A state judge in California granted Friday a defense attorney’s request to seal the transcript of criminal grand jury testimony on the grounds that releasing the document to the public would interfere with the defendant’s right to a fair trial.
The transcript of the testimony, sealed by Judge Lisa Novak of the San Mateo County Superior Court, details evidence the grand jury used to determine that the defendant, Alexander Robert Youshock, 18, should stand trial for an alleged failed massacre attempt at his high school, the San Mateo Daily Journal reported.
The defense counsel requested that the testimony be sealed, along with related court filings by the defense and prosecution, out of concern that the jury pool might become tainted if certain parts of the transcript were made public, according to Assistant District Attorney Karen Guidotti. Guidotti initially opposed the sealing request, arguing that the transcript should be kept public, but said the court could redact any passages that might compromise jury selection in the criminal trial.
“I didn’t think that the defense had met the burden they need to,” in order to seal the entire testimony from the public, Guidotti said. Novak’s sealing order applies to the entire testimony and to both court briefs.
Although she had argued to keep the transcript open, Guidotti said that releasing certain parts of the testimony, such as the defendant’s personal journal, would have been problematic for the criminal trial.
“I think it’s important to have transparency in the courtrooms as much as we can, but I don’t think that [the judge's] decision was unreasonable. It is a very sensational case, and obviously we want to be able to try the case in this county. So, it’s in all of our interests to make sure that the jury pool is not poisoned,” she said.
Although federal law generally requires criminal grand jury testimony to remain sealed, state laws vary on the release of grand jury information to the public. In California, grand jury testimony is made public 10 days after an indictment is filed by a court reporter, during which time the defense can bring a motion to seal the transcript, Guidotti said.
In response to Novak's seal order, some California lawyers have reacted with surprise and disappointment. Duffy Carolan, an attorney based in San Francisco, said by e-mail that "sealing the entire grand jury report, as opposed to specific portions found to be prejudicial to a defendant's case, is unusual."
Carolan also said that for a judge to issue a seal order, the defendant must show that disclosure of the testimony would make it difficult to find an unbiased jury and because the crimes Youshock is accused of have been so highly publicized, jurors in the criminal trial are likely to know some of the facts of the case.
"Complete ignorance of the facts is not required of a juror. [It is] hard to imagine that the report in its entirety met the standard for sealing [because] so much of the information about this case already has been made public," she said.
Sealing a grand jury testimony to ensure that the criminal trial does not have to be moved out of San Mateo County is also problematic for the rights of the public and the transparency of the courts, according to Carolan. "Courts are to consider — in extreme cases — a venue change as an alternative to sealing. That is how important the public's right of access to judicial proceedings is."