Thomas Ponzo, 27, who is awaiting trial on felony drug charges after being caught transporting nearly four pounds of methamphetamine in March, made a motion with the Superior Court of Delaware to record grand jury testimony, citing two mostly conflicting state court rules that seemingly trap defendants in a sort of Catch-22.
One rule requires prosecutors to produce any recorded grand jury witness testimony if that witness later testifies at trial or at an evidentiary hearing. The other rule, meanwhile, permits recording of grand jury proceedings only by court order. The rule deviates from the federal system and most state courts, all of which record testimonies by default.
In his opinion Tuesday, Superior Court Judge Jeffrey J. Clark acknowledged that the rule conflict puts criminal defendants in an unfair position, but said the court had never approved requests to make such recordings since it adopted both rules in 1992, and concluded that Ponzo's case did not warrant going against that precedent.
"Despite this unfairness," Judge Clark said, "Delaware's requirement for court approval to record grand jury proceedings and the Superior Court's long-standing practice of denying such requests are constitutional and otherwise lawful."
Under Delaware law, a court can allow the recording of grand jury testimony when defendants show "good cause," meaning they have compelling reasons. In denying his motion, Judge Clark said Ponzo did not prove to the court that his request was any different from many others that were presented to the Delaware grand jury and were denied.
At the same time, though, Judge Clark took a jab at the Delaware court's practice of largely disallowing grand jury recordings, which he noted undermines the fairness of the trial process for defendants like Ponzo.
"Mr. Ponzo's motion highlights a marked unfairness for criminal defendants," the judge wrote.
And he used the opinion to indirectly urge lawmakers to tweak the rule governing recording, Superior Court Criminal Rule 6(e)(1), saying the change would be "necessary, as well as advisable" to ensure fairness for defendants.
Rule 6(e)(1) says that grand jury proceedings, except when the grand jury panel is deliberating or voting, "may" be recorded stenographically or electronically "only with the approval of the court."
Judge Clark called the language in the rule "unique" and noted that federal rules have not only allowed, but required the recording of grand jury proceedings since 1979.
Meanwhile, the other rule at play in Ponzo's case, Superior Court Criminal Rule 26.2, requires state prosecutors to disclose to criminal defendants previous statements made by a government witness immediately after the witness took the stand at trial or at an evidentiary hearing. That includes statements "however taken or recorded" that the witness made to the grand jury.
The rule is largely crafted to conform with the Jencks Act, a federal law that codified the ruling of the 1957 U.S. Supreme Court decision in Jencks v. United States
and established, among other principles, that there should be recordings of grand jury testimony available for disclosure in certain circumstances.In his opinion, Judge Clark put the conflicting state rules into the largest context, noting that because Delaware grand juries, unlike those in other states or their federal counterparts, have little investigative power, prosecutors have "little tactical incentive" to ask courts to record grand jury proceedings.
"Despite references in court rules to recordings, transcripts, and the presence of stenographers at a grand jury meeting, grand jury proceedings have not been recorded in Delaware in living memory," the judge wrote.
As a result, he said, there is never a witness statement criminal defendants can use, nor can there ever be any.
In May, Ponzo made his motion asking the Superior Court to allow him to record grand jury testimony under Rule 6(e)(1) in relation to two separate drug-related cases, arguing that the recordings were necessary so that state prosecutors could honor the Jencks precedent, as well as Rule 26.2. The state, on the other hand, countered that the rule simply does not require the recordings.
In the end, Judge Clark found there is no constitutional obligation to record grand jury meetings, saying that neither Ponzo nor prosecutors had come up with any court decisions in any jurisdictions that had found the type of rule in place in Delaware to be unlawful.
"When recognizing the lawfulness of Delaware's practice, the court does not minimize how unfair it is to create a right to Jencks material that, for all practical purposes, remains unavailable because of Delaware's practice of nonrecordation," he said.
"There is no question that the practice impairs the criminal justice process," the judge said.
Tasha M. Stevens-Gueh, who represents Ponzo, did not respond to multiple requests for comment on the ruling. The Delaware Department of Justice declined to comment.
Ponzo is represented by Tasha M. Stevens-Gueh of Andrew & Stevens-Gueh LLC.
The State of Delaware is represented by Deputy Attorneys General Kevin B. Smith and Georgia C. Pham of the Delaware Department of Justice.
The case is State of Delaware v. Thomas Ponzo, file numbers 2303005845 and 2302015372, in the Superior Court of the State of Delaware.
--Editing by Robert Rudinger.
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