Peter Vaira

By Peter F. Vaira, for the November 21, 2018 edition of The Legal Intelligencer newspaper

Ten years ago, there was little mention of the service of special masters among members of the bar. In the last several years there has been a substantial increase in the appointments of special masters by federal and state courts, on both the trial and appellate level. There is now an Academy of Court Appointed Special Masters. The author of this article serves as a special master as part of his law practice; however, in this article he will not discuss any matter he has been involved in and will not make any comment on the nature of his service.

A special master is a person appointed by the court, or in some instances hired by litigators, to act at pretrial, during trial, or post trial. A special master may be appointed to solve problems in discovery, act as a fact finder, solve problems created by complicated statutory procedure, deal with complaints of ethical violations, and manage unique multi-party legal proceedings, in an effort to minimize the court’s time and resources. Special masters are often appointed pretrial to narrow the number of issues presented by the pleadings, or post trial to implement a court order. The need for special masters is the result of the complicated nature of today’s law practice. Court-appointed special masters are usually paid by the litigating parties.

Although most special master appointments are in the civil area, there are many instances where special masters provide a valuable service in criminal cases. Earlier this year, a federal district court judge appointed a special master to search for attorney-client communications in documents seized by the FBI via a search warrant issued for the law offices of David Cohen, a long-time attorney for President Donald Trump. Special masters are also valuable in solving conflict of interest issues among defense attorneys in criminal cases since special masters can interview attorneys and clients confidentially about issues and facts that could constitute a conflict and that a judge may not learn about in a normal conflict hearing.

Rule 53, Federal Rules of Civil Procedure, states that the court may appoint a special master only to perform duties consented to by the parties, hold trial proceeding and recommend findings of fact or issues to be decided without a jury. If warranted by exceptional circumstances, they may address the need to perform an accounting, resolve a difficult computation of damages, or address pretrial or post trial matters that cannot effectively be addressed by a district court judge or magistrate judge. Rule 48, Federal Rules of Appellate Procedure, provides for similar powers of an appellate master.

There is no specific Pennsylvania state court rule authorizing a court to appoint a special master. Courts rely upon their overall supervisory power to manage litigation. Philadelphia Court of Common Pleas judges regularly appoint special masters. Justice Max Baer, of the Pennsylvania Supreme Court, described the special master in Pennsylvania courts as follows, “The function of a special master is to gather necessary factual information, consider pertinent legal questions, and provide the court with recommendations. Special masters operate as an arm of the court, investigating facts on behalf of the court and communicating with it to keep it apprised of its findings … .” In re The Thirty-Fifth Statewide Investigating Grand Jury, 197 MM 2014, Petition of Attorney General Kathleen Kane, decided March 31, 2015. Baer cited numerous examples where the courts of Pennsylvania have appointed special masters. Baer emphasized that special masters are not special prosecutors.

Former Federal District Court judge of the Southern District of New York, Shira Scheindlin, described her use of special masters as follows, “It is my view that these appointments are very beneficial in resolving disputes quickly, streamlining discovery, handling delicate settlement negotiations and— somewhat surprisingly—reducing cost and delay.” Scheindlin also said, “While there are judges who have never—or only rarely have—appointed a special master, I believe those judges would make such appointments if the parties jointly made it known that the appointment of a master would be helpful. Even if only one party requested such an appointment, and made a good case for making the request, the judge would likely be amenable to such an appointment,” “The Use of Special Masters in Complex Cases,” Portfolio Media, Inc., Law360, New York (Aug. 15, 2017) www.law360.com.

David Cohen, who has offices in Cleveland and New York City, is one of the first attorneys to concentrate his practice on being a special master. He said, “The most important benefit a special master provides is quick attention. Discovery is made dramatically more efficient and less expensive when the parties can simply call the special master to obtain a ruling, or even get insight into the court’s preferences, rather than submit motions or letter briefs to the court. And, of course, the special master’s easy access works to conserve scarce judicial resources—in other words, having a special master frees up the judge’s time. Not every case needs a special master, but complex or highly contentious cases often benefit from having one.” In his article “The Judge, Special Master and You,” (Litigation Magazine, Summer 2014) he provides very practical insight into the judge, special master and attorney relationship.

Third Branch, the Newsletter of the federal courts (December 2004 edition) reported, “A study by Federal Judicial Center … showed that judges have appointed special masters to quell discovery disputes, address technical of fact, provide accountings, manage routine Title VII cases, administer class settlements, and implement and monitor consent decrees, including some calling for long-term institutional change.”

A practical advantage of the use of a special master is that he is not a judicial officer with a formal court docket. The special master can respond, on short notice, to hold an onsite inspection or attend a hastily requested hearing among lawyers concerning a recently discovered issue. A sitting judge or magistrate judge simply does not have the time to adjust his schedule or docket to deal with such problems. A special master is not a judicial officer and can have one-party conversations with attorneys in order to hasten a resolution. I know of special masters who have held hearings in warehouses, parking garages or in attorneys’ offices. A special master is often welcomed as an experienced colleague who understands the complexity of litigation and the attorneys will deal with him as one of their own.

Busy judges and attorneys handling complex situations can benefit from exploring the opportunity of using a special master.

Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the January 15, 2019 edition of The Legal Intelligencer newspaper

As I do every year at this time, I submit changes and events that I would like to see occur in the coming year in the courts, government agencies, federal and state legislatures and the law profession.

Congress should pass the First Step Act, a criminal justice reform bill that is now before the Senate. The bill proposes reforms to the federal criminal justice system and reduces some very punitive federal sentences. The president indicated that he will sign it. It is a realistic criminal justice reform that should continue as a bipartisan effort.

In light of the passage of the First Step Act, Congress and the Department of Justice (DOJ) should take steps to overhaul the Federal Sentencing Commission. The commission has outlived its original purpose of bringing uniformity to federal sentences. The passage of this act, and the fact that the sentencing guidelines are now only advisory, should cause a realistic review of the work and purpose of the commission. The law and procedures have changed, but the sentencing commission remains at its overweight size of over 90 personnel and an annual budget of 17 million dollars. It continues to add unrealistic maximum punishments to many crimes that are simply duplicative of other offenses. The end result is often maximum punishments, which are artificial references for the judges. The commission is one of those government agencies that was created for one purpose, but changes in the law or other conditions has made it far less important. It is similar to the now-defunct federal Interstate Commerce Commission and the current Philadelphia Department of License & Inspection (L&I).

The new U.S. Attorney General should take a hard look at the internal workings of the Department of Justice. Former DOJ attorneys and former FBI agents have made public statements that they are amazed by some of the actions of leaders of their former agencies in the last two years. He should appoint a committee of former members of the DOJ and the FBI to review procedures of supervising criminal investigations and other management issues. There is no need for law professors; utilize attorneys who know the real problems and issues the department must deal with regularly. For example, the relationships between Assistant Attorneys General in Washington and the U.S. Attorneys in the field are unique to those two organizations. Changes in those procedures can only realistically be suggested by persons who have dealt with those situations on a day-by-day basis.

The new attorney general should appoint a group of career attorneys from the U.S. Attorneys Offices in the field and main justice. When a prosecution team is needed to handle politically sensitive cases, it would be selected from this group. These are professionals who handle major investigations and prosecutions every day. The public and the bar are fed up with frequent calls for special prosecutors by both political parties every time a political figure is involved in a questionable transaction. At my request, both senators from Pennsylvania have forwarded this suggestion to the attorney general.

The Pennsylvania state Legislature should devote a realistic effort to amend the Pennsylvania Investigating Grand Jury Statute. Last year, after considering detailed proposed amendments submitted by members of the bar for over two years, the Judiciary Committee, in what is best described in boxing terms, “took a dive.” It held a 30-minute perfunctory hearing on the subject, attended only by the chairman of the committee, and several days later the committee quietly dropped consideration of the subject. The statute needs serious revision. The Supreme Court can make only certain procedural changes in its administrative oversight of criminal procedure. Major changes must be made to the statute itself by the legislature.

Formulation and publication of a Pennsylvania grand jury procedure is long overdue. The federal grand jury, although not a monument to civil rights, is governed by well-known procedure contained in published regulations and rules, and is followed by the courts, prosecutors, and defense lawyers. Court decisions regarding grand jury issues are published. Prosecutors and defense lawyers have clear guidance in handling matters. There is no Pennsylvania grand jury procedure, although there has been elected attorneys general since 1980 who should be responsible for providing such a procedure. Instead, prosecutors make conflicting proposals to grand jury judges depending upon the particular grand jury judge they appear before, and what they feel might work on that particular day. The conflicting procedures now in use cannot continue.

The Philadelphia Department of L I should be removed from city government and dissolved.  L&I is still in operation despite a report by a special Investigating commission, created by Mayor Michael Nutter, which recommended that it be completely removed from city government. No credible evidence has been advanced for its continuance since the issuance of the report.

Put one in the win column. In my March 12, 2018 Legal Intelligencer column, I concluded that a grand jury report, when issued by a Pennsylvania state grand jury pursuant to 42 Pa.C.S.A. 4552 without an accompanying criminal charge, is a violation of Pennsylvania’s Constitutional Right to Personal Reputation. At the time, there was much publicity concerning a series of court decisions regarding personal rights of certain persons named in the grand jury report from the investigation of sexual abuse in the Catholic Dioceses. On Dec. 3, 2018, the Pennsylvania Supreme Court, in a 6-1 decision, ruled that such reports were violative of the due process clause of the Pennsylvania Constitution. That pretty much ended any future issuance of grand jury reports without criminal charges. The grand jury’s purpose remains that of determining whether probable cause exists to charge someone with a crime. The grand jury, which is not an official part of the legislative, executive or judicial branches of Pennsylvania government, is not equipped to be a social commentator.

Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at p.vaira@gpfflaw.com.

By Peter F. Vaira, for the September 25, 2018 edition of The Legal Intelligencer newspaper

This column discusses the major differences in state and federal grand jury procedures. This is especially important as Pennsylvania state prosecutors have increased their use of the investigating grand jury over the past five years. In addition to the Pennsylvania Attorney General, all county district attorneys now have the power to empanel all investigating grand jury. The court proceedings arising from the recent Attorney General’s grand jury report on abuse of minors by priests in catholic dioceses, indicate the unsettled issues in Pennsylvania grand jury procedure. Pennsylvania grand jury procedure is unlike its federal counterpart, which contains a definite grand jury procedure and a body of case law which the judges, prosecutors and defense bar readily follow. The Pennsylvania Grand Jury statute was adopted in 1980 and can be found at 42 Pa. C.S.A 4549, et seq. The term prosecutor used in this article refers to the commonwealth attorney.

Swearing the Grand Jury Witness to Secrecy

Pennsylvania Criminal Procedure Rule 556.10 provides that a grand jury witness may disclose his or her testimony before the grand jury, unless the attorney for the commonwealth obtains an order from the supervising judge that directs otherwise.

The statute gives no other direction or standard for determining whether to prohibit a witness from disclosing his or her grand jury testimony to anyone outside of the grand jury. Katie Recker, an experienced defense attorney, said that when she requested a copy of the written nondisclosure order, the judge explained the order itself was subject to grand jury secrecy and would not disclose it. Recker said that such orders are often issued by supervising judges as a matter of course in all grand jury investigations without finding any probable cause to do so.

Federal: There has never been a prohibition on a grand jury witness disclosing his or her grand jury testimony, see Federal Rule of Criminal Procedure, 6 e (2) (A).

Attorney for the Witness Sworn to Secrecy

Until Aug. 21, all Pennsylvania attorneys for the grand jury witnesses were required to sign a standard form in which the attorney was required “… To  keep secret all that transpires in the grand jury room, all matters occurring before the grand jury, and all matters and information concerning this Grand Jury, obtained in the course of the representation, except when authorized by law or permitted by the court …” 42 Pa. C.S,A. Section 4549 (b). On that date, the Supreme Court ordered that the attorney for the witness could, with the permission of the client, disclose the testimony of the client, if the client were permitted to do so.

The court went further and extended the veil of secrecy to matters beyond the client’s testimony. The court said, “We hold that Section 4549 (b) straightforwardly forbids attorneys—including private attorneys—from revealing matters occurring before an investigating grand jury, absent permission from the supervising judge.” The court then added the following quote from a federal procedural digest, “The general rule of secrecy does not make everything connected with the grand jury’s investigation somehow untouchable,” citing Van Ardsale, 9 Fed. Proc. L.ED Section 22.794 (2018). The court said, “… the proscription against disclosure of ‘all matters and information concerning this Grand jury obtained in the course of representation’ … represents too great an impingement on counsel’s ability to effectively represent their clients.” This combined ruling is confusing to say the least. There is no clear line as to what is a matter before the grand jury that cannot be disclosed by counsel for a grand jury witness. This broad interpretation of grand jury matter permits prosecutors to avoid giving any information to counsel for a witness.

Federal: Federal courts follow the rule that if the document or information existed on its own outside the grand jury, presentation to the grand jury does not make it grand jury matter. There has never been a restriction on the attorney for the witness relaying to third parties, the testimony of his or her client, or anything the attorney learns about the prosecution.

Asserting the Fifth Amendment

Pennsylvania courts recognize the right to assert the Fifth Amendment’s privilege against self-incrimination before the grand jury. The procedure that follows if the prosecutor objects is somewhat confusing. Prosecutors often challenge the assertion of this privilege and attempt to have the supervising judge to impose a standard that is not found in any case. According to former Deputy Attorney General Laurel Gift, quite often the prosecutor will advise the supervising judge that the witness is not a target of the investigation and thus cannot assert the privilege. Many judges accept this proposition. Whether the person is not a target of the investigation is not a test of the appropriate assertion of the Fifth Amendment. Prosecutors often argue the witness must admit that he or she is culpable of a criminal offense. This is also not the standard.

The privilege not only extends to “answers that would in themselves support a conviction … but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant,” as in Hoffman v. United States, 341 U.S. 479, 486. Far from requiring an admission of possible guilt of a crime, the Fifth Amendment permits the invocation of the privilege by witness professing innocence. In Ohio v. Reiner, 532 U.S. 17, 21 (2001) the court said: “We have never held … that the privilege is unavailable to those who claim innocence. To the contrary, one of the Fifth Amendment’s ‘basic foundations’ … is to protect innocent (persons) …who might otherwise be ensnared by ambiguous circumstances.”

If the witness refuses to testify, the court will find the witness in contempt. This is civil contempt, and the judge should be requested to stay any punishment pending appeal and grant bail pending appeal. If bail is denied by the grand jury judge an emergency motion should be filed with the Supreme Court, which hears all grand jury matters.

Federal: The assertion of the Fifth Amendment is generally no problem. The prosecutor and the court accept the assertion unless it is clearly improper, such as the witness being granted immunity. If the witness is held in contempt, provisions of Title 28 US Code 1826 regarding bail and bail pending appeal are applicable.

Motion Practice

Motions concerning Pennsylvania grand jury issues are filed with the grand jury supervising judge. These are filed under seal as the workings of the grand jury are confidential. Hearings will be closed. The supervising judge will issue a confidential order on the issues involved. This procedure has inherent difficulties. The decisions of the judge with rationale for the ruling are not usually published. Thus, there is no body of precedential law to guide future litigants. Judges often refer to a prior case in their oral decision but give no names or facts or circumstances on the grounds that the decision is covered by grand jury secrecy.

Federal: The judge presiding over the grand jury will issue a written order, substituting Doe and Roe for the parties, and set out the issue and the resolution. Those orders are published and become part of the law of the grand jury for citation and guidance of other courts. There is no such body of law in Pennsylvania. One of the proposals for amending the grand jury procedure is for the Supreme Court to order all such grand jury decisions to be published for guidance of other courts.

Grand Jury Judges

Each investigating grand jury in Pennsylvania has a supervising grand jury judge. That judge swears in all witnesses and hears motions filed by attorneys. The drafters of the grand jury statute intended the judge to have expertise in grand jury matters and make quick responses to issues raised by the attorneys. That plan has not worked, and practicing attorneys often complain that the judges know little about grand jury procedure. The Grand Jury Task Force created by the Supreme Court in 2017 received many complaints regarding the lack of knowledge of supervising grand jury judges. The judges themselves have asked for specific training sessions, which has not yet been accomplished.

Another complaint is that many supervising judges have developed a close relationship with the Prosecutors and are not the independent jurists they were intended to be. This is often due to the fact that their offices are located in the same complex as the Prosecutors. Two years ago, a supervising grand jury judge was stripped of all his judicial powers, partially based upon his improper close relationship with the prosecutor.

Federal: The grand jury judges are assigned by lot and have other criminal and civil case loads.  There is no physical proximity with the prosecutor. There is a well-defined body of federal rules and decisions are published. Grand jury matters are only a portion of the case load of a federal district court judge.

Attorney in the Grand Jury Room

Attorneys for witnesses before a Pennsylvania grand jury may accompany the witness in the grand jury room but are not permitted to address the grand jury and may not interrupt the testimony to confer with the witness unless the witness seeks to speak with the attorney.  Skilled attorneys have worked out a method for alerting the witness when a witness should have consultation.

Federal: The lawyer is not permitted in the grand jury room in federal court, but the witness has the opportunity to leave the room to consult with his or her attorney.

The Need for Reform

There has been continued calls for changing Pennsylvania grand jury procedure, with legislative amendments, as well as changes to criminal procedure. Very little has been accomplished. Many practicing attorneys have suggested that Pennsylvania adopt the federal grand jury procedure, with appropriate changes for some state issues. This would make good sense, and would solve many problems quickly, but the courts and legislators have reacted to this suggestion similar to the manner of the Western Union Telegraph Company rejecting Alexander Graham Bell’s invention, the telephone.

In 2017 the Pennsylvania Supreme Court created a Grand Jury Task Force to study changes in the grand jury procedure. The Pennsylvania Senate Criminal Judiciary Committee undertook a study of the grand jury in 2016. The Senate Judiciary, after a half day hearing in April 2018, quietly “folded its tents, and silently slipped away” with nary a comment.  We await the report of the Grand Jury Task Force.

Peter F. Vaira is a member of Greenblatt, Pierce, Funt and Flores, LLC. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at p.vaira@gpfflaw.com.