The arrest of the founders of the New Times for revealing the
contents of an overly broad Grand Jury subpoena was not only an
egregious example of prosecutorial harassment by Maricopa County
Attorney Andrew Thomas and his hand-picked ‘special prosecutor’ Dennis
Wilenchik, it may also have been a blatant misuse of the law. I have
never heard of a witness being arrested for divulging information
relating to himself from a Grand Jury proceeding.
I generally don’t blog in a lawyerly style, or at least I try not to. But I’m going to make an exception here since the topic of this post is essentially a matter of statutory interpretation. I’ll make some allowances for a general readership, but I’ll just apologize in advance if the going gets a bit turgid and get on with it.
Testimony, the names
of witnesses, and records under the review of a Grand Jury are
confidential, and criminal penalties or contempt citations for those
who reveal such material are appropriate, though somewhat uncommon. But
when you consider the law more closely, look at the lack of precedent
for Wilenchik’s and Thomas’ action, and consider the legitimate policy
purposes behind Grand Jury secrecy, their actions begin to look much
less like law enforcement, and a lot more like conscious and calculated abuse of the legal
process.
It struck me as a little odd that witnesses would be arrested for
revealing the contents of a subpoena for their own records; the
requirement of secrecy is intended to prevent the party being
investigating from knowing that they under scrutiny and taking steps to
cover their tracks, or to prevent embarrassment or legal exposure
should a third party get a hold of sensitive material that would be
closely held if not for the Grand Jury’s investigatory powers.
The courts have clearly articulated several additional reasons for
Grand Jury secrecy: to protect the integrity and progress of
the investigation, to protect the innocent people from public
disclosure that they were under investigation, and to protect witnesses
from subornation or intimidation. None of these policy purposes are
served by an accused or a witness being barred from disclosing the
contents of testimony or materials related only to themselves.
So, I did a truly minimal bit of research in "Grand Jury Law and
Practice" by Beale, the unofficial handbook for Grand Jury practice,
which is certainly the minimum I would expect of a prosecutor taking
the unusual step of arresting witnesses for violation of Grand Jury
confidentiality. I literally only had to skim the chapter on Secrecy
of Proceedings to begin to have grave doubts about the propriety of the
actions of the Maricopa County Attorney and his special prosecutor. I
can see now quite clearly why the State Bar is investigating their actions in this matter.
Arizona’s law, as is just about every state’s, is largely a
reflection of the Federal Rules of Criminal Procedure regarding Grand
Jury practice; under the Federal Rules it is only those associated with
the actual proceedings of the Grand Jury – the jurors, the
attorneys, court staff who are privy to the proceedings – who are barred
from disclosures by criminal and contempt penalties. Witnesses are
free to discuss and divulge their own testimony; in fact, it
is highly improper for a prosecutor to try to convince a witness that he
required to keep his testimony secret.
Arizona’s law regarding disclosures seems somewhat more broad
(§13-2812), making it a misdemeanor for "a person" to "disclose to
another the nature or substance of any grand jury testimony or any
decision, result or other matter attending a grand jury proceeding." So
what does that mean? And does it include a subpoenant disclosing the
contents of their own subpoena duces tecum, like the one New Times was hit with?
First, it is important to remember the reasons why we hold such
materials in confidence. It is largely to protect the materials
produced in response to the subpoena from disclosure to third parties,
not to prevent the public disclosure of an abusive subpoena by the
witness it is served upon. The use of §13-2812 as a weapon to silence a
subpoenant who is complaining of a violation of his rights flies in the
face of the entire body of Grand Jury practice law, undermines the
public accountability of our public officials using the Grand Jury
system, and does nothing to serve the legitimate policy purposes of the
grant of secrecy to Grand Juries. Sanctions could only be justified if
the subpoenant’s actions disrupt the investigation by alerting a
suspect that they are under investigation. Consider a bank or and ISP
whose records are subpoenaed as part of an investigation of one or more
of their customers. Divulging the subpoena in such a case could
possibly impede the investigation; when the party under investigation
is the subpoenant themselves, such a justification for punishment is
lacking.
Most states that follow the outlines of the Federal Rules
specifically by uniformly excluding witnesses from the reach of the
confidentiality rule. Arizona itself does not specifically enumerate
witnesses as being bound by the obligation. Further, the Supreme Court
has struck down state statutes barring witnesses from disclosing their
testimony before a Grand Jury on First Amendment grounds. Butterworth v. Smith,
494 U.S. 624 (1990). There is, therefore, good constitutional and legal
reasons to believe that §13-2812 cannot be applied to a witness
disclosing their own testimony. If a witness cannot be punished for
revealing their own testimony or presentments, can they or
should they be punished for revealing the contents of the subpoena that
compelled that testimony or production of evidence?
Just what is covered by Grand Jury secrecy? The question hinges on
what is considered a "matter occurring before the Grand Jury." The
language used for this term of art in Arizona is a "matter attending a
grand jury proceeding." Certainly documents produced in response to a subpoena duces tecum
qualify, though, according to a long line of federal rulings, only if
their disclosure would reveal something about the proceedings before the
Grand Jury. Records existing prior to and independent of the Grand Jury
investigation are exempt from secrecy requirements.
The purpose of that
prohibition is to protect the Grand Jury’s process, and to protect
witnesses from having their testimony or evidence disclosed to third
parties – indeed that is by far the most litigated aspect of Grand Jury
evidence disclosure. The disclosure of the subpoena itself may reveal
matters attending the proceedings of the Grand Jury: the thrust of
their investigation can likely be inferred by the production demands in
the subpoena. But when the subject of the subpoena is also the target
of the investigation, and also the one disclosing the subpoena, are any
of the purposes protected by Grand Jury secrecy harmed? That
is a question that might plausibly be answered in a variety
of ways, and the lack of binding precedent on that answer might
ultimately save Thomas’ and Wilenchik’s bacon.
For me, the answer to the question is that the purposes of Grand
Jury secrecy are not implicated by the New Times’ revelation of the
subpoena. In fact, a great public service was done to check the abuses
of a special prosecutor who was out of control. I can’t imagine why
Wilenchik’s outrageous demands escaped the notice of the Grand Jury’s
presiding judge, except that such oversight tends to be very hands off – a cynic would even say ‘non-existent’.
Arizona’s judges should certainly be more vigilant regarding Grand
Juries empaneled by the Maricopa County Attorney in the future, and
especially watchful if Dennis Wilenchik is acting as a special
prosecutor.
My view of the matter is bolstered by the fuller context of
Arizona’s statutory provisions relating to Grand Jury secrecy.
Statutes, when their terms are not clear, are often interpreted in
conjunction with other statutes concerning the same subject. Given such
a broader ambit for determining statutory meaning, there may be much
less to argue about than when §13-2812 is considered in isolation. Part
of the broader context is §21-411(B) that lays out quite specifically
what must not be disclosed as a "matter attending a grand jury
proceeding": the statute enjoins the reporter and typists working on
the transcript "not to disclose any testimony or the name of any
witness." Arguably, this is what is actually intended to be afforded
protection under Arizona’s Grand Jury statutes, and it clearly does not include the
subpoena itself, nor are the witnesses themselves within the scope of the obligation of secrecy regarding their own
testimony and presentments, and especially not when the target of the investigation is the subpoenant.
I can’t begin to hazard a guess as to how the State Bar will veiw
these matters, but they are likely to be taking amicus briefs on the matter, and we’ll
have a look at their reasoning when the matter is closed. If I’m feeling particularly ambitious I might take a look at whether Thomas’ maintaining this prosecution against the New Times for the past couple years might constitute malicious prosecution. I’ll say now, that there’s an awful high bar to clear in maintaining a suit for malicious prosecution against a public prosecutor, and with good reason, but I’ve seldom seen a weaker case maintained for more clearly political ends than this one.
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