
    Commonwealth v. Karl Clemmey
    Superior Court, Bristol, SS
    No. BRCR20031327
    Memorandum Dated May 17, 2004
   Connon, J.

A prosecutor need not present all exculpatory evidence to the grand jury. Commonwealth v. O’Dell 392 Mass. 445, 447 (1984). However, “(w]hen the prosecutor possesses evidence which would greatly undermine the credibility of evidence likely to affect the grand jury’s decision to indict, the prosecutor must alert the grand jury to the existence of such evidence.” Commonwealth v. McGahee, 393 Mass. 743, 746 (1985). Furthermore, if the prosecutor does not communicate these circumstances to the grand jury, “then the appropriate remedy may be dismissal of the indictment.” Commonwealth v. Connor, 393 Mass. 838, 854 (1984). Since there is “no comprehensive rule or statement as to what does and what does not constitute impairment of the integrity of the grand jury process,” dismissal must be determined on a case by case basis. Commonwealth v. Pond, 24 Mass.App.Ct. 546, 550 (1987).

In the present case, the prosecutor failed to present exculpatory evidence to the grand j ury that would have likely affected their decision to indict. The grand jury was never informed that the Massachusetts Wetlands Protection Act (“Act”), G.L.c. 131, §40, contains an agricultural exemption, which specifically exempts from both its civil and criminal prohibitions any and all “work performed for normal maintenance or improvement of land in agricultural use . .Nor did the prosecutor inform the grand jury of Mr. Clemmey’s belief that this exemption applied to his conduct in this case. The prosecutor should have presented this information to the grand juiy to allow them to consider the possibility of the defendant’s lack of intent to violate the Act as well as the defense of the agricultural exemption. Since the grand jury was not made aware of the agricultural exemption, a circumstance which undermines the credibility of the evidence and is likely to have affected their decision to indict, then the appropriate remedy is to dismiss the indictment.

ORDER

It is hereby ORDERED that the defendants’ motion to dismiss all counts of the indictment is ALLOWED without prejudice.  