IN THE COURT OF COMMON PLEAS, MONTGOMERY COUNTY, PENNSYLVANIA. IN RE: : SUPREME COURT OF PENNSYLVANIA, : NO. 171 M.D. MISC DKT, 2012 THE THIRTY-FIFTH STATEWIDE : MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : M.D. 2644-2012 : NOTICE NO. 123 ORDER ACCEPTING AND FILING INVESTIGATING GRAND JURY REPORT NO. #2 AND NOW, this 20th day of January, 2015, upon review of The Thirty-Fifth Statewide Investigating Grand Jury Report No. #2, and finding that said Report properly regards a matter investigated by the said Investigating Grand Jury and purposes action in the public interest based upon stated finding, and further finding that said Report is based upon facts received in the course of an investigation and is supported by the preponderance of evidence where the applicable investigation was conducted under the authority of THE INVESTIGATING GRAND JURY ACT, 42 Pa.C.S. §4541, et q.; a8 such, is hereby ORDERED 1. That Investigating Grand Jury Report No. #2 is accepted by the Court with the direction that it be filed as a public record with the Court of Common Pleas of Montgomery County. 2. That the Special Prosecutor deliver copies of the report to the following: ‘A. Pennsylvania State Senate B. Pennsylvania House of Representatives C. Pennsylvania District Attomeys Association BY THE COURT: Supervising JudgeIN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PA IN RE: : SUPREME COURT OF PENNSYLVANIA * : NO. 474 M.D.D. MISC. KT 2012 THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY M.D. 2644-2012 NOTICE No. TO THE HONORABLE WILLIAM R. CARPENTER, SUPERVISING JUDGE: REPORT NO. #2 We, the Thirty-Fifth Statewide Investigating Grand Jury, duly charged to inquire into offenses against the criminal laws of the Commonwealth, found reasonable grounds to issue this Investigative Grand Jury Report. So finding with no fewer than twelve concurring, we do hereby make and submit this Report to the Court. Foreperson — The Thirty-Fifth Statewide Investigating Grand Jury DATED: The Jle day of January 2015,IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PA INRE: : SUPREME COURT OF PENNSYLVANIA y NO. 4171 M.D.D. MISC. KT 2012 THE THIRTY-FIFTH STATEWIDE : MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY =: M.D. 2644-2012 : NOTICE No. GRAND JURY REPORT NO. #2 1. BACKGROUND Supervising Judge Carpenter by his May 29, 2014 Order appointed a Special Prosecutor, under applicable law to investigate into any offenses related to an alleged disclosure of grand jury information protected by law. Upon finding reasonable grounds to believe a substantive investigation was warranted into allegations that statewide grand jury secrecy may have been compromised, this Investigating Grand Jury dutifully investigated the allegations through the consideration of testimony received from multiple witnesses, from within and outside the Office of Attomey General, together with evidence presented through the course of the investigation. Notably, we received testimony from professional and administrative staff members from within the OAG. Il. CONCLUSIONS AND RECOMMENDATIONS ‘A,_Information and Documentation was disclosed to the news media in violation of The Grand Jury Act, because such information/documentation was subject to grand jury privacy protection. Page: 1Upon completion of its investigation, the members of this Thirty-Fifth Statewide Investigating Grand Jury, have concluded that information subject to grand jury secrecy protection was improperly and unlawfully disclosed to members of the news media and the general public. It is clear that the disclosures made to the news media improperly and unnecessarily exposed J. Wyatt Mondesire, the former President of the Philadelphia NAACP, to public scrutiny, It should be noted that a Presentment was never made against Mr. Mondesire, nor was Mr. Mondesire ever charged with a crime. Our determination is based upon our discovery that the disclosed information contained the names of witnesses and prosecutors along with details into the financial affairs of individual’s part of the grand jury investigation all of which was protected information and subject to grand jury secrecy. Our conclusion was based upon the testimony of witnesses who currently and previously worked in the OAG, along with another government attomey, who all advised us that the information and documentation released to the news media was subject to grand jury secrecy protection. All of the witnesses made clear to us in their testimony that well recognized legal procedures are presently in-place, and regularly utilized, for anyone seeking to disclose information/documentation for a Grand Jury Investigation. Permission to release information must be given from the assigned Supervising Judge and only upon application to the Supervising Judge. At no time, was evidence presented during our investigation that anyone sought application to the assigned Supervising Judge to release the Grand Jury information. Page :2B. The absolute protections afforded under The Pennsylvania Shield Law 42 Pa.Cons. Stat. Ann. §5942 should be narrowed in scope to provide for: 1. ACriminal-Fraud exception in the public interest. Of particular concer to us was the role of the press in this matter. This Investigating Grand Jury became aware that at least one member of the press was the recipient of information and documentation subject to grand jury secrecy protection. This information was delivered to the press and was unlawfully obtained and subject to grand jury secrecy protection. It is our understanding that, under Pennsylvania law, specifically, 42 Pa.Cons. Stat, Ann. §5942 (a) (commonly referenced the “Pennsylvania Shield Law”) together with broad rights conferred under the Reporter’s Privilege permitted under the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution, allow members of the press to circumvent efforts of prosecutors to identify their sources. During our investigation we were unable to have members of the media identify the person or persons who we believe broke the law in delivering the information and/or documentation to the press that was subject to grand jury secrecy. Our deliberations would have ‘been more complete from such questioning, and would have significantly reduced the time and effort expended to complete our investigation. ‘As a result, we advocate that a narrow criminal-fraud exception to the “Shield Law” be adopted that would discourage the releasing of secret information. Otherwise, we fear that Grand Jury information — as was the case before and during this very investigation — will continue to be provided to the press without any repercussions as long as the “Shield Law” continues to provide the press with absolute protections thereby permitting people’s reputations to be violated Page :3contrary to the protections to a good reputation provided under the Pennsylvania Constitution. This infringement of personal rights needs to be addressed by appropriate legislation. We were fortunate in this Grand Jury Investigation to uncover the source of the Grand Jury “leak” which would not have been discovered without the truthful testimony of many law enforcement individuals. These individuals would have benefited fiom gir being in place a statutory criminal-fraud (Grand Jury) limited exception to the news reporter “Shicld Law” that would maintain the integrity of the Grand Jury process. We strongly believe that the grand jury system best functions when participants are free to come forward and assist law enforcement without the fear of exposure of their identity, and free from retribution. We believe the balancing of interests under the present absolute privileges presently 5 / ; _ bt PM ga applied to the “Shield Law” should be tempered to include a crime-fraud exception, A narrow crime-fraud exception will: () limit the damage done in high profile and drug investigations by protecting witnesses from either physical harm or unwarranted scrutiny; (ii) discourage reporters from developing sources by encouraging them to commit crimes in providing information and/or i) provide for a reasonable narrowing of the documentation subject to grand jury secrecy; and absolute protections provided reporters thereby ensuring that sources actually exist and that the information provided is not fabricated or mere rumor. Our views are based, in part, upon our own observations in this investigation, and in particular, based upon testimony we received from government lawyers. 2. Elimination of confidentiality when the source waives confidentiality. In view of our investigation, we also conclude that if a source testifies about his/her communications with the journalist, the communication loses its confidential label and the Page :4journalist’s testimony may be compelled, similar to other privileges such as the attorney-client privilege. B. Delivery of Report to the Public and the Pennsylvania Legislature ‘The Grand Jury recommends that this Grand Jury Report be issued to the public and to the Pennsylvania Legislature. We, the Grand Jury, do not want our recommendation today to be viewed as an attempt to limit the freedom of the press, which we recognize to be one of our most important constitutional rights, but we view our recommendation to narrow the Pennsylvania Shield Law as a reasonable means to maintain an acceptable balance of competing interests in favor of exposing those who violate the sanctity of the grand jury system for their own unlawful purposes. We the Grand Jury after serving for almost 24 months find that the grand jury process provides an important public service that requires the public trust, and its secrecy must be protected for it to properly serve the public interest, be. Foreperson — The Thirty-Fifth Statewide Investigating Grand Jury DATED: The Ilp_ day of January, 2015 Page: 5