Metropolitan News-Enterprise


Thursday, September 16, 2004


Page 1


Press Attack on Warning to Grand Jury Witnesses Rejected


By KENNETH OFGANG, Staff Writer/Appellate Courts


A standard admonition to criminal grand jury witnesses advising them they can be held in contempt of court if they disclose the questions asked, the answers given, or anything else they learned in the grand jury room is not a prior restraint on members of the media, the Sixth District Court of Appeal ruled yesterday.

The justices affirmed retired Santa Cruz Superior Court Judge William M. Kelsay’s order denying a writ petition brought by the company that publishes the San Jose Mercury News. The petitioner contended that its rights as a newsgathering organization were being violated because the district attorney was scaring witnesses out of talking to reporters, even about matters not covered by the admonition.

Kelsay is the jurist assigned by Chief Justice Ronald M. George to hear the case against Judge William Danser, a member of the Santa Clara Superior Court prior to being convicted of conspiring with a former police detective to fix traffic tickets. Danser, who resigned in July, was sentenced to 90 days in confinement as part of three years’ probation.

San Jose Mercury News Inc. filed its writ petition in September 2003, shortly after the Santa Clara County Criminal Grand Jury began hearing testimony in the Danser case. It complained that one of the newspaper’s reporters was interviewing a witness waiting to testify when an assistant district attorney came by and told the reporter that witnesses could be “thrown in jail” for discussing their testimony.

The witness heard the comment and “later declined to give specific details about his testimony,” the petition alleged, and another prospective witness told the reporter that he would not speak with her unless the district attorney approved.

The Mercury News claimed that the grand jury and the prosecutor’s office had a custom and practice of using the threat of contempt to intimidate potential witnesses who would otherwise talk to reporters. The County Counsel’s Office, responding on behalf of the grand jury and District Attorney George Kennedy, denied any intent to interfere with the newspaper’s constitutional rights but acknowledged that witnesses are warned that disclosure of grand jury secrets is punishable as contempt.

The admonition does not preclude witnesses from speaking with the media generally and does not preclude them from disclosing information acquired independently of the grand jury proceedings, counsel said. The California District Attorneys Association filed an amicus brief in support of the defendants.

At a hearing held on the petition after Danser was indicted, Kelsay concluded that the admonition was constitutional and denied the petition.

He commented, however:

“So I know that the San Jose Mercury wants me to somehow admonish the district attorney and perhaps convey to witnesses that they are free to talk about what they know about something preexisting that hearing, I just simply want to emphasize, because I’m not sure exactly what occurred out there, in what context, and that it should be understood that a person is free to discuss what may be coincidentally the content of one’s testimony in that hearing....”

Justice Eugene Premo, writing for the Court of Appeal, said Kelsay’s ruling was correct.

The petition, he explained, only challenged the constitutionality of the admonition regarding post-testimony conduct, not of the alleged pre-testimony warning given by the assistant district attorney.  And to the extent the judge’s comment could be construed as a ruling on the earlier warning, the newspaper cannot complain because it prevailed, the justice commented.

But the judge correctly held that the standard admonition not to publicly discuss one’s grand jury testimony until the official transcript is released is not a prior restraint on the news media, Premo declared, comparing the warning to a gag order.

“Although [the grand jury admonition] may function somewhat like a prior restraint by impeding the flow of information, the information impeded is not the type that is generally available to the public,” the justice reasoned. “Indeed, it is undisputed that there is no First Amendment right of the public to access grand jury proceedings. Our Supreme Court has emphatically determined that ‘grand jury secrecy is the rule and openness the exception, permitted only when specifically authorized by statute.’”

The case is San Jose Mercury News Inc. v. Criminal Grand Jury of Santa Clara County, H026796.


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