State v. Turner , 300 Kan. 662 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 102,478
STATE OF KANSAS,
Appellant/Cross-appellee,
v.
RODNEY L. TURNER,
Appellee/Cross-appellant.
SYLLABUS BY THE COURT
1.
The Fifth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights
guarantee that a person shall not be compelled in a criminal case to be a witness against
himself or herself. The constitutional right against self-incrimination means that no
person shall be compelled to answer official questions put to him or her in any
proceedings—civil or criminal, formal or informal—where the answers might incriminate
that person in future criminal proceedings.
2.
For witnesses appearing before a grand jury, K.S.A. 22-3008(4) specifically
codifies the constitutional right against self-incrimination in those proceedings.
3.
Unless the district court determines, pursuant to K.S.A. 22-3008(3), that a grand
jury witness claiming the right against self-incrimination is bound to answer a particular
question, a prosecutor commits constitutional error by continuing to question the witness
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in front of the grand jury after the witness has unequivocally invoked his or her rights
against self-incrimination.
4.
In this case, a Kansas Bureau of Investigation agent acting as chief investigator for
the grand jury and a witness called by the prosecutor violated the constitutional and
statutory rights against self-incrimination of another grand jury witness who had
unequivocally and successfully invoked his rights against self-incrimination when the
agent testified that the grand jury should draw an adverse inference from the witness'
silence.
5.
The Fifth and Fourteenth Amendments to the United States Constitution protect an
individual's due process rights and prohibit the deprivation of a significant life, liberty, or
property interest. The target of a grand jury investigation has a significant liberty interest
at stake and is entitled to due process protection. The essence of due process is fairness
between the State and the individual dealing with the State. A State's administration of
justice is subject to proscription under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution if it offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental.
6.
Kansas statutes governing grand jury proceedings contemplate the due process
mandate that an indictment should issue only where it is based on legal evidence, rather
than suspicion or conjecture.
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7.
Once the accused in an indictment has established the existence of constitutional
violations and abuse of process in the grand jury proceedings, the State, as the party
benefitted by the errors, carries the burden to establish that the errors were harmless.
8.
A district court has the authority to dismiss a grand jury indictment if the accused
was prejudiced by misconduct during the proceedings. The prejudicial inquiry must focus
on whether any violations had an effect on the grand jury's decision to indict. If violations
did substantially influence the grand jury's decision to indict, or if there is grave doubt as
to whether the decision to indict was free from such substantial influence, the violations
or errors cannot be deemed harmless.
Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 744, 250 P.3d 286 (2011).
Appeal from Wyandotte District Court; JACK L. LIVELY, judge. Opinion filed September 5, 2014.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.
Jerome A. Gorman, district attorney, argued the cause, and Steve Six, attorney general, was with
him on the briefs for appellant/cross-appellee.
James L. Eisenbrandt, of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, of Kansas City,
Missouri, argued the cause, and Christina M. DiGirolamo, of the same firm, and Arthur A. Benson II, pro
hac vice, of Law Offices of Arthur Benson & Associates, of Kansas City, Missouri, were with him on the
briefs for appellee/cross-appellant.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, was on the brief for amicus Kansas
Association of Criminal Defense Lawyers.
The opinion of the court was delivered by
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JOHNSON, J.: Rodney Turner seeks review of the Court of Appeals decision that
reversed the district court's dismissal of a multiple-count indictment returned against him
by a citizen-initiated grand jury. The petition to convene the grand jury alleged
wrongdoing by the officers and directors of the Board of Public Utilities (BPU) of the
Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government).
Turner, an attorney who did consulting and legal work for BPU, was indicted by the
grand jury on 2 counts of theft and 55 counts of presenting a false claim, based upon the
theory that he had not performed the work for which he had submitted monthly invoices
to the BPU.
The district court granted Turner's motion to dismiss the indictment, finding that
Turner had been prejudiced by grand jury abuses and violations of his constitutional
rights. But the Court of Appeals reversed the dismissal, finding that Turner did not
possess the full panoply of constitutional rights at the investigatory proceedings by the
grand jury and that the constitutional violations that did occur during the grand jury
proceedings did not prejudice Turner because the record contained sufficient evidence to
establish probable cause to support the indictments. State v. Turner, 45 Kan. App. 2d 744,
250 P.3d 286 (2011). Because the record before us establishes grave doubt that the grand
jury's decision to indict was free from the substantial influence of the abuses of process
and constitutional violations caused by the State's agents during the grand jury
proceedings, we reverse the Court of Appeals and affirm the district court's dismissal of
the indictment.
FACTUAL AND PROCEDURAL OVERVIEW
In January 2008, T.J. Reardon filed a petition to summon a grand jury in the
District Court of Wyandotte County for the purpose of investigating claims relating to the
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BPU and Unified Government. The petition set forth allegations that BPU executives and
directors, as well as city and county officials, had violated the law and misappropriated
public funds in various ways. The petition did not specifically refer to Turner or allude to
the consulting and legal work that he performed for BPU, albeit one of the statements in
the petition directed that "BPU no-bid contracts and fixing with possible bribery charges
should be investigated."
The grand jury was convened in March 2008. The Court of Appeals referred to the
grand jury proceedings as "a 6-month investigation," 44 Kan. App. 2d at 761-62, but the
record indicates that the grand jury actually convened 17 times between its first meeting
on March 5, 2008, and its last session on August 27, 2008; i.e., the grand jury averaged
approximately 3 days in session per month. Wyandotte County District Attorney Jerome
Gorman (DA) and Assistant District Attorney Kristiane Gray (ADA) presented evidence,
examined witnesses, and provided legal advice during the grand jury proceedings.
Special Agent William Delaney of the Kansas Bureau of Investigation (KBI) was
assigned to investigate matters for the grand jury and played an integral role in the
proceedings, testifying before the grand jury on 10 of the 17 days it was in session. The
agent often advocated for an indictment against Turner, at times intimating that such an
indictment might lead to a resolution of an unrelated 20-year-old murder case.
During his appearance on the first day of the proceedings, Delaney directed the
grand jury's attention toward Turner by characterizing his consulting and legal work
arrangement with BPU as an example of a "no-bid contract" to which the petition had
referred. Subsequently, the grand jury would be presented evidence that from 2003
through 2008, Turner had submitted monthly invoices to BPU that totaled in the
neighborhood of $400,000. The invoices were routinely approved by both the general
counsel and the general manager of BPU, notwithstanding that they contained only the
number of hours worked and the hourly rate, without a detailed itemization of the nature
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of work performed. The general counsel, Marc Conklin, was also a target of the
investigation.
The State called several witnesses, including two former executive assistants to
BPU's general manager, two Board members, and an attorney who was acquainted with
Turner, to testify that they did not know the nature of the work that Turner had actually
performed for BPU. But other Board members, including the Board's secretary, testified
about the nature of Turner's work for BPU of which they were aware, as did the former
general manager of BPU who served from 1995 to 2005. The current BPU general
manager opined that the amount of money paid to Turner was not out of line in
comparison with what BPU spent on attorney fees and that he had accepted the general
counsel's explanation that Turner "was offering a lot of legal advice and counsel to [the
general counsel] and that [the general counsel] valued [Turner's] legal opinions."
At that first grand jury session, in response to a juror's question about when the
agent had begun his BPU investigation, Delaney referred to a 20-year-old murder case
that remained open. Delaney added that he remained interested in "BPU people because
of some interest in another case that I probably can't discuss or shouldn't discuss on this
Grand Jury."
Nevertheless, at the next session, Delaney told the grand jury that he had been
"concerned and interested in BPU because some of the people that we were hearing were
involved in the BPU we thought were involved in a murder case in Wyandotte County."
Delaney then told the grand jury about that murder case, namely that Chuck Thompson, a
local politician and attorney, was murdered in December 1987, and the case remained
unsolved. Delaney further related that he was again approached in 2005 to do an
investigation of BPU and that Turner's name continued to come up on both the BPU
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investigation and the Thompson murder. The agent spoke of doing interviews on the
"Thompson case/BPU case" and tied Turner to both cases by telling the grand jury:
"[Y]ou guys know, that there is some kind of legal work or some kind of work being
done by Rod Turner I think over a period of 2003 to 2005. I think I saw the figures over
$400,000 worth of work. All we've seen is invoices. I would be interested to see what's
behind those invoices, what's causing those invoices, 40 hours a week at $150 an hour.
He's got—I would think he would be able to justify why he's submitting those bills to the
BPU.
"I think that's a very interesting area that you really ought to look at pretty
closely. Again, we have an interest in Turner because supposedly he had information
about this other case."
The agent went on to intimate that Turner was a dangerous person by telling the
grand jury he had warned Reardon, the instigator of the grand jury petition, that he was
"dealing with people that you need to be concerned about, don't put yourself in a position
where you can become like a Chuck Thompson."
When the grand jurors were provided an opportunity to ask their own questions of
Delaney, the following exchange took place:
"GRAND JUROR 392119: On the Chuck Thompson, I'm not even going to ask
you to get into detail there. I don't think it's fair or relevant. But are you finding it easier
to tie this all together?
"[DELANEY]: Some of the same names that came up in that have come up in
this. And it's always been the people that probably weren't directly involved but people
that are behind the scenes. That's the information, without getting in a lot of detail on the
homicide, but these same names are coming up.
....
"GRAND JUROR 406292: If we get Rod Turner in here and ask him about the
$400, and is there something else—something else you might be licking your chops on?
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"[DELANEY]: He wouldn't talk to us about the homicide. I would like to talk to
him about the homicide, but I don't think he would be cooperative."
Delaney concluded his testimony at the April 2 session by reiterating that his
agenda was to "solve the Thompson murder and help resolve the BPU issues if possible.
And somewhere in between we'll find the right mix hopefully." He said that whenever he
interviews someone on the BPU matter, he always asks about the Chuck Thompson
murder.
Delaney next appeared two sessions later, on April 16, and provided an update on
his witness interviews, after which the following exchange occurred with the assistant
district attorney:
"[PROSECUTOR]. Obviously, you have a lot more experience in investigating
things than any of us do. And obviously, you got a tremendous amount of information
that you have been working on and a—
....
"[PROSECUTOR]. What would be your suggestion as far as things that we can
look into or direction that you think that we should take? . . .
"[DELANEY]. . . . In all seriousness, obviously, I have kept a file open for a
long time for a reason.
....
"The Rod Turner thing, I got to tell you guys, there has got to be an answer to
why is he getting paid the money that he's getting paid. We're being told by many, many
people that he's not doing nothing. Whether that's filing false claims, I think you need to
seriously look at it. . . . I think you ought to bring Rod Turner in. I don't think that he will
talk. I don't know."
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After Delaney relayed his thoughts to the grand jury on where they should focus
their investigation and explained that the grand jury only had a limited time to act, a
grand juror again brought up the Chuck Thompson murder:
"419001: In your heart you mentioned the murder at Jalisco. In your heart, do
you think there is any kind of relationship here?
"A. As I told you the first time I testified or when I testified about that issue,
some of the same names in that case are coming up today. I will leave it at that. Murder
is—there is never a statute of limitations and I have been working on it for 20 years and,
you know, sometimes people get in a bind and get charged or indicted and they want to
cooperate. Sometimes that will help us. I always look for that road too.
"419001: That is still open?
"A. Yes, it is very open.
"419001: If something comes out of this you can charge somebody?
"A. If something would come out of this or I mean, I actually think I know who
did it and why, but to present it to 12 people, I don't know that we're ready, so."
In response to the question of whether he believed that Reardon was credible,
Delaney responded by again tying Turner to the murder case:
"And I mean you hear something about Rod Turner. You just don't go to Rod Turner and
say 'Hey, is this true?' Because, you know, I told you we tried talking to him on another
case and he didn't see a need to talk to us, so I'll be shocked if he comes in and talks to
you. Does that answer the question?"
Two sessions later, on April 30, 2008, Delaney provided another update to the
grand jury and again referenced Turner's connection to the Thompson murder in
explaining Turner's relationship with a possible witness.
"And actually I think a surveillance report I did probably on the Chuck Thompson
murder case—again keeping—trying to keep track of some of these people, I think he
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was seen with Rod Turner and Pat Scherzer out at an I-Hop or something out at the
Kansas Speedway."
The grand jury subpoenaed Turner to appear and testify at its session scheduled
for June 25, 2008. Turner's attorney sent a letter to the DA objecting to Turner's
appearance before the grand jury based upon Turner's privilege against self-incrimination
under the Fifth Amendment to the United States Constitution and invoking the
attorney/client privilege with respect to his representation of BPU. The record is silent on
whether any effort was made to obtain a waiver of the attorney/client privilege from
BPU, and the grand jury refused to release Turner from the subpoena.
Immediately before Turner was called to testify, a district judge appeared before
the grand jury and announced that he was there to give the grand jury additional
instructions, copies of which would be provided for the jurors. Interestingly, the
instruction referred to "[t]he defendant's invocation of his Fifth Amendment Right," even
though, as the Court of Appeals noted, Turner was not technically a defendant at that
point. (Emphasis added.) The recitation of the instruction was as follows:
"Comes now the Court and by way of additional instructions to the Grand Jury
does state as follows: The defendant's invocation of his Fifth Amendment Right. A
person properly summoned before the Grand Jury is required to appear as a witness for
purpose of giving testimony. No witness before the Grand Jury shall be required to
incriminate the witness' self.
"If any witness appearing before the Grand Jury refuses to testify or to answer
any questions asked in the course of the witness' examination, the facts shall be
communicated to a district judge of the judicial district in writing on which the question
refused to be answered shall be stated.
"The judge shall then determine whether the witness is bound to answer or not.
And the Grand Jury shall be immediately informed of that decision. The Grand Jury shall
not draw any inference of guilt from the fact that a defendant does not testify or refused
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to answer particular questions. You must not consider these facts in arriving at your
decision regarding any indictment.
"These additional instructions to the Grand Jury must be considered in
conjunction with the Grand Jury instructions and charges which you've already received.
All instructions provided must be given equal weight in consideration during your
deliberations.
"These additional instructions to the Grand Jury, presented to the Grand Jury this
25th day of June, 2008. Signed by myself at this time."
The district judge left the jury room after delivering the additional instruction.
Then, prior to questioning Turner, the DA advised him of his statutory rights: "No. 1 is
you have the right to not incriminate yourself. And No. 2, that you have the right to
counsel." The DA then noted for the record that Turner had availed himself of the right to
counsel, who was present. Turner's counsel then made a record of certain matters,
including the June 19 letter he sent to the DA, raising objections to the proceedings and
to Turner's appearance at the proceeding. The attorney noted that the DA had been
advised that Turner would invoke his rights under the Fifth Amendment. Additionally,
counsel referred to the American Bar Association rules concerning prosecutors calling
witnesses before the grand jury who are the subject of the investigation and recited the
special responsibility of a prosecutor under Kansas Rules of Professional Conduct
(KRPC) 3.8(e) (2013 Kan. Ct. R. Annot. 614) to "not subpoena a lawyer in a grand
jury . . . to present evidence about a past or present client" except under limited
circumstances. The attorney also requested the DA to instruct the jury that no adverse
inference could be drawn from Turner's assertion of his Fifth Amendment right, to which
the DA replied that the grand jury had been "so instructed by Judge Lampson."
The DA then commenced upon a course of plethoric questioning that elicited over
100 identical successive responses from Turner in which he refused to answer on the
grounds that it may tend to incriminate him, i.e., in which he invoked the statutory right
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of which the DA had just advised him. Many, if not most, of the DA's questions were
leading questions that may have suggested to the jurors what the DA believed the facts to
be. The DA did not communicate in writing with the district judge about Turner's refusal
to testify or about the questions Turner refused to answer, as the district judge's additional
instructions had directed.
The DA then invited the jurors to join in, and one of the grand jurors asked four
pointed questions, all of which elicited the same response from Turner: "I refuse to
answer on the grounds it may tend to incriminate me." The DA jumped back in to ask
eight more unanswered questions before another grand juror concluded the one-sided
interrogation of the nonresponsive witness by asking: "As a citizen of Wyandotte County
don't you think in your opinion that we ought to know as citizens where our money is
going?" The jurors, like the DA, failed to communicate in writing with the district judge
as he had just finished instructing them to do.
When Delaney next appeared before the grand jury, on July 30, 2008, he
suggested an adverse inference might be drawn from Turner's exercise of his
constitutional and statutory right against self-incrimination because if Turner were
innocent he would have shown the grand jury proof. Specifically, in response to the
question from ADA Gray as to what had raised red flags or were big things for the
investigator, Delaney responded:
"The consulting is an issue. I think the outside counsel is an issue. . . . The Rod
Turner to me is just so blatant. I mean, I can't explain—I'm not a lawyer, but if he's got
proof of what he's doing for the BPU why doesn't he show it to us, or why doesn't he
show it to you. That's just an opinion of mine. I'm not a lawyer. I'm just a cop."
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At that July 30 grand jury session, Delaney once again alluded to the Thompson
murder case when testifying about statements obtained from Pat Scherzer, BPU's
insurance agent and a close acquaintance of Turner, who had also been a one-time target
of the grand jury investigation. Specifically, Delaney said:
"And also an interesting tidbit of information I thought was, he asked about me, the KBI
being involved in the BPU case, and that we were trying to use the BPU case to solve the
Chuck Thompson murder. If you remember that's the politician that was killed in 1987.
"And apparently Mr. Scherzer thought supposedly thought that we were writing a
book about it. And that's the farthest thing from the truth. But anyway—it's interesting
that he's concerned about this case, and then all of a sudden he's interested in the Chuck
Thompson murder. So just a little tidbit for your information."
Delaney next testified on August 13, 2008, and again discussed Scherzer's alleged
statements that Delaney was using the BPU case to help solve the Thompson murder and
that Delaney was going to write a book about solving the case. Delaney declared:
"Well, that ain't happening. I ain't writing a book. It is happening, we are trying
to solve the Chuck Thompson murder. When there's individuals involved in that murder
and if their names came up in this case, so be it. That's the way it goes. By the way, I'm
not writing a book."
Delaney also testified about conversations that an attorney, who was representing BPU
Board members before the grand jury, had with District Attorney Gorman about
Delaney's use of the grand jury proceedings to solve the Chuck Thompson murder.
Delaney related:
"Yesterday Jerry Gorman, your district attorney, said Tom Bath, who is representing the
Board of Public Utilities board members, apparently has been approached by some board
member, their concern that Bill Delaney asking BPU people connected—people
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connected to the BPU case, this case, that I'm asking them questions about the Chuck
Thompson murder. That apparently concerns them for some reason. I don't know why.
"But I guess they don't like people with BPU or somehow involved in a murder,
you know, they are concerned about that. And they were apparently asking—this board
member or board members thought that they should go to my supervisor and complain.
"Mr. Bath said, let me talk to Mr. Gorman and see what's going on. Mr. Gorman
advised me of this yesterday. I don't know when that conversation took place. I don't care
when it took place. I've called my bosses and told my bosses—I have two. I have an
assistant director in Topeka. I called him and actually the director of the KBI.
"I said, just to let you know, you may be getting a complaint on me but—you
may be getting a complaint on it, but just to let you know it's going to happen and that I
don't really care. And I want to be right up-front about that."
The grand jury returned a sealed indictment charging Turner with 2 counts of theft
and 55 counts of presenting a false claim arising from Turner's submission of invoices
that were not itemized. Conklin, BPU's general counsel who had approved Turner's
invoices, was also indicted for 2 counts of theft and 55 counts of allowing a false claim,
albeit he died prior to being prosecuted. No other individuals were indicted, and none of
the actual specific allegations in the petition used to convene the grand jury was the basis
for any criminal charge.
Turner filed a motion to dismiss the indictments for grand jury abuse and violation
of his constitutional rights. He complained about the grand jury's requirement that he
appear and invoke his Fifth Amendment privilege after each of the hundred-plus
questions. Turner also argued that he was unduly prejudiced by Delaney's frequent
references to his alleged connection to the Thompson murder. After conducting a hearing
on the motion, the trial court determined that Turner's "rights were prejudiced by the
grand jury abuses and the State's violation of his Constitutional rights," and the court
sustained Turner's motion to dismiss the indictment after specifically finding that:
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"1. The State and its investigative officer undermined the grand jury process and
deprived Mr. Turner of due process and his Fifth Amendment rights.
"2. The grand jury was repeatedly subjected to unsupported statements
concerning the murder of Chuck Thompson, which occurred over twenty years ago. The
murder was irrelevant to the alleged [BPU] violations that the grand jury was charged
with investigating, but the State allowed information and speculation about the murder to
be thrust into the hands of the grand jury proceeding.
"3. While testifying before the grand jury, the State's investigator attempted to
link Mr. Turner to the murder or at least give the illusion that he was somehow connected
thereto. This was highly improper and prejudicial and his comments tainted the grand
jury and violated . . . Mr. Turner's rights of due process.
"4. The State caused Mr. Turner to appear before the grand jury even though it
knew that he would exercise his Fifth Amendment rights and that he would not waive his
attorney-client privilege held by his relationship with the BPU.
"5. During the grand jury proceeding, the State's investigator was permitted to
cast doubt on Mr. Turner's constitutional rights by commenting that Mr. Turner should
come forward with information about the Thompson murder and about his dealings with
the BPU.
"6. The State failed to conduct a fair grand jury proceeding and allowed
information to be presented to the grand jury in a manner that caused the grand jury to
become prejudiced against Mr. Turner."
The State appealed the indictment dismissal to the Court of Appeals, which
reversed the district court's decision. State v. Turner, 45 Kan. App. 2d 744, 250 P.3d 286
(2011). The Court of Appeals first considered the district court's determination that
Turner's Fifth Amendment rights had been violated. The panel found that the district
court had applied an incorrect legal standard in determining that the prosecutor had
violated Turner's Fifth Amendment right against self-incrimination because, in the panel's
opinion, a witness may be required to appear before the grand jury and assert his or her
Fifth Amendment rights on a question-by-question basis. 45 Kan. App. 2d at 754. The
panel did find that Delaney had violated Turner's constitutional right to remain silent in
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testimony given after Turner had invoked that right, but the panel determined that Turner
had not shown that he was prejudiced by that constitutional error. 45 Kan. App. 2d at
756.
Next, the panel found "that it constituted an abuse of discretion for the district
court to find that the State 'failed to conduct a fair grand jury proceeding' without reading
all the transcripts of the entire grand jury proceedings." 45 Kan. App. 2d at 757.
Nevertheless, the panel embarked upon its own review of the entire record and
discovered that Delaney had made "multiple references to his involvement in the
Thompson murder investigation" and that "[a]ll of these references were irrelevant and
unnecessary to the grand jury's investigation of Turner and the BPU." 45 Kan. App. 2d at
758. But the panel held that, because the errors occurred as isolated episodes over the
course of a 6-month investigation and because substantial evidence was presented before
the grand jury to support probable cause for Turner's indictment, "it seems unlikely that
Delaney's improper testimony had 'a substantial effect on the grand jury's decision' to
indict Turner." 45 Kan. App. 2d at 764 (quoting Bank of Nova Scotia v. United States,
487 U.S. 250, 263, 108 S. Ct. 2369, 101 L. Ed. 2d 228 [1988]). Moreover, the panel
proffered the alternative justification that "Turner's constitutional rights can be protected
at trial." 45 Kan. App. 2d at 764.
Turner petitioned for review of the Court of Appeals decision, in part complaining
that the Court of Appeals disregarded the abuse of discretion standard of review "by
wholly substituting its own decision for that of the District Court" and that the panel
essentially abolished important constitutional rights in grand jury proceedings. Turner
argues that the district court's determination that the State violated Turner's Fifth
Amendment and due process rights by conducting improper and prejudicial grand jury
proceedings was supported by at least three State actions: (1) The DA required Turner to
repeatedly invoke his Fifth Amendment right to remain silent over 100 times in the
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presence of the grand jury, after being advised beforehand that Turner would invoke that
constitutional and statutory right; (2) the State's chief investigator impermissibly
commented on Turner's invocation of his Fifth Amendment right to remain silent after
Turner had been called as a witness; and (3) the State's chief investigator repeatedly
testified about, and linked Turner to, an unrelated murder. We agree on all counts.
DISMISSAL OF GRAND JURY INDICTMENT
Although the Court of Appeals reversed the district court's dismissal of Turner's
indictment, the panel did not do so because the proceedings were free of error. To the
contrary, the panel found Delaney's multiple references to the Thompson murder to be
"irrelevant and unnecessary" to the grand jury inquiry and ultimately labeled that portion
of the State's evidence as "Delaney's improper testimony." 45 Kan. App. 2d at 758, 764.
The State did not seek review of that portion of the Court of Appeals' decision. Likewise,
the panel found constitutional error in Delaney's comments on Turner's exercise of his
right to remain silent. Again, the State has not asked us to reverse that Court of Appeals
holding.
Accordingly, the disposition of this review will hinge upon the question of
whether the irregularities and improprieties in the grand jury proceedings already
determined by the courts below justified the district court's dismissal of the ensuing
indictment. En route to that determination, we will review the Court of Appeals'
assessment of the nature and extent of grand jury abuses in this case.
Standard of Review
The Court of Appeals declared that it was utilizing an abuse of discretion standard
to review the district court's dismissal of Turner's indictment. Turner, 45 Kan. App. 2d at
749-50. The panel relied in part upon its determination that the district court had used an
17
incorrect legal standard and in part upon its determination that the entire record did not
support the lower court's holding. We have clarified that both legal and factual infirmities
can form the basis for an abuse of discretion:
"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based. [Citation omitted.] In some cases, this three-part standard may narrow the broad
discretion previously allowed when this court routinely applied only the no-reasonable-
person-would-take-the-same-view standard. [Citation omitted.]" State v. Ward, 292 Kan.
541, 550-51, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Within that context, where we are called upon to determine whether constitutional
rights have been violated, we review the district court's factual findings for substantial
competent evidence, but the ultimate legal conclusion is reviewed as a question of law
utilizing an unlimited standard of review. State v. Bell, 280 Kan. 358, 362, 121 P.3d 972
(2005). In addition, whether a defendant's due process rights are violated is a question of
law over which this court exercises de novo review. See State v. Kirkpatrick, 286 Kan.
329, 351, 184 P.3d 247 (2008).
Analysis
The Court of Appeals began by discussing Turner's Fifth Amendment rights, albeit
those guarantees are actually enforced against state actions through the Fourteenth
Amendment of the United States Constitution. See Malloy v. Hogan, 378 U.S. 1, 3, 84 S.
Ct. 1489, 12 L. Ed. 2d 653 (1964). Nevertheless, to avoid confusion, we will continue the
panel's reference to Fifth Amendment rights. The part of that amendment that is relevant
to our inquiry reads as follows: "[N]or shall [any person] be compelled in any Criminal
18
Case to be a witness against himself." U.S. Const. amend. V. Further, we would also note
in passing that our state constitution contains a privilege against self-incrimination as
well. Kansas Constitution Bill of Rights, § 10.
Moreover, the right to remain silent is a deep-rooted, fundamental privilege. It is
universally applicable to protect an individual from being compelled to answer "official
questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley,
414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). Clearly, then, the constitutional
right against self-incrimination was available to protect Turner from being compelled to
answer official questions put to him by the prosecutor at a grand jury proceeding where
the answers might incriminate Turner in a future criminal proceeding, such as one arising
from an indictment by the grand jury before which he was testifying. Indeed, K.S.A. 22-
3008(4) specifically codifies the constitutional right for grand jury proceedings: "No
witness before a grand jury shall be required to incriminate the witness' self." Any
suggestion that the constitutional right was somehow diluted or diminished because a
grand jury is an investigatory proceeding rather than a criminal action ignores the
purpose of the privilege.
State's Questioning
The first Fifth Amendment issue addressed by the panel was Turner's complaint
that the DA should not have made him invoke his right against self-incrimination over
100 times in front of the grand jurors. The Court of Appeals relied heavily upon In re
Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 475, 932 P.2d 1023 (1997),
where a Court of Appeals panel opined that pursuant to statutory language and
interpretive caselaw, "a person called as a witness in an inquisition under K.S.A. 22-3101
et seq. is not provided blanket immunity from answering questions, and the district court
19
correctly required the witness to assert a Fifth Amendment right on a question-by-
question basis." The panel in this case declared: "Due to the similarities between an
inquisition and a grand jury proceeding, the analysis of a witness' Fifth Amendment
rights in the context of an inquisition is applicable to a grand jury proceeding as well."
Turner, 45 Kan. App. 2d at 752. We reject that premise because the inquisition analogy is
fallacious.
While inquisitions and grand jury proceedings share some common procedural
statutes, they are pointedly different in the areas impacting the protection of an
individual's constitutional rights. First, and foremost, an inquisition does not involve any
nonlawyers; layperson jurors are not in charge of an inquisition. Compare K.S.A. 22-
3101 with K.S.A. 22-3001(3). A prosecuting attorney applies to a judge to conduct an
inquisition, and the judge is charged with issuing subpoenas. K.S.A. 22-3101(1). In the
course of the inquisition, the judge has the hands-on responsibility to prevent the
prosecutor from abusing the judicial process. See Alpha Med. Clinic v. Anderson, 280
Kan. 903, 918, 128 P.3d 364 (2006). Upon completion of the inquisition, nothing
happens until the prosecuting attorney exercises his or her professional judgment and
discretion to file a complaint. See K.S.A. 22-3103.
The absence of nonlawyers participating in an inquisition is important for a
number of reasons, not the least of which is that the prosecutor has no one to improperly
influence by asking numerous leading questions to a witness invoking Fifth Amendment
rights. Pointedly, T.H. did not even address whether requiring a question-by-question
invocation of Fifth Amendment rights could be prejudicial to those rights, presumably
because none of the participants at an inquisition should be confused about the meaning
of such a refusal to answer. In contrast, a layperson would naturally intuit that a person
refusing to answer on the grounds that it might incriminate the witness is simply trying to
hide his or her guilt. If the witness has nothing to hide, why doesn't the witness just
20
answer the questions? KBI Agent Delaney would put that thought into the heads of these
grand jurors.
Moreover, both the prosecutor and the presiding judge at an inquisition are subject
to rules of professional conduct, as well as having taken an oath of office to uphold the
law, including our constitutions. Although lay grand jurors also take an oath, failure to
comply does not put their professional livelihood at risk.
Further, the disposition in a grand jury differs significantly from the purely
investigative function of an inquisition. In the event that the State's law-trained
representative exercises his or her prosecutorial discretion and files a criminal complaint
based upon information gleaned during an inquisition, the defendant still has a right to a
probable cause determination under the Fourth Amendment to the United States
Constitution and a Kansas statutory right to a preliminary hearing. See Gerstein v. Pugh,
420 U.S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) ("the Fourth Amendment
requires a judicial determination of probable cause as a prerequisite to extended restraint
of liberty following arrest"); K.S.A. 22-2902(1) (preliminary hearing procedures).
In stark contrast, the endgame for a grand jury is to issue an indictment upon the
concurrence of 12 of the 15 jurors. K.S.A. 22-3011. In that event, no further test for
probable cause is required and the indicted defendant is not entitled to a preliminary
hearing. See State v. Clemons, 261 Kan. 66, 68, 929 P.2d 749 (1996). In Vasquez v.
Hillery, 474 U.S. 254, 263, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986), the United States
Supreme Court held that the intentional discrimination in grand jury selection is a grave
constitutional trespass and, en route to that holding, the Court recognized that a grand
jury's power transcends mere investigation:
21
"Nor are we persuaded that discrimination in the grand jury has no effect on the
fairness of the criminal trials that result from that grand jury's actions. The grand jury
does not determine only that probable cause exists to believe that a defendant committed
a crime, or that it does not. In the hands of the grand jury lies the power to charge a
greater offense or a lesser offense; numerous counts or a single count; and perhaps most
significant of all, a capital offense or a noncapital offense—all on the basis of the same
facts."
Granted, a grand jury does not determine the guilt or innocence of a defendant,
like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A.
22-3011(3) ("Indictments found by the grand jury shall be presented by its presiding
juror, in the jury's presence, to the court and shall be filed and remain as records of the
court."). Moreover, the need to protect an accused individual's constitutional rights before
factfinders who are not trained in the law and consequently do not know and understand
those constitutional rights is precisely the same with a grand jury as it is with a petit jury.
Finally, although the Court of Appeals pointed out similar statutory provisions
relating to inquisitions and grand juries, it overlooked some significant textual
differences. Specifically, K.S.A. 22-3008 deals with immunity for grand jury witnesses
and provides, in relevant part:
"(3) If any witness appearing before a grand jury refuses to testify or to answer
any questions asked in the course of the witness' examination, the fact shall be
communicated to a district judge of the judicial district in writing, on which the question
refused to be answered shall be stated. The judge shall then determine whether the
witness is bound to answer or not, and the grand jury shall be immediately informed of
the decision." (Emphasis added.)
The disjunctive—refuses to testify or to answer any questions—certainly suggests
that "any witness" has the option of refusing to provide any testimony before a grand jury
22
until a judge orders otherwise, rather than having the sole choice of refusing to answer
question-by-question. No similar provision is found in the inquisition statutes. Instead,
those statutes provide that a witness may not be compelled to self-incriminate, but the
witness may be judged in contempt of court if he or she refuses to answer any "proper
question propounded during the inquisition." K.S.A. 22-3101(3).
Turner suggests that he should not have been required to appear before the grand
jury at all after his attorney advised the DA that Turner would invoke his Fifth
Amendment rights. But we need not wrestle with that question here. Turner appeared
before the grand jury and clearly invoked his constitutional and statutory rights against
self-incrimination, and the DA failed to follow the procedure set forth in K.S.A. 22-
3008(3). The DA did not communicate in writing to the judge that Turner refused to
testify and then await direction from the court. Instead, the DA chose to ask a hundred
plus questions, knowing that Turner could not refute the substance of the questions
without waiving his Fifth Amendment right to remain silent. An example of the DA's
tactics follows:
"Q. Was Marc Conklin just submitting the bills to the BPU for Rodney L.
Turner?
"A. I refuse to answer on the grounds it may tend to incriminate me.
"Q. Did you and Mr. Conklin discuss this matter ahead of time?
"A. I refuse to answer on the grounds it may tend to incriminate me.
"Q. The monies that you've received, some $411,000 or $412,000 for the period
of 2003 through March of 2008, did you share those monies with anyone else?
"A. I refuse to answer on the grounds it may tend to incriminate me.
"Q. Were those monies received for legal services?
"A. I refuse to answer on the grounds it may tend to incriminate me.
"Q. Can you name one legal service you performed for the Board of Public
Utilities?
"A. I refuse to answer on the grounds it may tend to incriminate me."
23
By that ploy, the DA could suggest to the grand jury what the State believed the
facts to be. And perhaps more damning, the questioning could create the impression that
for each and every question that Turner refused to answer, he must have something to
hide. In State v. Crumm, 232 Kan. 254, Syl. ¶ 1, 654 P.2d 417 (1982), where the
defendant attempted to call as a witness a potential suspect in the case whose counsel had
advised that the witness would claim her Fifth Amendment rights, this court clarified that
"[i]t is improper conduct for either the prosecution or the defense knowingly to call a
witness who will claim a privilege, for the purpose of impressing upon the jury the fact of
the claim of privilege." The Crumm Court expanded on the reasons behind that
prohibition:
"'Further, a witness's reliance on the Fifth Amendment "may have a disproportionate
impact upon the minds of the jurors." [Citation omitted.] "The jury may think it high
courtroom drama of probative significance when a witness 'takes the Fifth.' In reality, the
probative value of the event is almost entirely undercut by the . . . fact that it is a form of
evidence not subject to cross-examination." [Citation omitted.] Because the impact of a
witness's refusal to testify outweighs its probative value, "[i]t is well settled that the jury
is not entitled to draw any inferences from the decision of a witness to exercise his
constitutional privilege whether those inferences be favorable to the prosecution or the
defense." [Citations omitted.]'" (Emphasis added.) 232 Kan. at 260 (quoting Com. v.
Hesketh, 386 Mass. 153, 157, 434 N.E.2d 1238 [1982]).
It is difficult to discern how a grand juror would be immune to those adverse
consequences from which we scrupulously protect a petit juror. Granted, here, the district
judge had instructed the grand jury that it was not to draw any adverse inference from
Turner's invocation of his Fifth Amendment privilege. But the DA's incessant and
probing questioning sent an entirely different message. We know from the record that at
least some of the jurors received the DA's message loud and clear, as demonstrated by the
24
jurors' pointed questions to Turner, including one juror's manifestation of bias against
Turner: "As a citizen of Wyandotte County don't you think in your opinion that we ought
to know as citizens where our money is going?" In other words, the district court's
admonition to the grand jurors to refrain from drawing any adverse inference from
Turner's invocation of his Fifth Amendment rights did not survive to the end of the State's
questioning, and the DA did nothing to correct the questioning jurors or to reinforce the
district judge's admonition.
Additionally, the questioning went beyond creating inferences or suspicions with
regard to the padded invoices allegations being investigated. For instance, the DA
referred to a letter in which the correspondent had copied the Disciplinary Administrator
and then inquired: "Can you explain to me what that was about?" Of course, the DA
knew that Turner had to leave the suggestion of unethical conduct dangling before the
jurors without a response. Similarly, the DA inquired about some real estate investments,
intimating that Turner, Conklin, and others were in cahoots on some shady deals.
But the DA did not do all of the damage by himself. The prosecutors permitted, if
not aided and abetted, Delaney to encourage the grand jury to call Turner as a witness
and to suggest to the jurors that Turner should be willing to tell them what he did to
justify the invoices. Then, after Turner appeared and refused to testify, the prosecutors
permitted Delaney to again tell the jurors that Turner should prove what work he had
been performing for BPU. The jurors did not have to draw adverse inferences from
Turner's refusal to testify because the State's chief investigator outright told them that
Turner was wrong to invoke his constitutional right to remain silent.
Accordingly, we agree with the district court that the DA's persistent questioning
of Turner, after learning that he was invoking his Fifth Amendment right against self-
incrimination, was improper and would provide at least part of the justification for
25
dismissing the resulting indictment. We reverse the Court of Appeals' holding to the
contrary.
Comment on Silence
Next, the panel addressed the district court's holding that "'[d]uring the grand jury
proceeding, the State's investigator was permitted to cast doubt on Mr. Turner's
constitutional rights by commenting that Mr. Turner should come forward with
information about the Thompson murder and about his dealings with the BPU.'" State v.
Turner, 45 Kan. App. 2d 744, 754, 250 P.3d 286 (2011). Curiously, the panel first opined
that "there is no direct legal authority for the proposition that a comment by a witness to a
Kansas grand jury about another witness' silence at a grand jury is improper, much less a
violation of constitutional rights." 45 Kan. App. 2d at 756. But then the opinion
summarily declares that "Delaney's comment on Turner's refusal to testify, after he had
expressly invoked his right to remain silent, violated his constitutional rights under the
Fifth Amendment." 45 Kan. App. 2d at 756.
We agree with the panel's conclusion, and we find support in the rationale behind
Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and its
progeny for prohibiting the State from using a witness' silence for impeachment purposes
at a grand jury proceeding. Doyle and its progeny are founded upon the notion that it is
fundamentally unfair to advise a person that he or she has the right to remain silent and
then impeach that person with the fact that he or she exercised the right. Turner had both
a constitutional and statutory right to remain silent when called before the grand jury, and
the prosecutor dutifully advised Turner of that right. When the State's chief investigator,
Delaney, suggested to the grand jury that it should draw an adverse inference from
Turner's failure to explain his billing invoices and the prosecutor did nothing to correct
that impropriety, the State violated the Due Process Clause of the Fourteenth
26
Amendment. Cf. Doyle, 426 U.S. at 619; State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d
387 (1976). Where we part company with the Court of Appeals is when it opines that
Turner had the burden and failed to prove that the State's constitutional violation
prejudiced him. We will discuss the harmlessness of the various errors below.
Abuse of the Grand Jury Process
In dismissing the indictment, the district court made the additional finding that the
"State failed to conduct a fair grand jury proceeding and allowed information to be
presented to the grand jury in a manner that caused the grand jury to become prejudiced
against Mr. Turner." That finding was based upon Delaney's repeated references to the
1987 Thompson murder, intimating that Turner had information about that crime and
suggesting that indicting Turner on the false claims and theft charges could help the KBI
agent solve the murder case.
The panel reviewed the abuse of process complaint as a matter of due process.
Citing to a quarter-century old Wyoming case, Hennigan v. State, 746 P.2d 360 (Wyo.
1987), the Court of Appeals rejected the notion that due process rights attach in a grand
jury proceeding in the same manner as in a criminal trial. Turner, 45 Kan. App. 2d at 760.
But the panel did not explain what process Turner was due in these proceedings, opting
instead to decide that Turner was not prejudiced by the improper testimony in the grand
jury proceeding and, without prejudice, due process rights are not deemed to be violated.
45 Kan. App. 2d at 764.
The Fifth and Fourteenth Amendments to the United States Constitution protect an
individual's due process rights and prohibit the deprivation of a significant life, liberty, or
property interest. Hudson v. State, 273 Kan. 251, 259, 42 P.3d 150 (2002). Obviously, the
target of a grand jury investigation has a significant liberty interest at stake and is entitled
27
to due process protection. The essence of due process is fairness between the State and
the individual dealing with the State. See Chiles v. State, 254 Kan. 888, 902, 869 P.2d
707 (1994). "A State's decision regarding the administration of justice is subject to
proscription under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution if '"it offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental." (Citations omitted.)'" State v.
Bethel, 275 Kan. 456, 461, 66 P.3d 840 (2003) (quoting Patterson v. New York, 432 U.S.
197, 201-02, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]).
Our grand jury statutes provide some insight into the due process requirements in
such proceedings. For instance, K.S.A. 22-3002(2) permits dismissal of an indictment
based upon an objection to the "array or on the lack of legal qualification of an individual
juror," suggesting that a target of an investigation is entitled to a grand jury free from
discrimination. See Vasquez, 474 U.S. at 263. K.S.A. 22-3003, which governs the grand
juror's oath, specifically provides that grand jurors are required to be fair and impartial.
See also State v. Chong, 86 Haw. App. 290, 293, 949 P.2d 130 (1997) (In Hawaii,
constitutional due process requires a fair and impartial grand jury proceeding.). But most
importantly for our purposes here, the grand juror's oath directs that the juror is to base
the indictment on "legal evidence." K.S.A. 22-3003. Legal evidence has been defined as
"[a]ll admissible evidence, both oral and documentary, of such a character that it
reasonably and substantially proves the point rather than merely raising suspicion or
conjecture." Black's Law Dictionary 598 (8th ed. 2004).
Thus, our statutes contemplate that due process mandates that a Kansas grand jury
should only issue an indictment based on legal evidence, rather than suspicion or
conjecture. See also People v. Backus, 23 Cal. 3d 360, 393, 152 Cal. Rptr. 710, 590 P.2d
837 (1979) (When the extent of incompetent and irrelevant evidence before the grand
jury is such that, under instructions and advice given by the prosecutor, it is unreasonable
28
to expect that the grand jury could limit its consideration to admissible, relevant
evidence, defendants have been denied due process.). But cf. Bracy v. United States, 435
U.S. 1301, 1302, 98 S. Ct. 1171, 55 L. Ed. 2d 489 (1978) (while presentation of
inadmissible evidence at trial may pose substantial threat to integrity of factfinding
process, its introduction before grand jury poses no such threat).
Here, the irrelevant and unnecessary evidence of Turner's involvement in or
knowledge of the unrelated Thompson homicide was more than extraneous clutter that
the jurors had to wade through. Delaney presented that evidence as part of the basis upon
which the grand jury should indict on the padded billings charges, i.e., so that the agent
could coerce Turner's cooperation to solve the murder case. Certainly, then, where the
indictment is potentially based on irrelevant evidence, the process has not attained the
fundamental fairness required by due process protections. We have no problem labeling
as a due process violation Delaney's irrelevant and unnecessary testimony about the
Thompson murder case, which was sponsored, or at least enabled, by the prosecutors.
Dismissal of the Indictment
To review, we have identified the following errors in the grand jury proceedings:
(1) The DA violated Turner's Fifth Amendment right against self-incrimination by asking
him numerous questions in front of the grand jury which required him to invoke the
privilege over 100 times; (2) the State's chief investigator for the grand jury
impermissibly commented on Turner's silence in violation of his Fifth Amendment right
against self-incrimination; and (3) the State-sponsored testimony of the chief investigator
violated Turner's due process rights by introducing irrelevant and unnecessary evidence
about an unrelated murder case and suggesting that the grand jury should indict on the
present case to help solve the prior murder case. Our final step is to determine whether
those errors warranted a dismissal of the indictment.
29
Before proceeding, we pause to briefly address the Court of Appeals' declaration
that the district court erred in not reading the entire grand jury transcript before ruling
that the egregious errors pointed out by Turner were prejudicial. Pointedly, the panel did
not identify what portions of the unread transcript provide an excuse or cure of the
constitutional violations pointed out by the defense. Moreover, as the panel pointed out,
the entire transcript is provided on appeal and the State is free to point out to us those
portions of the transcript that favor the State's position.
Although the Court of Appeals found a constitutional violation, it placed the
burden on Turner to establish that the errors were prejudicial. Cf. State v. Ward, 292 Kan.
541, 568-69, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (burden to show
harmless error on party benefiting from the error; constitutional violations require greater
degree of certainty of harmlessness). Relying on Bank of Nova Scotia v. United States,
487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), the panel held that, given the
existence of substantial competent evidence in the record to support the indictment,
Turner had failed to meet his burden of establishing prejudice. Turner, 45 Kan. App. 2d
at 764. We disagree with several aspects of the panel's holding.
Our first disagreement is with the panel's placing the burden of proof on Turner to
establish that the constitutional violations committed by agents of the State were not
harmless error. The district court ruled in favor of Turner and the State appealed,
acknowledging that errors occurred in the grand jury proceedings which would have
caused a reversal of a trial verdict but arguing that the errors were harmless in the context
of this grand jury proceeding. The State needed to prove its theory of appeal; Turner was
not required to prove the fallacy of the State's argument. Moreover, since Ward, we have
consistently placed the burden of proving harmlessness upon the party that benefitted
from the error.
30
Next, we do not read the Supreme Court's holding in Bank of Nova Scotia as
supporting the proposition for which the panel uses it. Nowhere in the opinion did the
Bank of Nova Scotia Court declare that the existence of sufficient evidence to support an
indictment renders harmless any and all errors in the proceedings, as a matter of law. To
the contrary, the issue presented in that case was whether "a district court may invoke its
supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury
investigation, where the misconduct does not prejudice the defendants." 487 U.S. at 252.
In answering the prejudice question, the Supreme Court looked at the effect of the
violations on the decision-making process, rather than considering whether the evidence
was sufficient without the errors. Specifically, the Supreme Court applied a
nonconstitutional harmless error standard, which it stated as follows:
"[T]he District Court had no authority to dismiss the indictment on the basis of
prosecutorial misconduct absent a finding that petitioners were prejudiced by such
misconduct. The prejudicial inquiry must focus on whether any violations had an effect
on the grand jury's decision to indict. If violations did substantially influence this
decision, or there is grave doubt that the decision to indict was free from such substantial
influence, the violations cannot be deemed harmless." (Emphasis added.) 487 U.S. at 263.
Certainly, if nonconstitutional violations cannot be deemed harmless where there
is grave doubt that the decision to indict was free from the substantial influence of the
errors, constitutional violations cannot be deemed harmless under that standard. The
substantial influence of the State's violations is readily apparent in the record before us,
creating grave doubt about the efficacy of the indictment, i.e., the Bank of Nova Scotia
test has been met in this case.
Although the Court of Appeals applied its own test for prejudice, we nevertheless
take issue with the panel's rationale for finding no prejudice. For instance, the panel
31
declared that the alleged errors "occurred as isolated episodes over the course of a 6-
month investigation involving at least 27 witnesses and 97 exhibits." Turner, 45 Kan.
App. 2d at 761-62. That declaration cannot stand up to closer factual scrutiny. While the
time span between the grand jury's first meeting on March 5, 2008, and its last meeting
on August 27, 2008, is almost 6 months on a calendar, the grand jury was in session on
only 17 days during that time span. In other words, describing the grand jury proceedings
as a 2 1/2-week investigation appears more accurate than calling it a 6-month
investigation. And within that shorter time frame, Delaney's erroneous presentation of the
irrelevant and unnecessary evidence of the unrelated murder case played a relatively
major role in the proceedings, when compared to the other witnesses and exhibits to
which the panel alluded. The KBI agent appeared before the grand jury on 10 of the 17
days it was in session, i.e., over 1/2 of the days the jury met, it was exposed to the
influence of Delaney. None of the other witnesses came close to dominating the jury's
time in such a fashion. On 6 of those days in which Delaney testified, i.e., over 1/3 of all
of the sessions, the KBI agent improperly and unconstitutionally attempted to connect
Turner to the Thompson murder. "Pervasive" more accurately describes the frequency of
errors; they were certainly not "isolated."
Moreover, ADA Gray signaled the jury as to the weight it should give to Delaney's
testimony, as compared to the other witnesses, when she inquired of the agent as follows:
"Obviously, you have a lot more experience in investigating things than any of us do.
And obviously, you got a tremendous amount of information that you have been working
on and a— . . . What would be your suggestion as far as things that we can look into or
direction that you think that we should take?" Accordingly, the KBI agent's suggestions
that the jurors needed to indict Turner on the false claims and theft charges in order to
permit the agent to solve a murder case would have been compelling for a lay juror in
that context. In other words, the errors would have substantially influenced the grand
jury's decision to indict, if not compel such a result.
32
Against that backdrop, the State's remaining evidence pales in comparison. As the
panel recited, the State presented witness after witness who testified that they did not
know what work Turner did for BPU. One suspects that the prosecutors could have
presented a couple of hundred thousand other people who could have also truthfully
testified that they did not know what work Turner performed for BPU. To be clear, these
witnesses did not testify that they had personal knowledge that Turner did not earn the
amount he billed. They just did not know what he had done to earn it, in contrast to those
witnesses that had personal knowledge that Turner did perform work for BPU, which the
panel conveniently overlooked. Those witnesses included Board members John Petty,
Loretta Colombel, and Mark Jones; Board secretary Terry Edison; chief counsel for the
Unified Government Hal Walker; and former BPU general manager Leon Daggett, who
said he could discuss the business he transacted with Turner if BPU waived its
attorney/client privilege. In sum, the only evidence supporting the indictment was
Turner's unitemized bills, testimony from certain individuals who were unaware of the
specific nature of work Turner did for BPU, and witnesses who refused to breach the
attorney/client privilege in order to answer the grand jury's questions about what work
was performed. Contrary to the Court of Appeals' belief, such equivocal nonproof
testimony does not cure or trump the egregious errors visited upon these proceedings that
polluted the process and denied fundamental fairness.
Consequently, we reverse the Court of Appeals and affirm the district court's
dismissal of the indictment.
MORITZ, J., not participating.
33