RWU law professors argue for release of 38 Studios grand jury records


In court brief, RWU School of Law professors
argue for release of 38 Studios grand jury records

ACLU of RI files «friend of the court» brief backing Governor Raimondo’s petition
for documents, saying «The people of Rhode Island have a right to know.»

BRISTOL, R.I., April 13, 2017 – Two Roger Williams University School of Law
professors wrote a «friend of the court» brief that the ACLU of Rhode Island filed
Wednesday to support Governor Raimondo’s petition for release of the 38 Studios
grand jury records.

Professors Jared A. Goldstein and Andrew Horwitz argued that while grand jury
records are usually secret, the 38 Studios case – in which the state provided a
$75-million loan guarantee for Curt Schillings’ ill-fated video-game venture —
represents exactly the kind of «exceptional circumstance» in which secrecy should
not apply.

«Unlike a typical grand jury investigation involving allegations of private crime by
private individuals, the investigation of 38 Studios addressed a matter of public
policy of extraordinary importance that involved the decision by the state to invest
$75 million in public funds,» Goldstein and Horwitz wrote. «In a well-functioning
democracy, the people have a need to know how the state decides to spend public
funds, and this need vastly outweighs any minimal interests in secrecy present

The Rhode Island Superior Court is weighing whether to release the grand jury
records, and Attorney General Peter F. Kilmartin’s office has objected to their
release. In response to Kilmartin’s arguments, Goldstein and Horwitz said no one is
claiming that grand jury records should be released «whenever» the public has an
interest in grand jury proceedings. At issue, they say, is whether the 38 Studios
probe represents the kind of exceptional case that should overcome the ordinary
principle of grand jury secrecy, and they say answer is clear.

«Because it is their money at stake, the people of Rhode Island have a fundamental
right to know how the decisions involving 38 Studios were made,» they wrote. «Unless
they know how these decisions were made, the people of Rhode Island cannot take
corrective action to prevent similar decisions in the future.»

While Kilmartin suggests disclosure might be appropriate in the future after all
witnesses are dead, the RWU law professors say: «Rhode Islanders need to understand
today what went wrong with 38 Studios so that they can properly oversee state
government, prevent future abuses and avoid a recurrence of the mistakes that were
recently made. It is not enough that our grandchildren may someday understand what
happened. For representative democracy to work, Rhode Islanders need to know now
what led public officials to make crucial decisions on how to spend the state’s

The 38 Studios investigation involved interviews with former Governor Donald L.
Carcieri, former Economic Development Corporation staff, members of the EDC board
and almost every member of the 2010 General Assembly, Goldstein and Horwitz noted.
«Rhode Island taxpayers have a right to know how these officials explained the
decision to spend $75 million of their tax money on 38 Studios,» they wrote.

Courts have ordered the release of grand jury records in other cases in which the
public has a overriding right to know, Goldstein and Horwitz said. They cited the
release of President Richard Nixon’s testimony before the Watergate grand jury and,
closer to home, the release of grand jury records related to the 2003 Station
nightclub fire.

Goldstein and Horwitz emphasized that the strongest protection against government
corruption and abuse of power comes not from laws or government institutions but
from a well-informed electorate that keeps a close eye on its government.

«The need to keep the public informed about what its government is doing is at the
heart of representative democracy,» they stated. «As James Madison wrote: ‘A popular
government without popular information, or the means of acquiring it, is but a
prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern
ignorance. And a people who mean to be their own governors, must arm themselves with
the power which knowledge gives.»

A copy of the amicus brief is available at:

About RWU: With campuses on the coast of Bristol and in the heart of Providence,
R.I., Roger Williams University is a forward-thinking private university committed
to strengthening society through engaged teaching and learning. At RWU, small
classes, direct access to faculty and guaranteed opportunity for real-world projects
ensure that its nearly 4,000 undergraduates – along with hundreds of law students,
graduate students and adult learners – graduate with the ability to think critically
along with the practical skills that today’s employers demand. Roger Williams is
leading the way in American higher education, confronting the most pressing issues
facing students and families – increasing costs, rising debt and job readiness.