: GRAND JURY INVESTIGATION

Docket: 1977GJO0065

Commonwealth of Massachusetts Superior Court

April 22, 2020

Dates: April 22, 2020

Present: /s/Jeffrey T. Karp Associate Justice, Superior Court

County: ESSEX, ss.

Keywords: MEMORANDUM OF DECISION AND FURTHER ORDER ON EMERGENCY MOTION FOR RELIEF FROM JUDGMENT AND IMMEDIATE RELEASE IN RESPONSE TO COVID-19 PANDEMIC

The Grand Jury is investigating a murder that allegedly occurred in Essex County. Upon the application of the Commonwealth, John Doe ("Doe")¹ was granted immunity pursuant to G.L. c. 233, § 20E, and ordered to testify before the Grand Jury. He refused to do so. On August 13, 2019, the Court adjudged Doe in contempt pursuant to G.L. c. 233, § 20H, and committed him to the Essex County House of Correction ("ECHOC") until further order. Thereafter, Doe refused to purge the finding of contempt by testifying before the Grand Jury and remained committed to the ECHOC.

On April 13, 2020, in response to the Covid-19 pandemic, Doe filed an Emergency Motion For Relief From Judgment And Immediate Release In Response To Covid-19 Pandemic (Paper No. 19) ("Motion"), in which he seeks relief from the contempt "judgment" pursuant to Mass. R. Civ .P. 60(b)(6) and immediate release from custody. The Commonwealth opposes the requested relief and Doe's release from custody. (See Paper Nos. 20 and 21).

On April 15, 2020, the Court conducted a hearing on the Motion. On April 16, 2020, the Court allowed the Motion and issued an Order On Emergency Motion For Relief From Judgment And Immediate Release In Response To Covid-19 Pandemic. (Paper No. 21).

The Court now sets forth its reasons for allowing the Motion and issues a further Order thereon.

BACKGROUND & PROCEDURAL HISTORY

As stated, the Grand Jury in this matter is investigating a murder that allegedly occurred in Essex County. The Commonwealth believes Doe has material information that would assist in the investigation and seeks his testimony before the Grand Jury.

In July 2019, the Court issued a material witness warrant for Doe's arrest and appearance before the Grand Jury. See G.L. c. 277, § 70 (authorizing issuance of warrant for appearance of witness).

On July 19, 2019, Doe was arrested on the warrant and brought before the Court. Over the Commonwealth's objection, the Court released Doe on conditions of release and ordered him to appear and testify before the Grand Jury on July 22, 2019.² See G.L. c. 276, §§ 45, 47 (authorizing bail or recognizance for witness to appear in future).

On July 22, 2019, Doe appeared with counsel before the Grand Jury and refused to testify on self-incrimination grounds. Upon the application of the Commonwealth, the Court (Feeley, J.) granted Doe immunity pursuant to G.L. c. 233, § 20E, and ordered Doe to appear and testify before the Grand Jury on July 31, 2019. The conditions of Doe's release remained in place.

On July 31, 2019, Doe again appeared with counsel before the Grand Jury and refused to testify, notwithstanding the grant of immunity. After hearing, the Court released Doe on the same conditions of release over the Commonwealth's objection and ordered him to appear for a contempt hearing on August 13, 2019.

On August 2, 2019, at the request of the Commonwealth the Court found cause to believe Doe violated the conditions of his release and issued a warrant for Doe's arrest.³ Later that day, Doe was arrested on the warrant and brought before the Court. The Court conducted a hearing (at which Doe was represented by counsel), revoked the conditions of release, and ordered Doe committed to the ECHOC until the contempt hearing.

On August 13, 2019, the Court conducted a contempt hearing pursuant to G.L. c. 233, § 20H. Doe appeared and was represented by counsel. No witnesses were called to testify and the Commonwealth submitted three exhibits. The Court adjudged Doe to be in contempt. On August 14, 2019, Doe appeared before the Court for a hearing on disposition and the Court ordered him committed to the ECHOC "until further order of the court."

On November 13, 2019, Doe appeared before the Court for a status hearing and continued to refuse to purge the finding of contempt by testifying before the Grand Jury.

On March 10, 2020, "the Governor declared a state of emergency to support the Commonwealth's response to the threat of COVID-19. On March 11, 2020, the World Health Organization formally declared the expanding spread of the COVID-19 virus a global pandemic." Committee for Public Counsel Services v. Chief Justice of the Trial Court, 484 Mass. 431, 433 — 434 (2020) ("CPCS").

In response to the pandemic, beginning on March 13, 2020, the SJC "issued a series of orders with respect to court proceedings, new filings, and trials, designed to 'protect the public health by reducing the risk of exposure to the virus and slowing the spread of the disease." Id. at 434. Pursuant to these orders, the Superior Court issued a series of standing orders that, in combination with the SJC's orders, prohibits grand jury proceedings, including this one, from March 13 through at least July 6, 2020. See Superior Court Standing Order 4-20.

As stated, on April 15, 2020, the Court conducted a hearing⁴ on the Motion and, on the next day, issued an Order allowing the Motion.

DISCUSSION

As stated, Doe argues that the risk of harm to him due to the potential spread of Covid-19 within the facility at which he is committed warrants his immediate release from confinement. Doe cites Mass. R. Civ. P. 60(b)(6) as the basis for granting the relief he seeks.

I. STATUTORY IMMUNITY FRAMEWORK

Some discussion is warranted regarding the framework of statutory immunity in criminal proceedings.

When a witness "validly refuse[s]" on self-incrimination grounds to testify before a grand jury that is investigating certain enumerated offenses, including murder, the Commonwealth may request an order granting immunity to the witness. G.L. c. 233, § 20E(a). The witness is entitled to appointment of counsel and a hearing, which is closed to the public, before the request is approved. G.L. c. 233, § 20E(a) — (b). A grant of immunity under the statute results in the witness being granted full "transactional" immunity from any prosecution brought in the Commonwealth's courts, and "use" immunity in any prosecution brought in another state or by the Federal government.⁵,⁶ In re Vaccari, 460 Mass. 756, 758 (2011); see also G.L. c. 233, § 20G.

Thereafter, a witness granted immunity "shall not be excused from testifying .. . on the ground that the testimony or evidence required of him may tend to incriminate him." G.L. c. 233, § 20C. Moreover, the "grant of immunity, and the resultant duty to testify, [ ] extend[s] to successive grand juries." Commonwealth v. Raczkowski, 19 Mass. App. Ct. 991, 992 (1985) (citation omitted).

If an immunized witness refuses to testify, "the [Commonwealth] shall institute contempt proceedings against such witness." G.L. c. 233, § 20H. Furthermore, "after hearing or trial, if such witness is adjudged in contempt of court, he shall be punished by imprisonment in the house of correction for a term not to exceed one year or until he complies with the order of the court, whichever occurs first." Id. (emphasis added). Notwithstanding, the reference to "punishment" in § 20H, the sentence imposed upon a finding of contempt is civil, rather than criminal, in nature because it "[i]s coercive and not punitive in nature." Commonwealth v. Steinbera, 404 Mass. 602, 608 (1989) (citing Shillitani v. United States, 384 U.S. 364, 368-370 (1966); Raczkowski, 19 Mass. App. Ct. at 992). In fact, as has been frequently observed, the contemnor holds the keys to the jail because he may terminate his confinement by testifying. See Shillitani, 384 U.S. at 368 ("the petitioners carry 'the keys of their prison in their own pockets") (citation omitted).

With respect to the appeal of a finding of contempt under § 20H, "[t]he rules of practice and procedure relative to criminal appeals as provided by the Massachusetts Rules of Criminal Procedure and the Massachusetts Rules of Appellate Procedure [ ] apply." G.L. c. 233, § 20H. However, loyders compelling nonparty witnesses to testify in criminal cases are interlocutory orders and generally not appealable. The usual way of challenging such orders is to disobey them and appeal from the subsequent contempt order." In re Vaccari, 460 Mass. at 758 (citations omitted) (emphasis added) (affirming denial of request for extraordinary relief under G.L. c. 211, § 3, because no irreparable harm shown).

II. THE ORDER OF COMMITMENT UNDER § 20H IS AN INTERLOCUTORY ORDER WHICH THIS COURT MAY NOW STAY

With the above framework in mind, the Court will address the merits of the Motion. As stated, Doe argues that Rule 60(b)(6) of the Rules of Civil Procedure may serve as a basis for the relief he seeks. On the other hand, the Commonwealth argues that the rules of criminal, not civil, procedure apply in contempt actions under § 20H. The Commonwealth further argues Doe's remedy was to file a motion to revise and revoke under Mass. R. Crim. P. 26, and it is too late for him to bring such a motion. However, the Court concludes the parties' arguments are equally misplaced.

As stated above, this Court's order under G.L. c. 233, § 20H, of August 14,2019, committing Doe to the ECHOC is an interlocutory order, not a final order or judgment. In re Vaccari, 460 Mass. at 758. In fact, the interlocutory nature of a "sentence" of incarceration under § 20H is clear given that the contemnor may purge the finding of contempt and be freed from custody at any time as soon as he testifies. Therefore, even if the civil, rather than criminal, rules of procedure govern, as Doe argues, Mass. R. Civ. P. 60(b) does not apply because, on its face, it only applies to a "final judgment, order or proceeding." Mass.R.Civ.P. 60(b) (emphasis added). No such final judgment or order entered here. To be sure, the Court's Order of August...