Commonwealth v. Kaplan (Lawyers Weekly No. 09-018-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT 1582CR00580 COMMONWEALTH vs. ALAN KAPLAN Memorandum and Order on Defendant’s “Motion to Dismiss Indictments Due to Impairment of the Grand Jury Proceedings” On July 26, 2013, a vacant family dwelling at 71 Spooner Rd. in Brookline, Massachusetts was consumed by flames. The property was owned by an LLC of which the defendant, Alan Kaplan, was a principal. Kaplan had insured the property for $ 800,000. On September 21, 2015, and Norfolk County Grand Jury returned indictments against Kaplan alleging arson of the dwelling, accessory before the fact to arson, arson of the building, and burning to defraud an insurance company. These indictments came after thirteen meetings of the grand jury stretching from October 17, 2013 through September 21, 2015. The Commonwealth’s theory of the case was that Kaplan, pressed for money, and saddled with a property that had become essentially valueless, solicited an acquaintance named Steve McCann to torch it. The indictments were returned after McCann, who had entered into a plea agreement with the Commonwealth, testified before the grand jury admitting to setting the fire and implicating Kaplan. The matter is now before the court on Kaplan’s motion to dismiss the indictments, because, he argues, “the manner in which the Commonwealth presented the evidence to the grand jury impaired the integrity of … [its] proceedings.” The familiar and long-standing rule in this Commonwealth is that “a court will not review the competency or sufficiency of the evidence before a grand jury.” Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984). There are two notable exceptions to this rule. First, the Supreme Judicial Court has held that a court may consider whether the grand jury received “sufficient evidence to establish the identity of the accused . . . and [whether there was] probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted). The defendant does not argue that the evidence was insufficient to establish probable cause to believe that the crimes for which he has been indicted had been committed, and to believe that he had committed them. Instead, the defendant relies on the second exception to the general rule, which holds that an indictment may be dismissed where “the integrity of the grand jury proceeding was impaired.” O’Dell, 392 Mass. at 446-447. It is the defendant’s burden to show impairment of the grand jury proceeding, and that burden is a heavy one. Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993), citing Commonwealth v. Shea, 401 Mass. 731, 734 (1988). As the Supreme Judicial Court has explained, “[d]ismissal of an indictment based on impairment of the grand jury proceedings […]