Hammond v. Brown

MEMORANDUM AND ORDER

Each of these actions seeks declaratory and injunctive relief, and each is founded on 42 U.S.C. § 1983 (1964) (deprivation of civil rights). Consolidated for trial each action requests a permanent injunction to bar the prosecution of the 25 persons secretly indicted on October 16, 1970, by a Special Grand Jury of Portage County (Ohio) Common Pleas Court, in 30 true bills of indictment covering 43 offenses. Also requested is an order to expunge a written report presented by the Special Grand Jury to the Honorable Edwin W. Jones, Judge of the Common Pleas Court of Portage County, at the same time the indictments were secretly returned.

The indictments grow out of events of May 1 through May 4, 1970, that took place on and off the campus of Kent State University in Kent, Ohio. Dealing with those events on October 4, 1970, the President’s Commission on Campus Unrest issued a “Special Report — The Kent State Tragedy.” The Special Grand Jury Report, the validity of which is an issue in this case, attempts to chronicle the same events. The issues in these cases, as this court sees them, neither require nor permit a general factual inquiry, and this court makes no independent findings as to what transpired during those four days in May in the Kent community.

However, it is material to record that responsive to a request of the Mayor of Kent, Ohio’s Governor James A. Rhodes on the evening of May 2, 1970, dispatched units of Ohio National Guardsmen to duty in Kent, Ohio to assist the local authorities. Apparently martial law was not declared. On the afternoon of May 4, 1970, confrontations involving students and Ohio National Guardsmen *331 climaxed on Blanket Hill in the vicinity of Taylor Hall on the university campus. Ohio National Guardsmen shot and killed four students and wounded nine other students.

Three persons are indicted for offenses alleged to have happened on Friday, May 1, 1970. These offenses include malicious injury to property and riot, second degree. Ten persons are charged with offenses alleged to have happened on Saturday, May 2, 1970. These offenses include arson of uninhabited building; attempt to burn property; throwing stones at a fireman; assault and strike a fireman; interfering with a fireman at scene of fire; riot, first degree; and riot, second degree. One person is charged with one count of inciting to riot on Sunday, May 3, 1970. With reference to Monday, May 4, 1970, 16 persons are each charged with a single count of riot, second degree; and one person is charged with a single count of inciting to riot. None of the National Guardsmen is indicted for any offense.

Representative of the contentions of both complaints is this quote from the Hammond complaint:

The making of the indictments, together with the [Special Grand Jury] Report was a bad-faith use of the State’s legal machinery with the purpose of inhibiting the exercise of free speech and has caused and will continue to cause, unless nullified and expunged, significant chilling effect on speech that cannot be avoided by future state court adjudication.

There, are 20 plaintiffs in the Hammond case, six of whom are indicted and are charged with riot, second degree on May 4, 1970. One plaintiff is indicted on counts of arson of uninhabited dwelling and riot, first degree on May 2, 1970. Another plaintiff is charged with counts of riot, first degree; interference with fireman at scene of fire, and throwing stones at another, all offenses alleged to have occurred on May 2, 1970. The other indicted plaintiff in the Hammond case is charged with riot, second degree on May 1, 1970; with inciting to riot on May 3, 1970; and is charged with riot, first degree and interfering with fireman at the scene of fire on May 2, 1970.

Other plaintiffs in the Hammond case include a student of Kent State University, not indicted by the Grand Jury, who sues on behalf of himself and all other students of Kent State University; and 10 persons who describe themselves as “concerned members of the Kent State University community or elsewhere in the community of Portage County, Ohio * * *»

All plaintiffs in the Adamek case, 32 in number, are professors at Kent State University. The complaint charges that First, Fifth, Sixth, and Fourteenth Amendment rights are violated by the issuance of the Report. It stresses that First Amendment Rights (including academic freedom) have been jeopardized by the indictment of fellow plaintiff Professor Thomas Lough. His indictment charges him with inciting to riot on May 4, 1970.

Attorney General Paul W. Brown and his appointed Special Counsel, Robert L. Balyeat, Seabury H. Ford, and Perry G. Dickinson, are defendants in each case. They are sued individually and in their respective capacities as Attorney General of Ohio and Special Counsel to the Attorney General. Attorney General Brown appointed these Special Counsel to conduct the investigation called for by Governor Rhodes on August 3, 1970. Governor Rhodes directed Attorney General Brown to convene a Special Grand Jury in Portage County, Ohio.

In the Hammond case also sued are foreman Robert R. Hastings and 15 other members of the Special Grand Jury, and Lucy S. DeLeone, Clerk of the Common Pleas Court of Portage County. In the Adamek case, Robert W. Hastings, is sued individually and as a member of the Special Grand Jury and so are all others similarly situated.

On November 13, 1970, this court overruled a consolidated motion of the *332 plaintiffs in both eases to convene a three-judge court to pass on the constitutionality of Ohio’s anti-riot laws (Ohio Rev.Code § 2923.52-54). As seen, these sections, adopted in Ohio in 1968, form the most frequent basis of the offenses charged in the indictments. In plaintiffs’ motion it was claimed that these sections of law “on their face and as applied violate the Constitution of the United States and are, therefore, null and void.” In denying the motion for a three-judge court this court concluded and determined that “there is no substantiality to the claim of unconstitutionality of the Ohio anti-riot law.”

An evidentiary hearing on the remaining issues of the two actions, involving the request for permanent injunctive and declaratory relief, was held from November 23, 1970 through December 3, 1970. Following the submission of proposed findings of fact and conclusions of law, oral arguments were presented on January 5, 1971.

I.

In considering a case that petitions a federal district court to intervene in a state criminal case it is timely to first mark the permissible limits of federal intervention. The criminal jurisdiction of our country is apportioned between the coordinate federal and state judicial systems. Under Ohio law, state grand juries or state prosecutors have exclusive jurisdiction to charge (accuse) a person with violation of a state criminal law. Only a grand jury may indict (accuse) a person of a felony. A felony is any crime for which the sentence of incarceration may exceed one year. A state grand jury may also indict a person for a misdemeanor, a crime having a lesser sentence than a felony. An accused person may waive indictment and authorize a state prosecuting attorney to charge him by criminal information. A state common pleas court has exclusive jurisdiction to try a person charged with a felony. Comparably, persons may only be required to stand for trial for federal crimes amounting to felonies upon indictment by a federal grand jury. A federal grand jury may also indict (accuse) for a misdemeanor. A United States Attorney may prosecute by criminal information in misdemeanor cases or in felony eases when accusation by indictment is waived. United States district courts (federal trial courts) have exclusive jurisdiction to try persons accused of federal crimes.

The complaints of the plaintiffs in both actions are founded on 42 U.S.C. § 1983 (1964) (deprivation of civil rights under color of state statute); and, therefore, this court has jurisdiction of these actions by virtue of 28 U.S.C. § 1343(3) (4) (1957) (jurisdiction in civil rights cases). Jurisdiction under other sections is claimed, including 28 U.S.C. §§ 2201, 2202 (1958) (declaratory judgment). Abjuring damages the plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983 (1964).

Title 42 U.S.C. § 1983 (1964) is a frequent foundation for cases currently being brought in federal court. Enacted April 20, 1871, the Civil Rights Act of 1871, and its successors (now section 1983), soon will be a hundred years old. As here relevant this section provides:

Every person who, under color of any statute * * * of any State * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In applying section 1983, one must consider the effect of 28 U.S.C. § 2283 (1948). Known as the Anti-Injunction Law, section 2283 and its predecessors have been in force since early in this country’s history. Section 2283 states:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its juris *333 diction, or to protect or effectuate its judgments.

The Supreme Court of the United States recently enforced this statute in a non-civil rights case, Atlantic Coast Line R. R. v. Bhd. of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). As yet the Supreme Court has reserved but not ruled on the question whether an action brought under 42 U.S.C. § 1983 (1964) may constitute an exception to 28 U.S.C. § 2283 (1948). Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) were both based on section 1983. In these cases the Supreme Court recognizes that injunctive relief against a state criminal prosecution may be granted where irreparable injury is established. This requires proof of “special circumstances,” amounting to a bad faith criminal prosecution that has a “chilling effect” on First Amendment rights.

A recent application of Dombrowski, supra, and Cameron, supra, controlling on this court, is Honey v. Goodman, 432 F.2d 333 (6th Cir., October 9, 1970), a claim based on section 1983. The majority opinion, written by Judge Anthony J. Celebrezze, affirmed the trial judge’s refusal to request a three-judge court to consider the constitutionality of the Kentucky embracery law. He had declared the law constitutional. However, the case was remanded for an evidentiary hearing at which the appellants are to

bear the “heavy burden" of showing that the state instituted proceedings in bad faith and with no real hope of ultimate success, in order to chill free expression of unpopular ideas, * * *. [432 F.2d at 334]

The appellants had been indicted for embracery (a Kentucky crime defined to be “where one attempts to corrupt, or influence, or instruct a jury * * *”). The decision has direct significance because of its holding that a federal injunction against state court criminal proceedings may issue even after indictment “where proceeding may technically be under way, but not where the state trial of accused had begun; * * *.”

II.

On August 3, 1970, Governor Rhodes wrote Attorney General Brown that “We have reviewed together the status of investigation of the tragic disorders at Kent State University and the City of Kent during the first days of May this year.” The letter noted that the prosecuting attorney of Portage County had “informally asked my office to make $100,000 available to supplement the funds that he can expend on Grand Jury inquiries and prosecutions.” He noted that his staff, the Attorney General’s staff, and the Legislative Service Commission found the same answer:

[T]he State can finance a Grand Jury inquiry and any prosecutions resulting therefrom if the Governor, in present circumstances (as the General Assembly is in sine die adjournment), directs the Attorney General to investigate or prosecute.

The letter continues:

Only a Grand Jury and the Courts can diminish the half-informed and misinformed commentary on events at Kent State that still is heard. Only a Grand Jury can say who should face prosecution and for what.

Citing sections 109.02, 2939.10, and 2939.17 of the Ohio Revised Code, the Governor then directed the Attorney Genera] of Ohio:

[T]o investigate (1) acts leading to or inducing illegal or criminal acts in any way associated with “campus unrest” that took place in the City of Kent or on the Campus of Kent State University on or about May 1, 2, 3, 4 and 5, 1970 and (2) such illegal or criminal acts themselves. Your investigation shall include the legality of official response to such illegal or criminal acts and to the general temper and situation prevailing in the environs of Kent and Kent State Uni *334 versity before and during the dates mentioned.

It was this language that Judge Edwin W. Jones repeated in his charge to the Special Grand Jury. He then told the Special Grand Jury that “this, Ladies and Gentlemen, states the purpose of convening this Special Grand Jury and the area of your inquiry.”

Governor Rhodes concluded his letter to Attorney General Brown by saying:

This direction requires investigation up to and including a Special Grand Jury inquiry. As specified by Section 2939.10 of the Revised Code, such proceedings will be under your exclusive supervision and control.

In ordering an investigation of “acts leading to or inducing illegal or criminal acts in any way associated with ‘campus unrest’ * * *,” Governor Rhodes’ call appears to direct the Special Grand Jury to identify causes. Foreman Hastings apparently read the call that way. He testified the Grand Jury believed it should report “at least the causes as we saw them.” However, the scope of a governor’s call cannot enlarge the powers of a Special Grand Jury. Its proceedings are “of the same force and effect” as a regular grand jury, Ohio Rev.Code § 2939.17. Furthermore, under Ohio Rev.Code § 2939.10 the' Attorney General and his Special Counsel have and exercise the rights, privileges,, and powers of prosecuting attorneys. State ex rel. Doerfler, Prosecuting Attorney v. Price, Attorney General, 101 Ohio St. 50, 128 N.E. 173 (1920)..

By letter dated August 4, 1970, Attorney General Brown informed Judge Jones of the Governor’s direction to him; and he forwarded a copy of Governor Rhodes’ call, to investigate. His letter requested Judge Jones to select and to convene a Special Grand Jury in Portage County

for the purpose of proceeding in accordance with the foregoing on or about August 25, 1970, or as soon thereafter as you may determine to be practicable.

Pursuant to an order of August 12, 1970, from Judge Jones, the Commissioners of Jurors of Portage County on August 18, 1970, drew the names of 285 prospective jurors to serve for the September 1970 term, “and in the case of the Special Grand Jury to serve until such time as it is discharged.” The first 50 names of persons drawn from the jury wheel were summoned to appear for jury service on the Special Grand Jury “to be convened at the request of the Attorney General of the State of Ohio.”

The Special Grand Jury was impaneled by Judge Edwin W. Jones on September 14, 1970. Judge Jones appointed Robert R. Hastings as foreman from outside the jury wheel as empowered by Ohio Rev. Code § 2939.02. Before he charged the Special Grand Jury, Judge Jones administered the oath prescribed by Ohio Rev. Code § 2939.06, including its provision that:

The counsel of the state, your own, and your fellows, you shall keep secret unless called on in a court of justice to make disclosures; * * *.

By Ohio Rev.Code § 2939.07 the judge is required to charge the grand jurors after being sworn as to their duty. It specifies:

[He] shall call their attention particularly to the obligation of secrecy which their oaths impose, and explain to them the law applicable to such matters as may be brought before them. *335 revealed by Mr. Hastings under interrogation by Mr. Sheerer:

*334 At no point in his charge did Judge Jones authorize the Special Grand Jury to file a written report. However, Foreman Robert R. Hastings, in his trial testimony, volunteered that the filing of a grand jury report came up in a discussion between him and Judge Jones in the judge’s chambers on the first or second morning of the sessions. The judge’s feeling that a report should be filed was

*335 Q Does that complete your understanding of the purpose of the Grand Jury?

A Are you referring now to the fact that we made a report in connection with the indictments?

Q Well, perhaps.

A This was also indicated to us by Judge Jones, that it was very common — in fact, practically usual —in the State of Ohio for a Grand Jury to conduct the thing, and part — at the end of the proceedings was to issue a written report. He even mentioned — and we sort of chuckled — he didn’t think it would be necessary for our Special Grand Jury to visit the jail and make a report on the condition of the jail. But that he felt, in view of the seriousness of what had happened over there and the extent with which we were going to be involved in the investigation, that a report should be filed with our indictments, if any.

By order of September 5, 1970, Judge Jones and his fellow Judge Albert L. Caris had barred statements by witnesses, grand jurors, lawyers, and others. This order was relaxed on October 15, 1970. The supplemental order makes it clear that Judge Jones anticipated a report of the Special Grand Jury the next day. It reads:

* * * Special Counsel for the Attorney General may hold one (1) press conference on October 16, 1970 at which time they may present to the news media that portion of the report of the Special Grand Jury which is not secret and may answer only general questions pertaining to such portions of the report of the Special Grand Jury without giving any specific information, commenting on any of the evidence presented to the said Special Grand Jury or making any interpretation of such report.

The supplemental order further provided

* * * that a copy of this Supplemental Order shall be made available to the Special Counsel of the Attorney General and to all representatives of the news media participating in said press conference.

On October 16, 1970, an 18-page document was submitted to Judge Edwin W. Jones by Robert R. Hastings, foreman of the Special Grand Jury. The document consists of two titled parts. Page 1 is center-captioned:

ENTRY ON SPECIAL GRAND JURY

IN RE THE MATTER OF THE SPECIAL GRAND JURY:

Page 4 is headed “REPORT OF THE SPECIAL GRAND JURY.” This center heading is immediately below an introduction which reads: “Also their report in writing to the Court in the following words and figures, viz:”.

Bearing a file stamp “Court of Common Pleas, October 16, 1970,” the entry set forth on page 1 bears the court journal stamp, “Journal 113 page 374.” The entry lists the appearance of the Grand Jurors in court with their foreman and it reports his presentment of 30 bills of indictment to the court.

Pages 2 and 3 of the Special Grand Jury Report named 25 persons in alphabetical order specifying the offense or offenses of each named person. At the top of page 2 is the statement:

The following parties have not yet been arrested, and until they are, their eases are not to be entered upon the appearance docket, nor upon the trial docket, nor otherwise made public.

This language of the entry is based on Ohio Rev. Code § 2939.22 that specifies that “Secret indictments shall not be docketed by name until after the apprehension of the accused.” Since the returned indictments were secret indictments, pages 2 and 3 were removed from *336 the document and kept in the Clerk’s vault. By the time of this trial, however, all but three of the 25 indicted had been arrested. Accordingly, pages 2 and 3 have been restored to the document. Deleting the names and offenses of the three persons not then arrested it shows 22 names (see Hammond, Plaintiffs’ Exhibit 1). Since the hearing, the Clerk has supplied the court with the identification of the offenses and the dates of the offenses, but not the names of the persons not yet arrested.

Directed to the Honorable Edwin W. Jones, Judge of Court of Common Pleas, Portage County, Ohio, the Report consists of 14 pages, 4 through 18. Each page bears the stamp of a separate journal page in the Court Journal: Journal 113 page 375 through page 389. An unlabeled preface of the Report surveys the testimony and physical evidence heard and received by the Special Grand Jury. Parts I through VII chronicle the events of May 1 through May 4, 1970, interspersing findings of riots and criminal conduct. Part VIII quotes a statement issued May 3, 1970, by 23 “Concerned Faculty,” and, among other things, the Special Grand Jury says the 23 must share “responsibility for the tragic consequences of May 4, 1970.” In Part IX the Special Grand Jury identifies what it determines to be the causes of the “incidents occurring on the Kent State University campus on May 2nd., 3rd., and 4th. * * * ” Thus, it says “major responsibility” for these incidents rests “clearly with those persons who are charged with the administration of the University.” It renders moral and social judgments on policies, attitudes, and conduct of the university administration, and some faculty and students.

Below the conclusion of the Report on page 18 appears the date October 16, 1970, the words “Respectfully submitted,” and the signature “Robert R. Hastings, Foreman.” Under that appears a typed entry which reads: “There being no further business for said Special Grand Jury, they are recessed subject to the further order of the Court.” This entry is signed “Edwin W. Jones, Judge —Common Pleas Court.”

The only reference to the indictments that appears in the body of the Report of the Special Grand Jury is a statement in the second paragraph of the Report that the Special Grand Jury “presented 30 true bills covering 25 defendants and 43 offenses, considered by us.”

III.

A fundamental position of the plaintiffs is that the indictments are inseparably a part of the Report. Asserting that the Report is invalid, the plaintiffs argue that the indictments are tainted by the Report. Hence, it is urged that the Report, including the indictments, must be expunged.

It is evident from the journalized entry of October 16, 1970, regarding the Special Grand Jury, that the Special Grand Jury through its foreman presented to the court 30 bills of indictment, and that each indictment was endorsed a “true bill” and signed by the foreman, Robert R. Hastings. The entry reports the presentment of these bills of indictment to the court. These bills of indictment are neither physically attached to the document nor are they incorporated by reference. Each bill of indictment, endorsed a true bill, and signed by the foreman is separate and legally sufficient. Ruch v. State, 111 Ohio St. 580, 146 N.E. 67 (first syllabus) (1924). Indeed, an indictment cannot draw strength from the entry of the grand jury reporting the return of indictments. An indictment, void because it is unsigned by the foreman, cannot be cured by the entry of the grand jury that incorrectly reports that a secret indictment was signed by the foreman. Kennedy v. Alvis, 145 N.E.2d 361 (Franklin County C.P.1957).

Upon the pertinent evidence and under Ohio law determined to be applicable, it is concluded and declared that the 30 indictments are detached and self-sufficient; and they are not em *337 bodied in the Report of the Special Grand Jury.

At this point it is timely to consider another claim of the plaintiffs. The plaintiffs urge that this court should find the indictments insufficient because, as one of plaintiffs’ counsel argued orally, “I doubt if there is a single shred of evidence in this record that would show any basis for those indictments.” He argued further that as he reads Cameron, supra, “at least some evidence should be offered by the prosecution to support a finding by the court that Dombrowski relief is not warranted, that is, there must be some evidence to show that the charges were based on something.”

Cameron, supra, is not directly comparable. The persons charged with violating the newly enacted Mississippi anti-picketing law were being prosecuted on affidavits and arrest warrants. There were no indictments as there are in the present case. Even so the three-judge court made it clear in Cameron v. Johnson, 262 F.Supp. 873 (S.D.Miss.1966), a ruling affirmed by the Supreme Court, that the federal claim under section 1983 could not be concerned with the guilt or innocence of the state charges. The evidence received was permitted to compare court house picketing on the days involving the charges with picketing of the court house on other days for which the accused were not charged. It was deemed relevant to determine whether selective enforcement, amounting to bad faith, had occurred.

During the trial this court ruled out proposed testimony as to the events of May 4, 1970. It was offered allegedly to show bad faith of indictments that charge riot offenses on that day. The offer sought to contest a finding of the Report that “the gathering quickly degenerated into a riotous mob.” Relying on Costello v. United States, 350 U.S. 359, 363-364, 76 S.Ct. 406, 100 L.Ed. 397 (1956), this court concluded that

[T]his Court cannot, and should not, assume the role of a super Grand Jury [n]or * * * should [it] assume the role of a reviewing body to review the propriety of these indictments based on the claim here of inadequate] or incompetent evidence as it is offered in support of the claim of bad faith.

The law of Ohio conforms to Costello, supra. Turk v. State, 7 Ohio 240, Pt. 2; State v. Selby, Ohio Com.Pl., 126 N.E.2d 606, 607, 69 Ohio Law.Abst. 481 (1955) and Wickline v. Alvis, 103 Ohio App. 1, 144 N.E.2d 207 (1957). Thus, in State v. Selby, the court ruled:

Where an indictment of the Grand Jury is regular upon its face, there is a conclusive presumption that there was sufficient evidence to warrant the indictment; * * * and, consequently even the Court itself cannot inquire whether there was sufficient evidence before the Grand Jury to warrant its return of the indictments in question.

The indictments returned by the Portage County Special Grand Jury are deemed to be presumptively valid; and it is concluded that to show bad faith the plaintiffs in these cases cannot offer evidence that bears on the evidentiary adequacy or sufficiency of the indictments. In this trial it is found and declared that the state was under no duty to offer evidence to support the indictments.

IV.

One of the proposed conclusions of law of the Hammond plaintiffs states a basic claim of all plaintiffs. It reads:

By issuing its Report, the special Grand Jury violated the rights of the plaintiffs and other persons indicted to a fair trial in that in the said Report the special Grand Jury commented, made findings and conclusions and determinations of fact and law with respect to the very events in the charges set forth in said indictments and made unlawful predeterminations of guilt of those indicted, thereby depriving them of the presumption of innocence provided by the Constitution of the State of Ohio and the Constitution of the United States and in viola *338 tion of the rights, privileges and immunities of the indicted plaintiffs under 42 U.S.C., Section 1983.

The first syllabus of the opinion in State ex rel. Doerfler, Prosecuting Attorney v. Price, Attorney General, supra, defines the function of a grand jury:

The grand jury, in its inquest of crimes and offenses, and in its finding and presentation of indictments to the court of common pleas, does not exercise a judicial function. It only acts as the formal and constitutional accuser of crime and those it believes to be probably guilty thereof.

Since the grand jury “only acts as the formal and constitutional accuser of crime” and since it “does not exercise a judicial function,” it is fundamental that grand jury proceedings are non-adversary. In Wickline v. Alvis, supra, 144 N.E.2d at 210-211, Judge Bryant wrote:

Proceedings of the grand jury are not a trial but are more in the nature of an inquest. There are no parties, and no defendant has a right to appear before the grand jury; and, if he does appear, it is only upon permission granted and he then appears as a witness, not a defendant, and he has no right to take his attorney along with him.

Thus the instructions of Judge Jones to the Special Grand Jury are on sound legal ground when he told them:

As a Grand Jury you are not a trying body. You are simply an accusing body. Therefore it is not your province to determine in any case whether a person who may be accused of having committed a crime or offense is really guilty.

He told the Jury that it had “a different duty to perform.” Its duty is

to determine whether or not there is sufficient evidence to put the accused on trial before a petit jury or a trial jury.

As to the evidence needed to “find” an indictment, Judge Jones’ instructions were in general terms but accurate. He told the Grand Jurors:

[Y]ou ought to be fairly convinced that the crime charged has been committed insofar as the evidence goes.

He added:

[T]he Grand Jury ought not to indict unless convinced that the evidence produced, if it were unexplained and uncontradicted, would be sufficient to authorize a petit jury to convict that person of the crime which is imputed to him.

These instructions emphasize that the grand jury is not expected to hear all the evidence. The Ohio law is unequivocal. The grand jury proceedings, is an inquest and not a trial. An accused party is not permitted to have his attorney present. Hence, there can be no cross-examination of witnesses, so essential to bring out all the evidence.

Contrary to the judge’s explicit instruction that the Special Grand Jury is “not a trying body,” the Report in Parts I through VII, chronicling the events of May 1 through May 4, contains 70 findings.

As is true of pages 1, 2, and 3 of the “ENTRY ON SPECIAL GRAND JURY,” the first two paragraphs of the “REPORT OF THE SPECIAL GRAND JURY” closely follow the form and wording of the standard grand jury form published and sold by Barrett Brothers, Publishers of Springfield, Ohio, including the last sentence of the second paragraph, which reads:

The business of this Special Grand Jury has been transacted in an expeditious a manner as possible.

Then the Report takes off on its own. Because of its relevance, and since defense counsel alluded to the form in oral argument, a blank form, sua sponte, is designated a court exhibit and is made a part of the record.

In repeating in paragraph 3 that it received testimony from more than 300 witnesses, the Special Grand Jury did not disclose any secret. This total num *339 ber could be computed from the public court records of the names of witnesses who were subpoenaed or who appeared before the Grand Jury. But the Special Grand Jury violated its oath of secrecy when it asserted that these witnesses

have fairly represented every aspect, attitude, and point of view concerning the events which occurred in the city of Kent, Ohio and on the campus of Kent State University during the period of May 1, 1970 to May 4, 1970, inclusive.

The Report further breaches secrecy when it alleges that:

The persons called as witnesses, the order of their appearance, and the questions presented, clearly indicated an effort at complete impartiality with a full and complete disclosure of all available evidence. We are satisfied that each of these objects was accomplished.

In his charge, Judge Jones admonished the Grand Jurors that:

What is revealed in the Grand Jury room must remain locked forever in your minds and breasts unless you are required under the law to make disclosures in a Court of Justice.

Yet, in clear violation of this admonition of secrecy the Grand Jury reported that it

viewed and otherwise received all physical evidence believed to have any probative value, including numerous audio tapes, photographs, motion picture films, and physical evidence recovered at the scene.

Further opening their “locked * * * minds and breasts” the Grand Jury stated that it

has had available the independent investigative reports of the Federal Bureau of Investigation, Ohio Highway Patrol, Ohio Bureau of Criminal Identification and Investigation, and all other police agencies involved.

It then added:

Their reports and all pertinent information and evidence have been examined in detail.

To the extent that the Special Grand Jury Report described the evidence before the Jury, this court permitted trial interrogation of Special Counsel. Counsel’s testimony indicates that this last quoted statement of the Report is partly inaccurate and, therefore, misleading to the reader. The identified investigative reports were available to the Grand Jury. However, these reports were not introduced into evidence. Understandably they were not read in their entirety by the Grand Jurors. (The FBI report was described as consisting of 10,000 pages of statements of witnesses. It contains no conclusions.) Instead, selected portions of some of the volumes were read to the Grand Jury by Special Counsel. Special Counsel had examined the reports in detail; the Grand Jury did not. Apparently Special Counsel told the Grand Jury that it had examined the investigative reports in detail. But this is not what the Grand Jury Report states. The preface of the Report reflects an undoubtedly sincere effort to convince the reader of the depth and impartiality of its investigation, the credibility of its findings, and the cogency of its later moral and social judgments. Thus, the preface further says:

In addition, the Grand Jury has received a substantial amount of additional information and evidence that was not available to the police agencies at the time of their investigations. Some facts were discovered subsequent to the investigation of other agencies.

As held in State ex rel. Doerfler, supra, the grand jury serves only as an “accuser of crime” that makes findings of indictments based on probable cause. One of the Special Counsel admits that no such instruction was given to the Grand Jury. The Report fails to disclose that the Special Grand Jury’s determinations and findings can rest only on probable cause and “insofar as the evidence goes,” to quote from Judge Jones’ charge.

*340 Instead, the Special Grand Jury openly assumes the role of a careful trier of the fact as it concludes the preface of its Report:

The Grand Jurors have determined numerous questions of fact relative to the issues presented. The Grand Jurors wish to stress the fact that our findings are entirely our own and no outside influences were exerted. In view of the many conflicting and contradictory accounts previously published concerning these events, we feel it appropriate to report those findings at this time. They are as follows:

Part I of the Report states, in part:

The incidents originating on North Water Street in Kent, Ohio on Friday, May 1,1970, and which spread to other parts of the downtown area and the University, constituted a riot.

We find that no provocation existed for the acts committed there and that many persons participating in this riot were not students, but were of a type who always welcomed the opportunity to participate in the unjustified destruction of property.

One of the 25 persons indicted is indicted for the offense of riot, second degree, a misdemeanor (Ohio Rev.Code § 2923.52), on May 1, 1970. He is a plaintiff in the Hammond action. Another person is indicted for malicious injury to property, a misdemeanor (Ohio Rev. Code § 2901.01) or felony (Ohio Rev. Code § 2907.08).

Part II of the Report states, in part: We find that the rally on the Commons on Saturday, May 1, 1970, which resulted in the burning of the R.O.T.C. Building, constituted a riot. There can never exist any justification or valid excuse for such an act. The burning of this building and the destruction of its contents was a deliberate criminal act committed by students and non-students. Nor did the rioters stop with the burning of the R.O.T.C. Building. They also set fire to the archery shed and moved from there to East Main Street on the front campus where they engaged in further acts of destruction and stoned the members of the National Guard as they entered Kent.

Arson is arson, whether committed on a college campus or elsewhere. The fact that some of the participants were college students changes nothing, except perhaps to further aggravate the seriousness of the offense.

With reference to the indictments involving May 2, 1970, two persons are indicted for attempting to bum property, a felony (Ohio Rev.Code § 2907.06). Three persons, including one plaintiff, are indicted for the offense of arson of uninhabited building, a felony (Ohio Rev. Code § 2907.03). Eight persons, including three plaintiffs, are indicted for the offense of riot, first degree, a felony (Ohio Rev.Code § 2923.53). One person is indicted for the offense of riot, second degree, a misdemeanor (Ohio Rev. Code § 2923.52). Six persons, including two plaintiffs, are indicted for the offense of interfering with firemen at scene of a fire, a misdemeanor (Ohio Rev.Code § 2923.43). One person, a plaintiff, is indicted for the offense of throwing stones at another, a misdemeanor (Ohio Rev.Code § 2901.251), and two persons are indicted for the offense of assaulting and striking a fireman, misdemeanor or felony (Ohio Rev.Code § 2901.252).

Part III of the Report is devoted to detailed findings that allege that the Kent State University police department is totally inadequate. Referring to the fire at the ROTC Building on May 2, 1970, the Report adds to earlier findings:

The persons who attacked the firemen numbered no more than 4 or 5. The total number of those persons who actually attempted to fire the building did not exceed ten or twelve. It is obvious that the burning of the R.O. T.C. building could have been prevented with the manpower then available. If the burning had been prevented it is reasonable to believe that the events *341 which followed on May 3rd and 4th would not have occurred.

Part IV of the Report commences by saying:

The Grand Jury finds that the events of Sunday, May 3, 1970, on campus and at the corner of Lincoln Street and East Main Street in Kent, Ohio constituted a riot.

There follows a long paragraph which recites findings as to these events. One of the plaintiffs is indicted for inciting a riot on May 3, 1970, a felony, Ohio Rev. Code § 2923.54).

Part V of the Report, except for the last sentence, reads:

The gathering on the Commons on May 4, 1970, was a violation of the directive of May 3rd issued by the University Vice President in charge of Student Affairs. We find that all the persons assembled were ordered to disperse on numerous occasions, but failed to do so. Those orders