Access to grand jury information and material

They meet in “a virtual bunker,” The Washington Post recently reported. Special elevator keys and closed-to-the-public passageways help shuttle them swiftly and secretly to their meeting place, sealed off from the rest of the building.

A meeting of top presidential advisers?

No — a gathering of grand jurors in U.S. District Court in Alexandria, Va.

The super-secret proceedings, in a federal courthouse where several high-profile cases have been tried in the past year, illustrate to critics how excessive secrecy hinders journalists — and ultimately the public — from effectively monitoring courts.

While Alexandria might be a more extreme example, it is a sign of secrecy surrounding grand juries nationwide. California prosecutors, concerned about protecting grand jurors’ privacy in Michael Jackson’s case on alleged child molestation charges, moved jurors from the main courthouse to a secret location, sending the press scrambling across Santa Barbara County and giving “a whole new meaning to the term ‘runaway jury,’” quipped Boston media lawyer Jeffrey Pyle of Prince Lobel Glovsky & Tye.

Although the First Amendment allows grand jury witnesses — if one can reach them — to talk to the media about their testimony, recent court decisions restrict the scope of what they can disclose under state law. In September, a California appeals court upheld a warning to witnesses not to divulge anything they learn as a result of testifying before a grand jury. A federal appeals court validated a similar secrecy rule in Colorado last year.

Reporters are often stymied in their attempts to obtain grand jury records as well. Long after a grand jury has finished its work, courts may still keep transcripts of the proceedings under wraps because in the court’s view, the interest in secrecy outweighs the public’s right to know.

This report examines the law governing journalists’ access to grand jury transcripts, witnesses and ancillary proceedings. It also explores how much reporters can reveal about their own testimony before a grand jury.

What is a grand jury?

Grand juries are summoned to evaluate a prosecutor’s evidence and decide whether it supports indicting, or formally charging, someone accused of a crime. They are always used in federal criminal investigations, and in criminal prosecutions by many states, such as New York. A grand jury may have other functions as well; in California, for example, it often acts as a “watchdog” that secretly investigates and then publicly reports on local government affairs.

According to the American Bar Association, grand juries are so named because of the relatively large number of jurors impaneled — up to 23 — as opposed to a petit jury or trial jury, which usually has only six or 12 members. The U.S. Court of Appeals in Washington, D.C., in 1998 described a federal grand jury this way:

“Grand juries summon witnesses and documents with subpoenas. Witnesses, including custodians of documents, report on the scheduled date not to a courtroom, but to a hallway outside the room where the grand jury is sitting. The witness must enter the grand jury room alone, without his or her lawyer. No judge presides and none is present. . . . Inside the grand jury room are sixteen to twenty-three grand jurors, one or more prosecuting attorneys, and a court reporter. . . . The witness is sworn, and questioning commences, all to the end of determining whether ‘there is adequate basis for bringing a criminal charge.’” (Internal citations omitted.) (In re Dow Jones & Co., Inc.)

Grand jury proceedings have been held in secret since the 1600s. The secrecy rule, adopted from England, has become an integral — some say essential — part of the American criminal justice system. There is no First Amendment right of public access to grand jury proceedings. Participants, except witnesses, are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.

The U.S. Supreme Court in 1979 identified several reasons for maintaining such secrecy. First, without the assurance of confidentiality, many prospective witnesses would hesitate to come forward willingly, knowing that the people against whom they testify would find out about it; second, those who did come forward would be less likely to testify “fully and frankly” because they would be vulnerable to retribution and inducements; third, people about to be indicted might flee, or try to influence individual grand jurors to vote against indictment; and finally, it protects those who are accused, but not indicted, from public scorn. (Douglas Oil v. Petrol Stops Northwest)

Courts take apparent — and not-so-apparent — violations of the grand jury secrecy rule seriously. In Providence, R.I., WJAR television reporter James Taricani was being fined $1,000 a day in October for refusing to reveal who leaked him an incriminating video surveillance tape used in the grand jury “Plunderdome” investigation of former Providence mayor Vincent “Buddy” Cianci’s administration. The fine had swelled to more than $75,000 as of late October, and prosecutors were asking the court to increase the daily amount. In California, the San Francisco Chronicle and the San Jose Mercury News were resisting efforts by federal investigators probing how the newspapers received transcripts of grand jury testimony in the BALCO steroids scandal.

And in Florida, a trial judge threatened a news organization with criminal penalties if it published information from grand jury transcripts in the case of Justin Barber, who is accused of killing his wife. First Coast News, a Gannett television network of ABC and NBC affiliates, obtained the transcripts from the state prosecutor’s office, which had released them voluntarily as public records. As of late October, a Florida appeals court had yet to rule on a motion to quash the prior restraint order.

Requesting access

Before an indictment is issued, reporters may file a motion for access with the judge who is presiding over the grand jury, media attorney Jim Lake of Holland & Knight said. Post-indictment, the media may move to “intervene,” or become a party to the case, to assert the public’s interest in disclosure of grand jury materials. In states like Florida, where courts are covered by the state open records law, journalists may request a copy of the transcripts if they were released to the defense during discovery, Lake said.

Alternatively, the press may simply ask to be heard without formally intervening. Los Angeles Times attorney Susan Seager of Davis Wright Tremaine recently tried to oppose the sealing of grand jury transcripts in the murder case against music producer Phil Spector, but was silenced by the judge who said she had no standing — a position Seager disputes.

“It’s very clear under California law, and I would argue under the First Amendment in any court, that the press has standing to ask for grand jury [transcripts] to be unsealed once they become court records,” Seager said.

Obtaining transcripts

Records of federal grand jury proceedings remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury,” according to Rule 6(e)(6) of the Federal Rules of Criminal Procedure. It is left to the court to determine when to release such records.

Access to state grand jury transcripts varies. In California, transcripts of grand jury testimony become public record once an indictment is returned, unless a defendant can show a reasonable likelihood that release of part or all of the transcripts would prejudice his right to a fair trial.

Other states have no such law. A Massachusetts trial judge recently unsealed all court documents except the grand jury transcripts in Commonwealth v. Pitsas, a case involving a retired dentist charged with accidentally poisoning an infant.

When the media seeks disclosure of a grand jury transcript, a court balances the government’s interest in secrecy against the public’s interest in disclosure. The press should argue “that there is an important public interest in seeing what is in the grand jury transcripts,” especially in cases involving botched prosecutions or government corruption, said Lake, who submitted a friend-of-the-court brief for the media in United States v. Aisenberg.

In Aisenberg, the parents of a missing infant sued the government after federal prosecutors misled the court about evidence that was used to indict the couple for allegedly lying to investigators. A trial court judge ordered the complete disclosure of all the grand jury transcripts and the government appealed. The Court of Appeals in Atlanta (11th Cir.) reversed in February of this year, concluding that the trial court erred in deeming the government’s interest in grand jury secrecy to be “minimal.”

One argument often advanced in favor of disclosure is that the information contained in the grand jury materials is already public knowledge, so releasing it would cause no additional harm. In one of several cases involving the impeachment of President Bill Clinton, the White House accused the Office of Independent Counsel of violating grand jury secrecy. The New York Times reported that OIC prosecutors hoped to secure an indictment against Clinton for perjury from the grand jury that was then investigating him. The U.S. Court of Appeals in Washington, D.C., agreed it would ordinarily violate court rules to reveal that a grand jury was investigating someone, but in this case it was no secret the grand jury was investigating Clinton — he himself had said so on national television. (In re Sealed Case No. 99-3091 (Office of Independent Counsel Contempt Proceeding))

But even if the media has revealed grand jury secrets, the information may still be entitled to some protection from disclosure. Indeed, the argument that much has already been publicized about a subject may actually backfire on the party seeking disclosure. In Aisenberg, one of the reasons the court gave for keeping the grand jury transcript sealed was that evidence of the prosecution’s misconduct in the case already had been aired publicly at great length. The lower court was wrong when it decided disclosure was necessary “so that the public can know about this misdirected prosecution,” the appellate court concluded. “The public already knows.”

It is not always the government that tries to keep grand jury materials hidden. In a criminal case, the defense often opposes their release while the prosecution favors it, or at least does not object to it. In the Spector case, for example, the district attorney’s office argued the grand jury transcript was a public record that should be released.

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© 2004 The Reporters Committee for Freedom of the Press