Issue Moot

In an opinion filed on August 11, the Massachusetts Supreme Judicial Court dismissed as moot a challenge to the issuance of a grand jury subpoena to defense counsel’s investigator in a criminal investigation:

The petitioner was charged in the District Court with various felonies.In connection with a subsequent grand jury investigation, theprosecutor sought approval from a judge in the Superior Court tosubpoena an investigator hired by the petitioner’s counsel. See Mass.R. Prof. C. 3.8(f), 426 Mass. 1397 (1998). The prosecutor sought to question theinvestigator about an allegation that he had instructed a witness notto talk to the police. The petitioner’s counsel objected to theissuance of the subpoena, claiming that subpoenaing the investigatorwould violate attorney-client and work-product privileges and impairthe petitioner’s relationship with his defense team. The judge approvedthe request, concluding that the reason for the subpoena was a legitimate law enforcement purpose, and that thelimited scope of the prosecutor’s proposed inquiry would not implicatethose privileges.

The judge stayed her order to allow the petitioner to pursue the matterthrough a petition in the county court. In his petition, the petitionerpressed the same claims that he had raised in the Superior Court, andadded that the prosecutor and the judge had failed to comply with therequirements of rule 3.8(f). The single justice denied the petition.While recognizing that, “[a]t first blush,” the case “appear[ed]” toraise important issues concerning privileges applicable to a defenseattorney’s investigation and what standards a judge should apply whenapproving a summons pursuant to rule 3.8(f)(2), the single justiceconcluded that “the precisely limited scope of the questioningpermitted by the judge, and the purpose of that questioning” identifiedby the prosecutor, “obviate[d]” those concerns: “the Commonwealth doesnot seek to uncover privileged information or to benefit from thefruits of the defense investigation.”

Thereafter, the investigator appeared before the grand jury but did nottestify because he validly invoked his privilege againstself-incrimination pursuant to the Fifth Amendment to the United StatesConstitution. The grand jury indicted the petitioner even without theinvestigator’s testimony. Thereafter, the petitioner was tried and convicted of all but one charge.

The Commonwealth contends that because the grand jury proceedings havelong since ended, the petitioner’s claims have become moot. Thepetitioner counters that we should address the appeal anyway because ofthe importance of the issues raised regarding the requirements of rule3.8(f), where a prosecutor seeks to subpoena a member of the defenseteam. While we may in our discretion address moot issues, we decline to do so here. Questionsregarding the requirements of rule 3.8(f), while capable of repetition,will not necessarily evade review. Although the issues have been briefed,the parties no longer have a personal stake in the outcome. Moreover,the purpose for which the prosecutor sought to subpoena theinvestigator was particularly circumscribed, and so the case does notpresent issues of recurring importance to the administration of justicefor which uncertainty and confusion exist. (citations omitted)

The case is In the Matter of A Grand Jury Investigation. (Mike Frisch)