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.