Tuesday, August 30, 2011

Grider - Prosecutorial Misconduct

     Commonwealth v. Grider, 09-CA-2080-MR, published.Court of Appeals, August 12, 2010

      The Commonwealth appealed a trial court’s order granting Grider’s motion to dismiss an indictment charging him with 15 counts of trafficking in a controlled substance and bribing a witness.  The Court of Appeals reversed and remanded.  Grider owned three pharmacies.  In the course of investigations against him, 124 boxes of documents were seized from his pharmacies.  Grider sought access to those documents and the trial court ordered the documents to return the originals or make copies to Grider.  Over two years later, Grider filed a motion to dismiss the indictment or to hold the case in abeyance for the Commonwealth’s failure to turn over the original documents or to provide meaningful access to the documents.  The trial court agreed and dismissed the indictment without prejudice.  The Court of Appeals reversed the trial court’s dismissal because the trial court did not try to compel compliance by a less severe penalty, e.g., using its contempt powers or refer any “recalcitrant attorney to the KBA for appropriate disciplinary proceedings.”  

     Practice Tip: before asking for a dismissal of an indictment due to a prosecutor’s misconduct, first ask the trial court to use its contempt powers or refer the prosecutor to the KBA for disciplinary proceedings.

     Contributed by Robert Yang