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Cold Cases Growing Colder

Chief State’s Attorney Kevin Kane testified before the legislature this last week that budget cuts and loss of personnel have caused his office to refuse to accept any new cold cases for investigation. The Connecticut Law Tribune, a weekly periodical serving the legal community, reported that Kane’s office presently has 20 cold case investigations and that there are over 900 unsolved murders in this state. Since its formation in 1998, the cold case unit has won convictions in a dozen cases. Kane reported that his office is losing 20 positions with the Governor’s proposed budget cuts. Current cold case investigations will continue.

The development of more sophisticated DNA testing as well as the use of Connecticut’s investigatory grand jury have been powerful tools in the state’s efforts to solve previously unsolvable crimes.

The investigatory grand jury differs from the traditional accusatory grand jury employed in the federal system. Federal prosecutors must obtain a grand jury indictment before proceeding with prosecution. The investigatory grand jury has no authority to order an arrest. Created by statute, an investigatory grand jury is one judge, appointed by a three member panel upon application from the State’s Attorney. In contrast, the federal grand jury is a panel of 16 to 23 citizens, chosen from a combined list of voters and drivers license holders.

The investigatory grand jury can be ordered when the requisites under its enabling statute (Section 54-47c, Conn. Gen. Stat.) are met. The application must contain: ” . . . (1) a full and complete statement of the status of the investigation and of the evidence collected as of the date of such application, (2) if other normal investigative procedures have been tried with respect to the alleged crime, a full and complete statement specifying the other normal investigative procedures that have been tried and the reasons such procedures have failed or the specific nature of the alleged crime or the nature of the investigation that leads the applicant to reasonably conclude that the use of normal investigative procedures would not result in the obtaining of information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised, (3) if other normal investigative procedures have not been tried, a full and complete statement of the reasons such procedures reasonably appear to be unlikely to succeed if tried or be too dangerous to employ, and (4) a full and complete statement of the reasons for the applicant’s belief that the appointment of an investigatory grand jury and the investigative procedures employed by such investigatory grand jury will lead to a finding of probable cause that a crime or crimes have been committed.”

The grand juror has the power to compel production of documents and testimony of witnesses. The proceedings are conducted in secret. Witnesses summoned can be granted immunity if they exercise their fifth amendment privilege against self-incrimination. Potential targets of the investigation must be so informed if they are summoned to appear. Any witness is entitled to have his attorney present, despite the closed nature of the proceedings. Since the grand jury inquiry differs from the normal adversarial system, lawyers for witnesses may only advise a client and cannot participate, otherwise, in the evidentiary hearing.

The grand jury serves for a six month term with two extensions possible. Upon the completion of its inquiry the grand jury issues its report with its findings. While lacking the authority to issue arrest warrants, the grand jury can make a finding of probable cause that a crime has been committed. The report becomes public unless the grand juror finds prejudice to: “(1) The right of a person to a fair trial; (2) the prevention of potential defendants from fleeing; (3) the prevention of subornation of perjury or tampering with witnesses; or (4) the protection of the lives and reputations of innocent persons which would be significantly damaged by the release of uncorroborated information.”

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Rich Meehan