Secret Justice: Grand juries

The grand jury system will always

be shrouded in secrecy, but in

many cases, information from

grand juries can be obtained by

reporters — at least after the

investigation or subsequent

trial is over. Yet reporters

should also know that

prosecutors and judges take

leaks from grand juries —

like those in recent cases involving

Justin Barber in Florida and

Providence, R.I., mayor Vincent

“Buddy” Cianci — very seriously,

Fall 2004 and will often go after reporters

The Reporters Committee who reveal information obtained For Freedom of the Press through those leaks. Secret Justice: A continuing series Access to grand jury

The American judicial system has, historically, been open to the public, information and material and the U.S. Supreme Court has con- tinually affirmed the presumption of openness. However, as technology ex- They meet in “a virtual bunker,” The What is a grand jury? pands and as the perceived threat of Grand juries are summoned to evaluate violence grows, individual courts Washington Post recently reported. Special attempt to keep control over proceed- elevator keys and closed-to-the-public pas- a prosecutor’s evidence and decide whether ings by limiting the flow of information. sageways help shuttle them swiftly and se- it supports indicting, or formally charging, Courts are reluctant to allow media ac- cretly to their meeting place, sealed off someone accused of a crime. They are al- cess to certain cases or to certain pro- from the rest of the building. ways used in federal criminal investiga- ceedings, like jury selection. Courts A meeting of top presidential advisers? tions, and in criminal prosecutions by many routinely impose gag orders to limit No — a gathering of grand jurors in U.S. states, such as New York. A grand jury may public discussion about pending cases, District Court in Alexandria, Va. have other functions as well; in California, presuming that there is no better way to The super-secret proceedings, in a fed- for example, it often acts as a “watchdog” ensure a fair trial. Many judges fear that eral courthouse where several high-profile that secretly investigates and then publicly having cameras in courtrooms will some- reports on local government affairs. how interfere with the decorum and cases have been tried in the past year, illus- solemnity of judicial proceedings. Such trate to critics how excessive secrecy hin- According to the American Bar Associ- steps, purportedly taken to ensure fair- ders journalists — and ultimately the public ation, grand juries are so named because of ness, may actually harm the integrity of — from effectively monitoring courts. the relatively large number of jurors im- a trial because court secrecy and limits While Alexandria might be a more ex- paneled — up to 23 — as opposed to a petit on information are contrary to the fun- treme example, it is a sign of secrecy sur- jury or trial jury, which usually has only six damental constitutional guarantee of a rounding grand juries nationwide. or 12 members. The U.S. Court of Appeals public trial. California prosecutors, concerned about in Washington, D.C., in 1998 described a The public should be the beneficiary protecting grand jurors’ privacy in Michael federal grand jury this way: of the judicial system. Criminal pro- Jackson’s case on alleged child molestation “Grand juries summon witnesses and ceedings are instituted in the name of documents with subpoenas. Witnesses, in- “the people” for the benefit of the pub- charges, moved jurors from the main court- lic. Civil proceedings are available for house to a secret location, sending the press cluding custodians of documents, report on members of the public to obtain justice, scrambling across Santa Barbara County the scheduled date not to a courtroom, but either individually or on behalf of a and giving “a whole new meaning to the to a hallway outside the room where the “class” of persons similarly situated. The term ‘runaway jury,’” quipped Boston me- grand jury is sitting. The witness must public, therefore, should be informed dia lawyer Jeffrey Pyle of Prince Lobel enter the grand jury room alone, without — well informed — about trials of pub- Glovsky & Tye. his or her lawyer. No judge presides and lic interest. The media, as the public’s Although the First Amendment allows none is present. . . . Inside the grand jury representative, needs to be aware of grand jury witnesses — if one can reach room are sixteen to twenty-three grand threats to openness in court proceed- them — to talk to the media about their jurors, one or more prosecuting attorneys, ings, and must be prepared to fight to and a court reporter. . . . The witness is ensure continued access to trials. testimony, recent court decisions restrict In this series, the Reporters Com- the scope of what they can disclose under sworn, and questioning commences, all to mittee takes a look at key aspects of state law. In September, a California ap- the end of determining whether ‘there is court secrecy and how they affect the peals court upheld a warning to witnesses adequate basis for bringing a criminal newsgathering process. We will exam- not to divulge anything they learn as a charge.’” (Internal citations omitted.) (In re ine trends toward court secrecy, and result of testifying before a grand jury. A Dow Jones & Co., Inc.) what can be done to challenge it. federal appeals court validated a similar Grand jury proceedings have been held The previous installments of this “Se- secrecy rule in Colorado last year. in secret since the 1600s. The secrecy rule, cret Justice” series concerned anony- Reporters are often stymied in their at- adopted from England, has become an in- mous juries (Fall 2000), gag orders on tempts to obtain grand jury records as well. tegral — some say essential — part of the trial participants (Spring 2001), access American criminal justice system. There is to alternative dispute resolution proce- Long after a grand jury has finished its dures (Fall 2001), access to terrorism work, courts may still keep transcripts of no First Amendment right of public access proceedings (Winter 2002), secret dock- the proceedings under wraps because in the to grand jury proceedings. Participants, ets (Summer 2003), and judicial speech court’s view, the interest in secrecy out- except witnesses, are forbidden from dis- (Spring 2004). weighs the public’s right to know. closing matters related to the grand jury, This report examines the law governing even after the grand jury’s activities have This report was researched and written journalists’ access to grand jury transcripts, concluded. by Kimberley Keyes, who is the 2004-2005 witnesses and ancillary proceedings. It also The U.S. Supreme Court in 1979 iden- McCormick-Tribune Legal Fellow at the explores how much reporters can reveal tified several reasons for maintaining such Reporters Committee. about their own testimony before a grand secrecy. First, without the assurance of con- jury. fidentiality, many prospective witnesses

PAGE 2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS FALL 2004 AP PHOTOS Reporters and news organizations have been met with contempt charges related to grand jury information in the investigation of Providence, R.I., mayor Vincent “Buddy” Cianci , left, and similar charges have been threatened in the case of Justin Barber, center, accused of killing his wife. The media unsuccessfully sought access to grand jury transcripts in the case of record producer Phil Spector, right. would hesitate to come forward willingly, And in Florida, a trial judge threatened sure of grand jury materials. In states like knowing that the people against whom they a news organization with criminal penalties Florida, where courts are covered by the testify would find out about it; second, if it published information from grand jury state open records law, journalists may re- those who did come forward would be less transcripts in the case of Justin Barber, who quest a copy of the transcripts if they were likely to testify “fully and frankly” because is accused of killing his wife. First Coast released to the defense during discovery, they would be vulnerable to retribution and News, a Gannett television network of ABC Lake said. inducements; third, people about to be in- and NBC affiliates, obtained the transcripts Alternatively, the press may simply ask dicted might flee, or try to influence indi- from the state prosecutor’s office, which to be heard without formally intervening. vidual grand jurors to vote against had released them voluntarily as public Los Angeles Times attorney Susan Seager of indictment; and finally, it protects Davis Wright Tremaine recently those who are accused, but not in- tried to oppose the sealing of grand dicted, from public scorn. (Douglas jury transcripts in the murder case Oil v. Petrol Stops Northwest) Although the First Amendment allows grand against music producer Phil Spec- Courts take apparent — and not- jury witnesses — if one can reach them — to tor, but was silenced by the judge so-apparent — violations of the talk to the media about their testimony, recent who said she had no standing — a grand jury secrecy rule seriously. In court decisions restrict the scope of what they position Seager disputes. Providence, R.I., WJAR television can disclose under state law. “It’s very clear under California reporter James Taricani was being law, and I would argue under the fined $1,000 a day in October for First Amendment in any court, that refusing to reveal who leaked him the press has standing to ask for an incriminating video surveillance grand jury [transcripts] to be un- tape used in the grand jury “Plun- sealed once they become court derdome” investigation of former Provi- records. As of late October, a Florida ap- records,” Seager said. dence mayor Vincent “Buddy” Cianci’s peals court had yet to rule on a motion to administration. The fine had swelled to quash the prior restraint order. Obtaining transcripts more than $75,000 as of late October, and Records of federal grand jury proceed- prosecutors were asking the court to in- Requesting access ings remain confidential “to the extent and crease the daily amount. In California, the Before an indictment is issued, reporters as long as necessary to prevent the unautho- San Francisco Chronicle and the San Jose may file a motion for access with the judge rized disclosure of a matter occurring be- Mercury News were resisting efforts by who is presiding over the grand jury, media fore a grand jury,” according to Rule 6(e)(6) federal investigators probing how the attorney Jim Lake of Holland & Knight of the Federal Rules of Criminal Proce- newspapers received transcripts of grand said. Post-indictment, the media may move dure. It is left to the court to determine jury testimony in the BALCO steroids to “intervene,” or become a party to the when to release such records. scandal. case, to assert the public’s interest in disclo- Access to state grand jury transcripts

FALL 2004 SECRET JUSTICE: GRAND JURIES PAGE 3 AP PHOTO The news media tried to gain access to grand jury materials in the investigation into Marlene and Steve Aisenberg after the Justice Department admitted that prosecutors misled a federal judge. varies. In California, transcripts of grand the grand jury transcripts and the govern- entitled to some protection from disclo- jury testimony become public record once ment appealed. The Court of Appeals in sure. Indeed, the argument that much has an indictment is returned, unless a defen- Atlanta (11th Cir.) reversed in February of already been publicized about a subject may dant can show a reasonable likelihood that this year, concluding that the trial court actually backfire on the party seeking dis- release of part or all of the transcripts would erred in deeming the government’s interest closure. In Aisenberg, one of the reasons the prejudice his right to a fair trial. in grand jury secrecy to be “minimal.” court gave for keeping the grand jury tran- Other states have no such law. A Massa- One argument often advanced in favor script sealed was that evidence of the pros- chusetts trial judge recently unsealed all of disclosure is that the information con- ecution’s misconduct in the case already court documents except the grand jury tran- tained in the grand jury materials is already had been aired publicly at great length. The scripts in Commonwealth v. Pitsas, a case public knowledge, so releasing it would lower court was wrong when it decided involving a retired dentist charged with cause no additional harm. In one of several disclosure was necessary “so that the public accidentally poisoning an infant. cases involving the impeachment of Presi- can know about this misdirected prosecu- When the media seeks disclosure of a dent Bill Clinton, the White House ac- tion,” the appellate court concluded. “The grand jury transcript, a court balances the cused the Office of Independent Counsel of public already knows.” government’s interest in secrecy against violating grand jury secrecy. The New York It is not always the government that tries the public’s interest in disclosure. The press Times reported that OIC prosecutors hoped to keep grand jury materials hidden. In a should argue “that there is an important to secure an indictment against Clinton for criminal case, the defense often opposes public interest in seeing what is in the grand perjury from the grand jury that was then their release while the prosecution favors it, jury transcripts,” especially in cases involv- investigating him. The U.S. Court of Ap- or at least does not object to it. In the ing botched prosecutions or government peals in Washington, D.C., agreed it would Spector case, for example, the district attor- corruption, said Lake, who submitted a ordinarily violate court rules to reveal that ney’s office argued the grand jury transcript friend-of-the-court brief for the media in a grand jury was investigating someone, but was a public record that should be released. United States v. Aisenberg. in this case it was no secret the grand jury In Aisenberg, the parents of a missing was investigating Clinton — he himself had Interviewing witnesses infant sued the government after federal said so on national television. (In re Sealed Federal rules and the majority of states, prosecutors misled the court about evi- Case No. 99-3091 (Office of Independent Coun- either expressly or impliedly, allow grand dence that was used to indict the couple for sel Contempt Proceeding)) jury witnesses to disclose what transpired allegedly lying to investigators. A trial court But even if the media has revealed grand when they testified. judge ordered the complete disclosure of all jury secrets, the information may still be continued on page 6

PAGE 4 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS FALL 2004 AP PHOTO A housekeeper for Patsy and John Ramsey, pictured, was not allowed to discuss in a book questions asked of her before a grand jury looking into the death of JonBenet Ramsey.

What can reporters report about grand jury testimony? At a time when reporters are being his case, ruling that a total and permanent tions were that were asked by the grand subpoenaed to appear before grand juries ban on disclosure of witness testimony was jury. I think the First Amendment pro- in at least five cases, including one grand necessary to ensure the proper functioning tects that sort of compelled interaction,” jury investigating who leaked the name of the grand jury. The U.S. Court of Ap- he said. “You’re not there on your own, of CIA operative Valerie Plame to the peals in Atlanta (11th Cir.) reversed. The you’re not there as a volunteer, you’re press, it warrants examining what, if any- U.S. Supreme Court affirmed the appeals there because the government says you thing, journalists can report after they’ve court, agreeing that the reasons for pre- have to be there. And I really think you testified. serving grand jury secrecy did not warrant have the ability to talk about or discuss what “The issue right now is ripe, because prohibiting witnesses from ever disclosing your experience was before the grand jury.” we have . . . reporters [possibly] going to their testimony. At least one court, however, has nar- jail for refusing to testify before the grand “[T]he interests advanced by the por- rowly interpreted Butterworth to permit jury,” said media lawyer Gregg D. Tho- tion of the Florida statute [preventing wit- grand jury witnesses to divulge only what mas of Holland & Knight, who repre- nesses from revealing their own testimony] they knew before they testified. sented a reporter in the 1990Butterworth . . . are not sufficient to overcome [Smith’s] In 2003, the U.S. Court of Appeals in v. Smith case. First Amendment right to make a truthful Denver (10th Cir.) ruled that a house- In Butterworth, the U.S. Supreme statement of information he acquired on keeper for the parents of murdered child Court ruled that journalists — like any his own,” the Supreme Court concluded. JonBenet Ramsey could not disclose any- other witnesses — have a First Amend- Although the high court specified that thing she learned through testifying be- ment right to publish the details of their witnesses are free to talk once the grand fore the grand jury in a book she intended grand jury testimony once the investiga- jury has ended its investigation, Thomas to write. In upholding a Colorado admo- tion has ended. said he believes it would have ruled the nition to all grand jurors to keep their Newspaper reporter Michael Smith same way if the grand jury in his client’s testimony secret “until and unless” an was summoned to testify before a grand case had still been in session. He pointed indictment issued, the court cited the jury after he wrote articles about alleged out that the rule governing federal grand importance of preserving the state’s in- wrongdoing by the prosecutor’s office jury secrecy — Rule 6(e) — places no re- terest in grand jury secrecy. (Hoffmann- and sheriff’s department of Charlotte striction on witnesses. Pugh v. Keenan) County, Fla. Smith was warned that Flor- “Which means that if you’re a witness “[W]e are convinced a line should be ida law prohibited grand jury witnesses before a federal grand jury, and you’re not drawn between information the witness from ever disclosing their testimony in related to the government — you’re just possessed prior to becoming a witness any way, and that a violation could result sort of a lay witness — you can immediately and information the witness gained in criminal punishment. leave and discuss what happened before the through her actual participation in the Smith planned to write a story and grand jury,” he said. grand jury process,” the court said. The perhaps a book about the investigation, The Supreme Court also limited its hold- U.S. Supreme Court in January declined including his own testimony and experi- ing to the disclosure of witness “testimo- to review the decision. ences before the grand jury. He sued in ny,” declining to decide whether witnesses Thomas said the issue of reporters federal court to win a declaration that the may talk about their “experience” before disclosing their grand jury testimony state law prohibiting his disclosure un- the grand jury. But Thomas said he thinks could arise in the current climate, noting constitutionally restricted his freedom of such speech would be protected. that a few journalists actually have testi- speech. He also sought an order prevent- “I absolutely think the First Amend- fied before the Plame grand jury. ing the state from prosecuting him. ment protects that — that is, what it felt like “It would be interesting to see what The federal district court threw out being before a grand jury, what the ques- some of those reporters had to say,” he said.

FALL 2004 SECRET JUSTICE: GRAND JURIES PAGE 5 “There are no restrictions on witnesses to materials used in the course of grand jury 60 Minutes ticks before the grand jury,” said media attorney proceedings, and even ancillary proceed- Kevin T. Baine of Williams & Connolly in ings. It applies to civil — or watchdog — off prosecutor Washington, D.C. “If anybody is called as grand juries as well as criminal ones. a witness to the grand jury — whether as a As previously noted, Rule 6(e)(6) of the It is not altogether uncommon for witness to a crime, or a reporter, or some- Federal Rules of Criminal Procedure pro- journalists to be subpoenaed to testify one suspected of a crime — that person is vides that records, orders and subpoenas before grand juries as a result of some- completely free to walk out of the grand pertaining to grand jury proceedings are thing they publish or air. jury room, stand in front of a TV camera kept sealed from the public “to the extent Veteran 60 Minutes reporter Mike and recite in detail everything that hap- and for such time as is necessary to prevent Wallace, along with former executive pened in that grand jury room.” disclosure of matters occurring before a producer Don Hewitt and producer In fact, President Clinton appeared on grand jury.” Bob Anderson, were called as witness- national television on the same day he tes- The U.S. Court of Appeals in Philadel- es in the mid-1990s in connection with tified before the grand jury and revealed his phia (3rd Cir.) held in 1997 that there is no a story they aired about Tyson Foods status as a witness. “I’m not saying it’s presumptive First Amendment or common honcho Don Tyson, according to me- inconceivable that a judge could ever gag a law right of access to court documents dia attorney Kevin T. Baine of Will- witness, but I’m not aware of it ever hap- involving materials presented before a grand iams & Connolly. pening,” Baine said. jury. The court in that case determined that A grand jury was investigating But in September, the California Court a sentencing memorandum that mentioned whether then-Secretary of Agriculture of Appeal in Santa Clara County upheld a the names of grand jury witnesses, in appar- Mike Espy had received illegal gifts warning given to grand jury witnesses not ent violation of the federal rules, and other from Tyson. The prosecutor wanted to disclose their testimony, or anything pertinent documents were sufficiently re- to know whether Wallace had gathered they learned during their appearance be- lated to the grand jury proceedings to jus- any incriminating information on Ty- fore the grand jury, until the transcript is tify sealing them. (United States v. Smith) son that was not broadcast, Baine said. made public. The same court later relied on Smith to “In effect, all Wallace had to say The case arose after a newspaper unsuc- deny a newspaper’s request to unseal court was, ‘I put together my piece. Any- cessfully tried to interview grand jury wit- documents related to an apparent contempt thing that was interesting was on the nesses in connection with the criminal proceeding against federal prosecutors for air,’” Baine recalled. “In essence the investigation of a local judge. The San Jose leaking secret grand jury information to the answer was, ‘I don’t have any informa- Mercury News complained that a witness media. (In re Newark Morning Ledger Co.) tion that I withheld from the public declined to talk to one of its reporters after Grand juries that act as government that was of interest on the subject. a prosecutor told the reporter, within ear- watchdogs often issue to a court reports of What I got, I put on the air.’ shot of the witness, that anyone who spoke their findings and recommendations, which “It was a nonevent,” he added. “It publicly about his testimony could be then become public records. In 1988, the was interesting simply because Mike thrown in jail. Another prospective witness Supreme Court of California concluded [Wallace] got to see how the grand jury refused to be interviewed without the dis- that a grand jury could not disclose as part worked.” trict attorney’s permission. The appeals of its report “raw evidentiary materials,” Baine said Anderson created a fuss court ruled that the admonition read to all including hearing transcripts and interviews when he started taking notes during witnesses was not an unconstitutional “pri- conducted by the prosecutor, gathered dur- the proceedings so he could tell the or restraint” on the press. (San Jose Mercury ing a watchdog investigation that failed to lawyer what went on. Annoyed, the News, Inc. v. Criminal Grand Jury of Santa yield any indictments. prosecutor went outside to talk to Baine, Clara County) Numerous media organizations had chal- who saw nothing wrong with the prac- The ruling appears to conflict with a lenged a lower court judge’s refusal to file tice. 1990 U.S. Supreme Court case, Butter- the report and his sealing of the evidentiary “But he’s a TV producer,” the pros- worth v. Smith (see sidebar, page 5), which materials, arguing such actions violated the ecutor complained. holds that all grand jury witnesses have a public’s right to scrutinize public affairs. “Maybe you should have thought First Amendment right to disclose the con- But the state high court, emphasizing the about that before you called him into tents of their testimony, at least once the importance of grand jury secrecy, upheld the grand jury,” Baine replied. “And grand jury has concluded its activities. But the trial judge’s actions. (McClatchy News- maybe you should let him go.” because the court in San Jose Mercury News papers v. Superior Court) 60 Minutes never reported on its limited its discussion to the single issue of involvement with the Espy grand jury, prior restraint, it expressly declined to an- Ancillary proceedings Baine said. alyze the constitutionality of the warning Under federal rules, not only are grand “I think really the government want- under Butterworth. jury proceedings themselves closed to the ed to call Mike Wallace and Don Hewitt One thing is certain: witnesses are com- public, but so are hearings on matters “af- for the star quality of having them pletely free to discuss anything they knew fecting a grand jury proceeding.” Such an- before the grand jury, to be honest prior to testifying before the grand jury. cillary proceedings often involve matters with you,” he said. “Because at the end That doesn’t mean they will be willing to do such as motions to quash grand jury sub- of the day, I don’t think their testimony so, however — especially when a prosecu- poenas, motions requesting immunity from was that critical. I don’t think it was tor may threaten to throw them in jail for prosecution and motions to compel testi- critical at all. I don’t think the prosecu- talking, San Jose Mercury News lawyer James mony. Federal courts therefore first must tor regarded it as particularly helpful Chadwick noted. determine whether a particular proceeding — which is why their grand jury ap- is related to or affects a grand jury proceed- pearances were pretty short.” Obtaining materials ing. This is done on a fact-specific, case-by- The general rule of secrecy also applies case basis.

PAGE 6 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS FALL 2004 AP PHOTO President Clinton is sworn in for his 1998 videotaped grand jury testimony in the Kenneth Starr probe. The federal court in Washington, D.C., ruled that some of the grand jury information could be released upon a finding that secrecy was no longer necessary to prevent disclosure of matters still before a grand jury.

Once determined to be ancillary to a jury.” Pursuant to this “limited means for authority to hide investigations from the grand jury proceeding, a matter is pre- disclosing non-secret matters,” the court public: “[T]he government has at least some sumed secret. The press, in theory, can suggested that cases before the grand jury power to control information which is its overcome the presumption by showing that could appear on the public docket under a ‘own creation,’ and to which there is other- the need for disclosure outweighs the need nondescript caption such as “In re Grand wise ‘no First Amendment right of access.’” for secrecy. But case law indicates that such Jury Proceedings,” followed by a “miscella- (Doe v. Ashcroft) an argument has a slim chance of succeed- neous” case number. It sent the case back to ing, especially if the grand jury’s investiga- the trial court to consider this option. tion is ongoing. The trial court subsequently refused to Cases cited in this article: Federal courts have held that the media create a generic rule that would require had no right of access to papers or proceed- public docketing of all grand jury ancillary Butterworth v. Smith, 494 U.S. 624 (1990) ings involving: a claim by an anonymous proceedings. The case then went to the Doe v. Ashcroft, 334 F. Supp. 2d 471 grand jury witness that he was the victim of appeals court a second time. In upholding (S.D.N.Y. 2004) illegal electronic surveillance by the gov- the lower court’s decision, the appeals court Hoffmann-Pugh v. Keenan, 338 F.3d 1136 ernment (In re Grand Jury Subpoena); alle- noted that the media may seek a redacted (10th Cir. 2003) gations of government misconduct in public docket in a specific case. If the trial In re Dow Jones & Co., Inc., 142 F.3d 496 releasing a sentencing memorandum that court denies the request, it must give a (D.C. Cir. 1998) allegedly violated the grand jury secrecy reason for doing so beyond the fact that it In re Grand Jury Subpoena (John Doe No. 4 v. rule (United States v. Smith); and objections burdens administrators. The court also can- John Doe No. 1), 103 F.3d 234 (2d Cir. from Monica Lewinsky’s lawyer to a grand not deny the request based simply on the 1996) jury subpoena and other ancillary matters fear of leaks. The appeals court agreed with In re Newark Morning Ledger Co., 260 F.3d during the investigation of President Clin- the media that the local rule “means what it 217 (3d Cir. 2001) ton. (In re Dow Jones & Co., Inc.) At the state says in providing a limited right to access In re Sealed Case No. 99-3024, 199 F.3d 522 level, a California appeals court last year with respect to grand jury ancillary pro- (D.C. Cir. 2000) extended the rule of grand jury secrecy to ceedings.” (In re Sealed Case, No. 99-3024) In re Sealed Case No. 99-3091 (Office of motions to quash grand jury subpoenas So what does all this mean to journalists Independent Counsel Contempt Proceeding), served on an archdiocese in a priest sex seeking access? There is no First Amend- 192 F.3d 995 (D.C. Cir. 1999) abuse case. (Los Angeles Times v. Superior ment right of access to grand jury proceed- Los Angeles Times v. Superior Court, 7 Cal. Court) ings. The longstanding rule of secrecy covers Rptr. 3d 524 (Cal. Ct. App. 2003) That is not to say the press can get no participants, documents, and other materi- McClatchy Newspapers v. Superior Court, 751 information at all about grand jury ancil- als, as well as matters that are related to P.2d 1329 (Cal. 1988) lary proceedings. In the Dow Jones case, the grand jury proceedings. It may even apply San Jose Mercury News, Inc., v. Criminal U.S. Court of Appeals in Washington, D.C., to witnesses to some extent. Grand Jury of Santa Clara County, 19 Cal. recognized that a local rule of criminal Unless the law specifically permits dis- Rptr. 3d (Cal. Ct. App. 2004) procedure allowed the trial court to open closure, the presumption of secrecy most United States v. Aisenberg, 358 F.3d 1327 matters “upon a finding that continued likely will trump the interest in openness. (11th Cir. 2004) secrecy is not necessary to prevent disclo- As one federal district judge noted, in a United States v. Smith, 123 F.3d 140 (3d Cir. sure of matters occurring before the grand recent case questioning the government’s 1997)

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