HARRISBURG — In the spring of 2017, a lawyer representing two Catholic dioceses targeted in a statewide investigation of clergy sex abuse leveled a legal challenge to the grand jury process in Pennsylvania.
The lawyer, Matt Haverstick, questioned a grand jury procedure that prevented attorneys for witnesses from discussing testimony with one another and coordinating strategy. The judge supervising the grand jury in the case rejected the request, noting the rule was designed to preserve evidence and prevent witness tampering.
Weeks later, the state Supreme Court empaneled a new task force to review the scope and powers of Pennsylvania grand juries. The panel members and court officials won't discuss details of its meetings or progress, but two of its areas of focus — examining gag orders and swearing attorneys to secrecy – paralleled Haverstick's arguments.
And in October, a veteran state senator from Montgomery County began pushing for legislation to address "the secrecy of grand juries, the role of the supervising judge, the rights of witnesses, and the rights of the person being investigated."
Supreme Court officials, legislative aides, and others say there is no connection among the three efforts. But together they reflect a growing, if not unprecedented, challenge to a system that Pennsylvania prosecutors have used to build some of their biggest cases — including sweeping corruption investigations and child sexual abuse cover-ups like the one that now looms over six dioceses.
"There is an attack on the grand jury, and it's not just this Catholic grand jury," said Northampton District Attorney John Morganelli. "Grand juries historically have done good things. Yeah, it is true they have criticized people, but it was fair criticism."
Others, such as Peter Vaira, a onetime U.S. attorney in Philadelphia turned defense lawyer, contend these efforts are long overdue. Vaira said state law falls short when it comes to ensuring that people who are not criminally charged have ample opportunity to protect their reputations.
"This is purely a legal issue — a pure civil liberties issue," said Vaira, who has met with the Supreme Court task force on the topic.
The use of grand juries to secretly gather evidence and build criminal cases isn't an uncommon practice nationwide. And questions over issues such as swearing attorneys to secrecy or shielding the details of investigations from public view have bubbled before — including in the probe of a police shooting in Ferguson, Mo., and in the Jerry Sandusky child abuse case, in which Vaira represented one Pennylvania State University administrator.
But it's unclear how many states have laws like Pennsylvania's, which allow grand juries to issue reports to identify, criticize, and implicate people who have not been charged with crimes. Alaska grappled with similar issues three decades ago, and ultimately set up a process that allows people to challenge their inclusion in grand jury reports.
In Pennsylvania, which enacted its current law in 1980, prosecutors often have used grand juries to spotlight public corruption and organized crime, at times presenting recommendations for policy changes when crimes fall outside the statute of limitations for bringing charges.
Over the course of an investigation, a group of 23 grand jurors meets in private – usually for 18 to 24 months – to hear testimony and weigh potential evidence on complicated crimes or issues of public importance. At the end, and often with heavy input from prosecutors, the panel may issue a report documenting its findings, recommendations for charges – or steps for improving public policy.
People who are criticized in reports often have a chance to submit a written response for public release but usually don't get access to all the evidence and can't cross-examine witnesses.
Defense attorneys argue that the process hampers their ability to properly serve their clients, while prosecutors say it is essential for building complex cases. In investigations of crimes that occurred outside the statute of limitations, the grand jury room might offer "the only time the victims have a voice," said Greg Rowe, legislative liaison for the Pennsylvania District Attorneys Association.
Lynne Abraham, when she served as Philadelphia district attorney, became the first prosecutor in Pennsylvania to use the system to expose decades-old clergy sex abuse. She released a 424-page report in 2005 that identified dozens of abusers and called out Archdiocese of Philadelphia leaders for ignoring, concealing, or enabling the attacks by simply reassigning problem priests. Because of what the grand jury described as weaknesses in the law, only one priest was charged.
"Our report names names," Abraham said in an interview. "We published our report and the judge allowed it, and nobody objected."
But critics say defense lawyers who routinely practice before grand juries have privately complained for years that prosecutors — particularly state prosecutors — have deployed increasingly aggressive tactics that trample on defendants' rights, as they claim is occurring in the clergy abuse investigation.
Abraham's report became a blueprint for other clergy sex-abuse investigations. It also set the stage for the state Attorney General Office's high-profile inquiry into the dioceses in Pittsburgh, Allentown, Harrisburg, Erie, Scranton, and Greensburg.
A version of its 800-page grand jury report could be released as soon as Wednesday, if lawyers on both sides agree to temporary redactions pertaining to clergy members who have challenged their inclusion in the report.
Many of the issues raised in their cases seem to mirror those bubbling up before the Supreme Court's task force and the legislature.
As Attorney General Josh Shapiro prepared this spring to publicly release the report he has promised will expose widespread abuse by clergy and "a systemic cover-up" by church leaders, lawyers for the unnamed clergy members sought to limit it.
They complained to the judge supervising the grand jury, Norman Krumenacker III, that the report would unfairly disgrace their clients. They also said the grand jury process denies the identified but uncharged clergy due process or the right to their reputations.
As he did with Haverstick's challenges last year – both on the gag order and on a separate argument that the case more properly belonged in the hands of county district attorneys — Krumenacker disagreed. He said the report could be released.
That's when the petitioners appealed to the high court.
The justices agreed to hear arguments on the matter in September. But their ruling to order – at least for now – a redacted version of the report was seen by some victims as a blow to its potency.
The decision also signaled the justices' frustration with some of Krumenacker's rulings in the case. All the justices except Max Baer, who said he preferred to defer his opinion until after arguments, agreed that the clergy members' due process rights did not appear to have been met when Krumenacker approved the report's public release.
However, Chief Justice Thomas Saylor wrote on behalf of the court, the "justices are not of one mind, at this juncture, concerning what process-related measures can be taken now — or if any such measures would be sufficient now to comport with due process norms — to justify the release of the specific criticisms" pertaining to those clergy members.
How the case is resolved will likely be watched closely by the court's grand jury task force, which was assembled to "perform a comprehensive review of investigating grand juries" and produce a public report suggesting "proposals for possible improvement."
The state Supreme Court announced the task force in July 2017 — a few weeks after Haverstick asked the justices to intervene in his unsuccessful challenge to the procedure limiting attorneys' discussions, though court officials say the panel was in the works before then. Haverstick declined to comment.
The seven-member task force has since convened seven times in Harrisburg and additional times by phone, and has no deadline for completing its work, officials say. Members' expenses are covered, but they receive no pay for their work. A court spokesperson declined to outline how the panel members were chosen, and each either declined to comment or did not respond to interview requests from The Inquirer and Daily News and Post-Gazette.
One member of the task force, Duquesne University professor Wesley Oliver, said members were asked to keep the details of their work confidential.
The task force also includes Thomas Farrell, a lawyer whose firm represents one of the clergy members now challenging the release of the full report, as well as Ronald Eisenberg, a former prosecutor in Philadelphia who since his appointment has moved to the Attorney General's Office.
"That persons with such expertise are likely to be involved at some point in grand-jury-related litigation before the court does not affect either the functioning of the task force or the conduct of the litigation," said Stacey Witalec, a spokesperson for the high court. She said that the court "naturally sought individuals with relevant expertise in grand jury matters," but that members have no special access to the justices.
Joe Grace, a spokesperson for the Attorney General's Office, said the office is "fully participating" in the task force but declined to discuss its work while it is ongoing. In a statement, he said: "The grand jury process is an important tool for law enforcement and the public, and we look forward to its continued use in the future in a fair and balanced manner to unearth criminal wrongdoing and to obtain justice for victims of crime across the commonwealth."
The statement didn't address what has been a similar but parallel reform proposed in the legislature.
In April, while the clergy sex abuse investigation was entering its final stretch, State Sen. Stewart J. Greenleaf (R., Montgomery) introduced a bill that, among other things, seeks to sharply scale back a grand jury's ability to issue reports and recommend changes in the law.
Greenleaf, known for his work on criminal justice issues, chairs the Senate Judiciary Committee. That panel in the last session gutted a bill that would have enabled a flood of new lawsuits by past victims against their abusers or the institutions that supervised them – a measure opposed by Philadelphia Archbishop Charles J. Chaput and other church leaders. (Greenleaf recused himself from a vote on the issue because his law firm at one point was paid by the archdiocese.)
The senator said his pending grand jury legislation had "nothing to do" with the latest clergy sex abuse investigation. "This has been developing over years," he said in an interview last month.
Greenleaf said recent grand juries have trampled on people's rights to their reputations, to counsel, and against self-incrimination, although he didn't cite specific cases. Grand juries, he said, should not be implicating people who have not been indicted but should instead focus narrowly on recommending criminal charges.
Critics see the legislation as one prong in a concerted attack that includes the task force and court case.
"To me, it's all coordinated," said State Rep. Mark Rozzi, a clergy abuse survivor and one of the legislature's strongest advocates for extending the civil statute of limitations for victims. "Maybe they aren't directly working together, but they all got each other's back."
Marci Hamilton, a law professor at the University of Pennsylvania, and a prominent advocate for abuse victims, said she fears that Greenleaf's bill, combined with prior attempts to kill statute of limitations reform, is evidence that legislators have been "carrying the water for the bishops."
Greenleaf said he hopes to move his bill out of committee and to the full Senate in the fall, if it can get enough votes. If it doesn't pass in the next four months, it will die and would have to be reintroduced.
The Senate returns Sept. 24. Two days later, the state Supreme Court is scheduled to hear arguments in Philadelphia over the challenges to the clergy abuse grand jury report. Lawyers and victims will be watching closely.
Said Abraham, the former Philadelphia district attorney: "This is going to be a very big deal."