Scott MacKay Commentary: The Legal Joust Over Opening 38 Studios Grand Jury Documents

Mar 17, 2017

The latest twist in the never-ending 38  Studios soap opera is the joust over grand jury secrecy.  RIPR political analyst Scott MacKay says this spat is more about politics than legal precedent.

It’s been almost seven years since Republican Gov. Donald Carcieri and General Assembly Democrats, led by disgraced House Speaker Gordon Fox, rammed the $75 million deal through the Statehouse.  As usual, one lesson of this is that nothing good happens after midnight at McKim, Mead & White’s capitol.

After this wee hours deal  was approved, it quickly unraveled.  Shortly after burning through all the state money, retired Red Sox star pitcher Curt Schilling’s adolescent dream of running a video game company went bankrupt.

The finger-pointing and blame game surged  into high gear. It hasn’t let up since. The tortuous drip of documents from the state’s successful lawsuits to recover money from the lawyers and financial advisers who collaborated in the deal  blanketed Rhode Islanders in a blizzard of cynicism.

Now comes the latest face off, this time between two Democrats, Gov. Gina Raimondo and Attorney General Peter Kilmartin. Raimondo wants to overturn long-standing legal tradition by making the grand jury criminal report public. Kilmartin doesn’t. The matter is headed to court as both sides bulk up their legal arguments.

In Rhode Island, there is one thing we know about legal and political turmoil: There’s always a deal. Lawyers often say a bad settlement is better than a good trial. But this case doesn’t fit the formula. It’s like being almost pregnant – either you are or you aren’t. Either the grand jury records get opened up, or they don’t.

The tradition of grand jury secrecy is as venerable as  English Common Law, says Niki Kuckes,  a law professor at Roger Williams University. Courts and prosecutors take grand jury secrecy very seriously. Disclosures are banned for good reasons. It helps prevent subjects from fleeing. When the grand jury ends, it protects the reputation of grand jury subjects, especially those who don’t face any charges.

In Rhode Island cases where grand jury documents have been made public, such as the Station fire case, the court linked the disclosures to related civil lawsuits, says law professor Kuckes. That isn’t at stake  this time, as the documents from the 38 Studios lawsuits have already been released. The revelations from the that  document dump were damning. The worst was the role of Fox, who is now serving a federal prison sentence for a bribery and corruption scam unrelated to 38 Studios.

In turns out that Fox was involved in shaping a deal for a state subsidy to Schilling nearly a year before the agreement became public. Then he hid details from rank-and file lawmakers so the plan could be pushed into law with scant debate or oversight.

One of those lawmakers was Kilmartin. Like almost every state rep, he voted for it. Now he is saying the grand jury records shouldn’t be disclosed. He’s on firm legal ground. It’s the politics he has a problem with.

In politics, perception often trumps reality. You can believe that Kilmartin kept his hands off the 38 Studios investigation, letting the professional prosecutors in his office make the call on whether there was evidence of criminal conduct. Still, Kilmartin could have stanched the river of cynicism by publicly recusing himself from the entire matter and appointing a special prosecutor.

Raimondo’s request for opening the grand jury books looks blatantly political. She has long been frustrated with the 38 Studios mess and the negative Rhode-Island-as-national laughingstock media coverage it has generated.

Yet, she had nothing to do with this ill-fated deal.  During her 2010 campaign for state treasurer she vigorously denounced it.

But she dropped the ball after becoming governor. During her 2014 governor campaign, she promised an independent 38 Studios investigation. After taking office, she never followed up, probably thinking that this controversy would evaporate after the civil suits were settled.

Now, she is running to the court to bail herself out of a bad political decision,  hoping a judge will overturn long-standing legal precedent and release the documents.

For Raimondo, the best outcome could be for a judge to refuse to open the grand jury proceedings. Then she could blame the courts and go back to worrying about the state budget, patching up relations with House Speaker Nick Mattiello and fixing the UHIP mess.

Scott MacKay’s commentary can be heard every Monday on Morning Edition at 6:45 and 8:45 and on All Things Considered at 5:44. You can also follow his political analysis and reporting at our On Politics blog at