Court to reexamine access to grand jury materials

From the Summer 2003 issue of The News Media & The Law, page 17.

By Emily Harwood

An upcoming case in the U.S. Court of Appeals in Atlanta (11th Cir.) reexamines the issue of whether grand jury records should be disclosed. Although grand juries historically have been permitted a great deal of secrecy, some believe this tradition seriously impairs the public’s ability to understand important issues.

In U.S. v. Aisenberg, the government is appealing U.S. District Court Judge Steven Merryday’s January decision in which he awarded a Florida couple access to transcripts from the grand jury proceedings that led to their indictments on charges of conspiracy and making false statements to law enforcement officials.

“It’s a very rare decision,” said Gregg Thomas, chair of the media law team at Holland & Knight, the firm filing a friend-of-the-court brief on behalf of the Tampa Tribune, The Miami Herald, WFLA-TV in Tampa and The Reporters Committee for Freedom of the Press. “[Federal] Rule 6(e), which has been around for a very long time, makes grand jury transcripts virtually sacrosanct. It’s a rare time when grand jury transcripts are released to the public.”

The incidents leading up to the case began in November 1997, when Marlene Aisenberg called 911 and reported that her 5-month-old daughter had been kidnaped. Suspecting that Marlene and her husband, Steven, had a role in the infant’s disappearance, the county sheriff’s office received permission to electronically intercept conversations in their home. The surveillance yielded 2,600 conversations, a 27-page grand jury report, and a six-count indictment against the Aisenbergs.

The indictments, although later dismissed, received much publicity. The U.S. Attorney held a press conference and published a news release to announce the indictment. A summary of the indictment, available on the Internet, quoted about 20 excerpts of conversations said to have been recorded at the Aisenberg home.

Statements in the indictment, attributed to the Aisenbergs, strongly suggest the couple’s guilt. According to Merryday’s decision, the statements, as reported by prosecutors, include discussions of stories they could tell the police and concerns about neighbors testifying against Steven. One night, according to court documents, Marlene allegedly told her husband, “The baby’s dead and buried! It was found dead because you did it! The baby’s dead no matter what you say — you just did it!”

The media’s brief says that the government asserted throughout the course of the prosecution that recorded conversations contained audible, incriminating evidence. Merryday, however, found none of this evidence. In his decision, the Tampa-based judge said that the disparity between what the prosecution reported and what was actually on the tapes was “shocking.”

“With respect to the supposedly inculpatory matters quoted in the indictment . . . I heard none of it,” Merryday wrote.

The completion of grand jury proceedings diminished the harms of releasing the transcripts, Merryday wrote in his decision. Additionally, the privacy interests of the Aisenbergs did not seem at issue, because they were the ones seeking disclosure.

“Although the Aisenbergs’ indictment is dismissed, the details that led to the indictment are unknown both

to them and the public. . . With only the most minimal and inconsequential countervailing considerations, the Aisenbergs’ request is reasonable and fair,” Merryday wrote.

The Eleventh Circuit granted a stay for the release of the transcripts that will continue for the length of the appeal, Thomas said. As of late July, oral arguments had not been scheduled, he said.

Disclosure of these records is important to both the media and the public, Thomas said. “Because of the finding of abuse, it’s critical for the public to be able to look into that inner sanctum of government and be able to evaluate. You can’t do that without transcripts.”

Without looking at the actual transcripts of a proceeding, all one can do is speculate, he added.

Although most court proceedings are generally open to the public, the Supreme Court has held no right of public access exists for grand jury proceedings. The Federal Rules of Criminal Procedure require the closure of hearings “to the extent necessary to prevent disclosure of a matter.” The rules also state that records also must be sealed for an appropriate extent and length of time.

State access to grand jury records varies, said Kelli Sager, a media lawyer who practices in Los Angeles.

California, for example, allows for the release of grand jury materials following an indictment. This rule is fairly automatic, although a court is required to give the defendant at least 10 days to object to the disclosure. If no indictment is returned, the materials remain sealed, she said.

States such as Florida apply a stricter rule, generally prohibiting disclosure of the records. “Because of the way grand juries have been set up, they’ve been able to get a lot of information that is not available any other way,” Sager said. Increased access to grand jury records would further public understanding of government operations, she said.

Grand jury records released

Records from a St. Louis County grand jury proceeding enhanced the understanding of an undercover drug deal that led to the fatal shooting of two men by police officers on June 12, 2000. Obtaining the grand jury records was the result of a two-year effort, said Michael Sorkin, a reporter for the St. Louis Post-Dispatch who covered the story and who drew attention to the issue through his articles. Sorkin quoted concerned civil rights leaders, and he talked with local political, religious and community leaders about the shooting.

During an interview with the federal prosecutor, Sorkin and projects editor Richard Weil asked him to make his report public, and he did.

The county prosecutor eventually released the recorded proceedings as well.

“The testimony, followed by interviews with key officials, produced details far beyond anything previously revealed by police and prosecutors about how the detectives reacted — and what went wrong,” Sorkin wrote in an article about the incident.

The fatal incident occurred during a scheduled drug deal between undercover officers and the two men in the parking lot of a Jack-in-the-Box restaurant. Police reports cited in the Post-Dispatch said that when the officers approached the men, who were still in their car, the duo tried to drive away. The officers, fearing the driver was planning to run them over, shot and killed the two men.

Sorkin also quoted the county prosecuting attorney as saying that all witnesses to the incident testified that the car made some forward motion.

Grand jury records told a different story. According to Sorkin’s review of the proceedings, only three of the 13 officers who testified said the victims’ car moved. Two of them were the officers who fired the shots. Four detectives said they did not see the car travel toward the officers at all.

Sorkin said the Post-Dispatch got the information released “by doing what newspapers do best — putting pressure on the movers and shakers in the community.” As a result, most of the information was available to the public, who could then make their own decisions about what happened, he said.

The reporting of an incident involving police officers in San Francisco also was enhanced after grand jury information became public.

In February 2003, the city’s police chief and six top aides were indicted on conspiracy charges stemming from an alleged attempt to cover up a brawl reportedly involving three off-duty rookie cops.

During the grand jury proceedings, most of the reporters and others following the case thought the three officers would be indicted but were not sure if the charges would go higher up in the police force, Roth said.

The night the proceedings wrapped up, he received a tip that at least one person named on the indictment was a deputy chief. Roth broke the story.

“The next morning it became common knowledge to reporters that the rest of the command staff was indicted as well,” he said.

Transcripts of the proceedings were not officially released by the government, but reporters were able to either access the copies in circulation or find sources who were willing to characterize the information in the transcripts, Roth said.

Probably the most important piece of information disclosed, Roth said, pertained to a statement made by the assistant district attorney during closing arguments. In these proceedings, the attorney said the prosecution lacked the evidence to sustain the conspiracy charge.

“It opened up lines of questioning from the press’ standpoint that we wouldn’t have thought to open up, the most obvious being, ‘If you told the grand jury that you didn’t think you had enough, why did you go ahead with the indictment?'” he said.

Following the disclosure of this information, a judge dismissed the conspiracy charges against all seven of the officers.

Cases such as those in St. Louis County and San Francisco demonstrate a need for access to grand jury proceedings. The Aisenberg case may pave the way to increased grand jury openness.

If the case is decided in favor of disclosure, Florida media attorney Thomas said, it could have a favorable effect on the release of other grand jury records.

“But I don’t think grand jury secrecy is going to go away tomorrow,” he said.