Petition — Rees v. County of Los Angeles

FILED

MAR 22 1984

7 . . 5 97 ALEXANDER L. STEVAS.

Misc. No. CLERK

Seiad

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JOHN REES,

Appellant,

a Ve a

COUNTY OF LOS ANGELES,

Appellee.

IN RE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

GRAND JURY INVESTIGATION

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

JURISDICTIONAL STATEMENT

JOHN REES

2805 St. Paul Street

Baltimore, MD 21218

301/366-2531

Petitioner Pro Se

QUESTION PRESENTED

1. May a state which by statute pro-

tects journalists from being compelled to

disclose “in any legal proceeding the

source of any news or information that was

obtained for the purpose of publication"

Or other media dissemination deny that

protection to a resident journalist prac-

ticing that profession without interrup-

tion for seventeen years by ordering him

not only to appear before the grand jury

of another state to testify but also to

produce information that falls within the

protective language of the statute.

TABLE OF CONTENTS

Opinions Below e*eeeeeeeeneeneeeensneneeneeee

Jurisdictional Statement ....cccecees

Pertinent Constitutional

Provisions and Statutes ....ceceecess

Statement of the Case:

Procedural History eeeeeeeeeneseeeeeee

Relevant FactS cecccccccccccccccvcces

Reasons for Allowance of the Writ ...

CONCLUSION cccccccccccccccccccccccccs

APPENdices .ccccccccccccccscccccccece

Appendix A: Order of the Maryland

Court of Appeals eeeeoeeeeeeeeeeneeee

Appendix B: Opinion of the Mary-

land Court of Special Appeals ...

Appendix C: Relevant Proceedings

of September 15, 1983, in the

Circuit Court for Baltimore

City, Maryland eeeseeeeeeeeeeeeeaeene

Notice of Appearance ......seeseeees

Service eeeneeeaeeeeeeeeeeeeeeeeeaeeeee

- 7 of Vat nt *.

lh eee ie a Ee EE LS

45

47

i

TABLE OF AUTHORITIES

KSDO v. The Superior Court of Riverside

County, 136 Cal. App.3d 375, 186,

Cal. Rptr. 211, 214, 216 (1982) ...

Constitution of the United. States,

Amendment I e*eeeeeeeeneteeeneeneeeeneeee

Amendment XIV e*eneeeeeeeeeneeeeneneeeeee

California Evidence Code Section 1070..

Maryland Annotated Code,

Courts and Judicial Proceedings,

Section 9-112 ccoccccceccosscee

Section 9-301 eeseeeeeeereseee

Section 9-302 eeeeeereeeeeeees

Section 9-304 eeeeeeeeeseeeee

ii

13

vil

4

4-2

6 "

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JOHN REES,

Appellant,

= Ve ©

COUNTY OF LOS ANGELES,

Appellee.

IN RE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, I

GRAND JURY INVESTIGATION

eee De

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

ly 7 .

¥ * i> t Pe

at. Ee on

Petitioner John Rees respectfully

requests that this Court issue a Writ of

Certiorari to review the denial of certior-

ari by the Court of Appeals of Maryland on

December 27, 1983, and the decision and

order of the Court of Special Appeals of

Maryland in In Re State of California for

the County of Los Angeles, Grand Jury

Investigation, Md. App. ’ A.2d

(No. 1088, September Term, 1533,

@ecided October 7, 1983).

OPINIONS BELOW

The Court of Appeals of Maryland

denied Petitioner's application for a Writ

of Certiorari by order dated December 27,

1983. A copy of said order is attached as

Exhibit "A." The Court of Special Appeals

filed a reported opinion on March 6, 1984,

which is attached as Exhibit "B." The

relevant proceedings in the trial court,

attached as Exhibit "C," contain an oral

opinion delivered by the trial judge.

=2-

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JURISDICTIONAL STATEMENT

On 27 December 1983, the Court of

Appeals of Maryland denied Petitioner's

Application for Writ of Certiorari. The

Jurisdiction of this Court is invoked

under 20 U.S.C. 1257(3).

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES

United States Constitution, Amendment I.

"Congress shall make no law *** abridg-

ing the freedom of speech or of the

press; ***,"

United States Constitution, Amendment XIV.

"nor shall any person *** be deprived

of life, liberty, or property, without

due process of law ***,

Maryland Annotated Code, Courts & Judicial

.? Proceedings, Section 9-112.

| "A person engaged in, connected

i with, or employed on a newspaper or

: journal or for any radio or television

é station may not be compelled to dis-

close, in any legal proceeding or ott

ch trial or before any committee of the ie

legislature or elsewhere, the source

of any news or information that was

obtained by the person for the pur-

poses of publication in a newspaper or

journal or for purposes of dissemina- :

tion by a radio or television station

where the verson is engaged, connected

with or employed." -

Maryland Annotated Code, Courts & Judicial

Proceedings, Section 9-301.

"(a) In General. - In this title

the following words have the meanings

indicated.

(b) State. - "State" means any

state or territory of the United

States and the District of Columbia.

(c) Summons. - "Summons" means a

subpoena, order, or other notice

requiring the appearance of a witness.

(4) Witness. - “Witness means a

person whose testimony is desired in

any proceeding or investigation by a

grand jury or in a criminal prosecu-

tion or proceeding.”

Maryland Annotated Code, Courts & Judicial

Proceedings, Section 9-302.

"(a) Certificate that witness is )

needed in another state; hearing. - If °

a judge of a court of record in any

state which by its laws has maje pro-

vision for commanding persons within *;

that state to attend and testify in a

the State certifies under seal of the 3

court that there is a criminal prose- |

cution pending in the court, or that a

grand jury investigation has commenced —

or is about to commence, that a person

being within the State is a material

witness in the prosecution, or grand

jury investigation, and that his pre-

sence will be required for a specified

number of days, upon presentation of |

the certificate to any judge of a

court of record, in the county in

which the person is, the judge shall

fix a time and place for a hearing,

and shall make an order directing the

witness to appear at a time and place

certain for the hearing.

(b) Court may order witnesses to

attend. - If at the hearing the judge

Aetermines that the witness is material

and necessary, that it will not cause

undue hardship to the witness to be

compelled to attend and testify in the

prosecution or a grand jury investiga-

tion in the other state, and that the

laws of the state in which the prose-

cution is pending, or grand jury in-

vestigation has commenced or is about

to commence, and of any other state

through which the witness may be re-

quired to pass ordinary course of tra-

vel, will give to him protection from

arrest and the service of civil and

criminal process, he shall issue a

summons, with a copy of the certifi-

cate attached, directing the witness

to attend and testify in the court

where the prosecution is pending, or

where a grand jury investigation has

commenced or is about to commence at a

time and place specified in the sum-

mons. In the hearing the certificate

shall be prima facie evidence of all

the facts stated therein."

-5-

“ae?

Se

— SY Fe a. ee

a

PR ea a ee

Maryland Annotated Code, Courts & Judicial

Proceedings, Section 9-304.

“(a) Exemption of person coming into

State to attend and testify. - If a e

person comes into this State in obe-

dience to a summons directing him to

attend and testify in this State he «

siall not while in this State pursuant

to such summons be subject to arrest

or the‘service of process, civil or

criminal, in connection with matters

which arose before his entrance into

this State under the summons.

(b) Exemption of person passing

through State while going to another

state. - If a person passes through

this State while going to another

state in obedience to a summons to

attend and testify in that state or

while returning therefrom, he shall

not whole so passing through this

State be subject to arrest or the ser-

vice of process, civil or criminal, in

connection with matters which arose.

before his entrance into this State

under the summons."

California Evidence Code, Section 1070.

"(a) A publisher, editor, reporter,

or other person connected with or

employed upon a newspaper, magazine,

or other periodical publication, or by

a press association or wire service, ‘¢

or any person who has-been so connect- ©

ed or employed, cannot be adjudged in

contempt by a judicial, legislative,

administrative body, or any other body

having the power to issue subpoenas, ae

elt

.

oo) eee a et RN ea eee 8 Ne aeons ee .

4 Ty : . : ey

, - -

tod .

oy

for refusing to disclose, in any pro-

ceeding as defined in Section 901, the

source of any information procured

while so connected or employed for

publication in a newspaper, magazine

4 or other periodical publication, or

for refusing to disclose any unpublish-

ed information obtained or prepared in

4 gathering, receiving or processing

processing of information for com-

munication to the public.”

STATEMENT OF THE CASE

“PROCEDURAL HISTORY

The Grand Jury of Los Angeles County,

California, is investigating alleged theft

and concealment of public records by offi-

cers and employees of the Los Angeles

Police Department and their disclosure to

third parties.

The State of California requested that

Se the Petitioner, John Rees, appear before

the Grand Jury bringing with him "all

records of information" furnished him by

any Los Angeles Police Department officer

-7-

or employee and "all other data base

information whether stored electronically

or otherwise." -

On 15 September 1983, following a <

hearing, the Circuit Court for Baltimore

City, Maryland, Judge Robert L. Karwacxi,

ordered John Rees to appear on 29 Septem-

ber 1983 before the Los Angeles County

Grand Jury in California, and to bring

with him records, documents and infor-

mation as demanded by the Grandi Jury. On

20 September 1983, an appeal from the

Order of the Baltimore City Circuit Court

was filed to the Court of Special Appeals.

On 27 September 1983, the Court of Special

Appeals issued an Order staying the pro-

ceedings pending appeal. After briefing

and oral agrument, the Court of Special

Appeals of Maryland affirmed the order of

the. Circuit Court for Baltimore City

, . i eee

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Pare SB: MAIR OP cg So ol SA A ee ‘ y

{Appendix B]. A Petition for a Writ of

Certiorari to the Court of Appeals of

Maryland was denied on December 27, 1983.

RELEVANT FACTS

A hearing was held on September 15,

1983, in the Circuit Court for Baltimore

City pursuant to Section 9-302 of the

Courts and Judicial Proceedings Article of

the Maryland Annotated Code at which time

the State introduced a certificate signed

by a Superior Court Judge of Los Angeles

County, California. The certificate

stated that the Los Angeles County Grand

Jury is investigating an alleged theft and

concealment of public records, and further,

that Petitioner is a material and necessary

witness. ~ The State then rested its case.

The lower court then ruled that the certi-

ficate was insufficient to prove that

Petitioner was a material and necessary

witness, and it permitted the State to re-

open its case. The State called Detective

Ben Lovatto who testified that Detective

Jay Paul of the Los Angeles Police Depart-

ment had a contractual relationship with

Western Goals Foundation under which Paul

was to provide information to Western

Goals in exchange for money. Detective

Lovatto further testified that the

Petitioner, a newsman and editor of

Western Goals, took certain computer tapes

and floppy discs containing information

provided by Paul. The testimony was

objected to by the Petitioner as being

hearsay, but was admitted by the court.

No additional evidence was introduced

and arguments of counsel were presented.

The court ruled that the evidence pre-

sented established that Petitioner is a

material and necessary witness in the

Grand Jury investigation, and that his

attendance will not cause him undue

hardship. The court further ordered that

Petitioner must also produce tangible

evidence at the time of his appearance in

California.

REASONS FOR ALLOWANCE OF THE WRIT

The Constitutionally provided rights

to free speech and a free press, supported

by due process considerations, demand that

appellant be permitted to assert the pro-

tection of the Maryland "Press Shield

Statute" [Maryland Courts and Judicial

Proceedings Code Annotated, Section 9-112

(1980 Repl. Vol.)j.

Under that Maryland statute, the

petitioner, John Rees, a Maryland resident

-ll-

and professional journalist of some twenty

years standing who carries out the writing

of his articles and books in his Maryland

residence and has compiled an extensive

"data base” on the subjects of his writing

which include criminal subcultures an4

terrorist organizations, could not be com-

pelled to disclose in any legal proceeding

the source of information obtained for the

purpose of publication or for dissemina-

tion via television and radio, video docu-

mentaries or other media formats.

Consideration of the Constitutional

protections above require the least intru-

sive means of investigation or that the

information sought is unavailable from any

other source. In this matter, evidence

introduced into the Circuit Court hearing

on September 15, 1983, indicated that a

number of other witnesses from the Los

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as di “hen Shem ee ee OU ee :

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4

Angeles Police Department, active duty and

retired, directly involved in this matter

r were available to the Grand Jury and had

already testified concerning disclosure of

information to third parties. Unlike the

Maryland “press shield," the California

"press shield law" to which he must look

for protection if the Maryland rulings are

upheld does not create any privilege. It

does not protect his research documents,

notes, files or other materials, nor does

it provide protection from any sanction

except contempt. KSDO v. The Superior

Court of Riverside County, 136 Cal. App.

3d 375, 186 Cal. Rptr. 211, 214, 216

(1982). The Los Angeles County Grand

Jury, having other directly involved wit-

nesses including at least one self-

identified source at its disposal, is not

harmed by appellant John Rees's assertion

-l3-

, : - 1) wR i" . 2 As

Mckay) Jo" a Wr Bee "Ne Ter Ne Eg a ree i OS Oe fet) Vy

of his Maryland press shield privilege.

Moreover, there is no compelling need to

require the appellant to’ disclose all

sources he may have had within the Los

Angeles Police Department during his

career or what information they may have

provided him. Nor is there a compelling

need for him to produce for the Los

Angeles Grand Jury .all of the documents

and materials Rees has amassed over the

years during the course of his journalism,

in the words of the California subpoena,

“all other data base information whether

stored electronically or otherwise."

CONCLUSION

For the foregoing reasons, appellant

John Rees respectfully requests that a

writ of certiorari issue to review the

judgment of the Court of Appeals of

Maryland.

Respectfully submitted,

10

DATED: 26th March, 1904(] . ee oe

JOHN REES

2805 St. Paul Street

Baltimore, MD 21218

301/366-2531

oo Seclvlonir, :

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

IN RE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

GRAND JURY INVESTIGATION

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

APPENDICES

APPENDIX A

Order of the Court of Appeals

of Maryland eeeeeeeeeeeeeeeeeeeeee

APPENDIX B

Opinion of the Court of Special

Appeals of Maryland ..eeeeseecsees

APPENDIX C

Relevant Proceedings of September 15,

1983, in the Circuit Court for

Baltimore City, Maryland .....s+.6.

Lie tah ka, ane

16

18

APPENDIX A

IN RE: STATE OF CALIFORNIA:

FOR THE COUNTY OF LOS :

ANGELES, GRAND JURY :

INVESTIGATION :

:

:

:

:

:

:

:

3

:

ORDER

IN THE

COURT OF

APPEALS

OF

MARYLAND

Petition

Docket No.

499

September

Term, 1983

Court of

Special

Appeals)

Upon consideration of the peti-

tion for a writ of certiorari to the Court

of Special Appeals in the above entitled

case, it is

ORDERED, by the Court of Appeals of

Maryland, that the petition be, and it is

hereby, denied as there has been no ee °

showing that review by certiorari is |

desirable and in the public interest.

{3/ ert C. Murphy

ef Judge

Date: December 27, 1983.

APPENDIX B

REPORTED

IN THE C OF SPECIAL APP

‘ OF MARYLAND

No. 1088

September Term, 1983

IN RE

STATE OF CALIFORNIA

FOR COUNTY OF LOS ANGELES

GRAND JURY INVESTIGATION

Gilbert, C.J.

Adkins

Bloom,

JJ.

Opinion by Gilbert, C.J.

Piled: March 6, 1984

“ A mt - ¥ rd

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This Court on October 7, 1983, issued

a per cuiram order affirming an order by

the Circuit Court for Baltimore City

(Karwacki, J.) that commanded John Rees to

"appear before the Grand Jury of the

County of Los Angeles, State of California

..."1 We now explain why we affirmed the

Circuit Court.

From the record we learn that the

Grand Jury of the County of Los Angeles is

inguiring into the unauthorized removal

and theft of intelligence information from

the Intelligence Division of the Los

Angeles Police Department (LAPDID) by

Detective Jay Paul (Paul).

There was testimony in the record that

Paul, who was assigned to the LAPDID, was

under a contractual relationship with

Western Goals Foundation in which he was

+ The Court of Appeals denied cer-

tiorari on December 27, 1983.

-19-

paid thirty thousand dollars a year “to

maintain a computer for Western Goals

Foundation and develop a computer program

to input information in the Western Goals

computer." Detective Ben Lovato of the

LAPD testified that, "Western Goals is a

private intelligence gathering foundation

e+e.” The computer for Western Goals was

maintained in the “office of ... Paul's

wife, in Long Beach, California."

Apparently Paul would feed information

gleaned from the LAPDID records into the

Western Goals computer.

The editor of Western Goals, John

Rees, allegedly removed from the office of

Paul's wife, “thirty discs and one tape

which contained" LAPDID “intelligence

information." Rees refused to turn over

the discs and tape to the LAPDID and left

California. Obviously, he made his way to

Maryland.

-20-

Because the Grand Jury of the County

of Los Angeles desired Rees's appearance

before it, a subpoena was issued on August

9, 1983, which commanded that Rees present °*

himself before that body on September 29,

1983. In addition to appearing personally

before the grand jury, Rees was directed

to produce:

"All records of information furnish-

ed you or Western Goals by Jay S.

Paul or any other Los Angeles Police

Department officer or employee, and/

or a representative of the office of

Ann Love. Such records are not

limited to but are to include 30

floppy discs and their printouts,

and storage tape and its printouts,

received on or about March ll, 1983,

from Jay S. Paul, and all other

floppy discs and their printouts,

and all other data base information

whether stored electronically or

otherwise."

Pursuant to the terms of the “Uniform

Act to Secure Attendance of Witnesses from

Without a State in Criminal Proceedings,"2 ~°

<The Maryland version of this act is

codified as 889-301 - 9-304 of the Courts

and Judicial Proceedings Article.

-2l1-

‘iz

Judge James M. Ideman of the Superior

Court for Los Angeles County certified

that Rees‘'s presence, together with the

discs, tape and printouts, was “necessary,

material and relevant to the issues"

before the Los Angeles County Grand Jury.

Judge Ideman further certified that Rees

would be protected “from arrest or service

of process, either civil or criminal ...."

The judge's certificate, along with

the subpoena of the grand jury, was

transmitted to Maryland. Rees resisted

returning to Los Angeles. The State of

California, acting through the state's

attorney for Baltimore City, moved pur-

suant to Md. Cts. & Jud. Proc. Code Ann.

§ 9-303 to have the Circuit Court for

Baltimore City order Rees's appearance

before the Los Angeles County Grand Jury.

Following a hearing in the circuit court,

Judge Karwacki issued that order, and Rees

-22-

a

promptly appealed.

Because of the time restraints, we

advanced oral argument.

In this Court Rees asserted four ;

reasons why he believed that the order of

the circuit court should be reversed. We

shall discuss each of the arguments in the

order in which Rees posited them to us,

adding such additional facts as may be

necessary.

I.

"Under Section 9-302, hearsay evi-

dence is not admissible to prove

that appellant is a material and

necessary witness."

As we have previously commented, Judge

Ideman, a California jurist, certified

that Rees and the tangible evidence alle-

gedly possessed by Rees were “material, "

and relevant to the issues considered by

the Los Angeles Grand Jury."

Some States have held that such a cer-

-23-

y ge

By ite :

AT ed ,

tification when supported by an affidavit

is itself sufficient to require that the

witness be delivered to the requesting

State. See e.g. Epstein v. People of

State of New York, 157 So.2d 705 (Fla.App.

1963); In re Cooper, 127 N.J.L. 312, 22

A.2d 532 (1941); Superior Court, State of

New Jersey v. Farber, 94 Misc. 2d 886, 405

N.¥.S.2d 989 (1978). See also Ex parte

Armes, 582 S.W.2d 434 (Tex. Crim. App.

1979).

Maryland, in Appel v. New York, 243

Md. 218, 220 A.2d 301 (1966), did not de-

cide whether the issuance of the certifi-

cate of relevance and materiality was all

that was needed, inasmuch as the Maryland

hearing judge in Appel found from evidence

that the witness was “material and

1d necessary” to the New York probe.

In the instant case the certificate of

Judge Ideman was bolstered by an affidavit

-24-

from the deputy district attorney for Los

Angeles County that Rees's appearance to-

gether with the discs, tape and printouts

was necessary, relevant and material to

the grand jury's inquiry into the Western

Goals's suspected covert connection to the

LAPDID. The testimony of Detective Lovato

before Judge Karwacki was largely hearsay,

but we think no more than that is required

in the instant case.

Courts Art. 8 9-302 provides:

"(a) If a judge of a court of

record in any state which by its

laws has made provision for command-

ing persons within that state to

attend and testify in the State?

certifies under seal of the court

that there is a criminal prosecution

pending in the court, or that a

grand jury investigation has com-

menced or is about to commence, that

a person being within the State is a

material witness in the prosecution,

or grand jury retype, igo and

that his presence will be required

for a specified number of days, upon

presentation of the certificate to

any judge of a court of record, in

the county in which the person is,

the judge shall fix a time and place

-25-

for a hearing, 4nd shall make an

order directing the witness to

appear at a time and place certain

for the hearing.

(b) If at the hearing, the

judge determines that the witness is

material and necessary, and that it

will not cause undue hardship to the

witness to be compelled to attend

and testify in the prosecution or a

grand jury investigation in the

other state, and that the laws of

the state in which the prosecution

is pending, or grand jury investiga-

tion has commenced or is about to

commence, and of any other state

through which the witnesses may be

required to pass by ordinary course

of travel, will give to him protec-

tion from arrest and the service of

civil and criminal process he shall

issue a summons, with a copy of the

certificate attached, directing the

witness to attend and testify in the

court where the prosecution is pend-

ing, or where a grand jury investi-

gation has commenced or is about to

commence at a time and place spe-

cified in the summons.

-\ t

The Maryland Uniform Act to Secure

Attendance of Witnesses from Without a

State in ‘ Criminal Proceeding is related

by rationale and principles of comity to

-26-

to the Uniform Criminal Extradition Act,

Md. Ann. Code art. 41, 88 16-43.4

4 Section 18 of the Extradition sta-

tute provides:

"No demand for the extradition

of a person charged with crime in

another state shall be recognized by

the Governor unless in writing

alleging, except in cases arising

under § 21, that the accused was

present in the demanding state at

the time of the commission of the

alleged crime, and that thereafter

he fled from the state, and accom-

panied by a copy of an indictment

found or by information ecppesiee by

affidavit in the state having juris-

diction of the crime, or by a copy

of an affidavit made before a

justice of the peace or magistrate

there, together with a copy of any

warrant which was issued thereupon;

or by a copy of a judgment of con-

viction or of a sentence imposed in

execution thereof, together with a

statement by the executive authority

of the demanding state that the per-

son claimed has escaped from confine-

ment or has broken the terms of his

bail, probation or parole. The in-

dictment, information, or affidavit

made before the magistrate or jus-

tice of the peace must substantially

charge the person demanded with

having committed a crime under the

law of that state; and the y of

indictment, information, affidavit,

@27=

The principal difference is that in the

latter the person demanded by the

requesting State will be returned to that

State to fce criminal prosecution, while

in the former the person requested is to

testify and is specifically exempted from

prosecution for matters that “arose before

«+s entrance into [the] State under the

summons." Courts Art. 8 9-304; California

Penal Code § 1334.4.

It has been held in Maryland that the

strict rules of evidence are not applic-

able to extradition proceedings. Shield

v. State, 257 Md. 384, 263 A.2d 565 (1970);

Johnson v. Warden, 234 Md. 465, 200 A.2d

49 (1964). 1 Wigmore Evidence § 4

(Tillers rev. 1983) declares, “No jury

being involved, extradition proceedings

Tcont.

judgment of conviction or sentence

must be authenticated by the executive

authority making the demand."

are not governed in strictness by jury

trial rules of evidence ... Moveover, here

the additional reason obtains that the

evidence is brought from outside the juris-~-

diction, and the procurement of evidence

is thus likely to be hampered by lack of

power or practicability, as well as by the

poscible differences of law in another

system." (Footnote omitted.)

This Court, speaking through Judge

Morton in Campbell v. State, 10 Md. App.

406, 413, 271 A.2d 190 (1970), commented,

"If we assume that ... [the] affidavit [of

the Commonwealth of Virginia's attorney]

was based entirely upon hearsay evidence

»+. we find no violation of [Campbell's]

rights." Implicit in that remark is the

conclusion that hearsay evidence is admis-

sible in extradition proceedings. What

was implicit in Campbell is explicit in

-29-

In_ re David, 395 F. Supp. 803 (E.D. Ill.

1975) (hearsay admissible at extradition

hearing even though it would not be

admissible at trial); Graham v. Vanderhoof,

185 Colo. 334, 524 P.2d 611 (1974) (hear-

say admissible); People v. Miller, 74

Misc. 2d 806, 342 N.Y¥.S.2d 288 (1973)

(issuance of warrant of extradition may be

grounded upon hearsay); President of the

United States v. Kelly, 19 F.Supp. 730

(S.D.N.¥. 1937) (properly authenticated

depositions or affidavits admissible in

evidence in extradition proceeding irre-

spective of hearsay content); Klein v.

Mulligan, 50 F.2d 687 (2nd Cir. 1931)

(that evidence is hearsay is only a

"factor to be considered in determining

the weight to be accorded it."); In re

LoDolce, 106 F.Supp. 455 (W.D.N.Y¥. 1952)

(statute controlling evidence in extradi-

tion proceedings permits hearsay evidence).

-30-

We are convinced that admission of

hearsay in a case involving the attendance

of a witness at a criminal trial or before

a grand jury in another State is permissi-

ble. Such evidence is no more or no less

than another factor to be considered in

determining whether to grant the request-

ing State's motion to compel the atten-

dance of the witness.

We hold that Judge Karwacki did not

err in receiving that hearsay testimony.

Il.

"The evidence was insufficient to

establish that appellant was a

required oy Section $2302.¢

Rees's second issue relies heavily on

his argument that the hearsay evidence was

inadmissible. He obviously reasons that

if that evidence is stricken from the re-

' cord, the remainder, that is the certifi-

cate and accompanying affidavit, is insuf-

=31@

ficient to require his attendance before

the Los Angeles Grand Jury. The fallacy

in Rees's logic is that the hearsay evi-

- dence from Detective Lovato was admissible.

Consequently, Rees's contention collapses

inasmuch as its foundation has been under-

mined.

IIl.

"The appellant's inability to assert

the Maryland Press Shield Privilege,

pursuant to Section 9-112, before

the Los Angeles County Grand Jury,

is an undue hardship within the mean

ing of Section 9-302."

Rees seeks to take refuge behind the

"Maryland Press Shield Law,” Courts Art.

§ 9-112, which provides:

"A person engaged in, connected

_with or employed on a newspaper or

journal or for any radio or televi-

sion station may not be compelled to

, disclose, in any legal proceeding or

trial or before any committee of the

legislature or elsewhere, the. source

. of any news or information that was

obtained by the person for the pur-

ses of publication in a newspaper or

sourael or for purposes of dissemina-

-32-

tion by a radio or television station

where the person is engaged, connected

with or employed."

Rees avers that since he is a Maryland

resident he is entitled to the protection

of the Maryland act and, therefore, he

should not be compelled to disclose the

source of the information obtained by him.

Aside from the significant fact that

the “source” of Rees's information seems

to be already known to the Los Angeles

Grand Jury, Rees, in his appearance before

that august body will have to look to

California law for protection,> because

5 See California Evidence Code, 8 1970

(a), which provides:

"A publisher, editor, reporter,

or other person connected with or

employed upon a newspaper, magazine,

or other periodical publication, or by

a press association or wire service,

or any person who has been so connect-

ed or employed, cannot be adjudged in

contempt by a judicial, legislative,

administrative body, or any other body

whatever occurred between Rees and Detec-

tive Jay Paul took place in California,

not Maryland.

The Maryland Press Shield Law was de-

signed to protect newsmen and neewomen in

this State; it has no extra-territorial

application. The legislature did not

enact the Press Shield Law so as to create

a sanctuary to which out-of-state newsper-

sons could flee and thereby avoid disclo-

Sure of news sources. Rees's attempted

utilization of the Maryland Press Shield

Law is disingenuous. We reject it.

3 continued

having the power to issue subpoenas,

for refusing to disclose, in any pro-

ceeding as defined in Section 901, the

source of any information procured

while so connected or employed for

publication in a newspaper, magazine

or other periodical publication, or

for refusing to disclose any unpublish-

ed information obtained or prepared in

gathering, receiving or processing

processing of information for com-

munication to the public."

-34-

IV.

"Courts Art. 89-301 et. seq. does

not authorize a Maryland court to

issue a summons directing the

appellant to produce computer tapes

and floppy discs."

Rees's argument relative to the inabi-

lity of the Los Angeles County Grand Jury

to issue a subpoena duces tecum for an

Out-of-state witness is likewise devoid of

merit.

Courts Art. § 9-301 provides:

"(a) In this title the following

words have the meanings indicated.

(b) "'State’ means any state or

territory of the United States and

the District of Columbia.

(c) ‘Summons’ means a subpoena,

order, or other notice requiring the

appearance of a witness.

(ad) ‘Witness’ means a person

whose testimony is desired in any

proceeding or investigation by a

grand jury or in a criminal prosecu-

tion or proceeding.”

Conspicuously absent from the provi-

sion of § 9-301 is the term subpoena duces

@

tecum. Inasmuch as the statute does not

use that term, Rees concludes that the

certifying State is without power to issue

such a subpoena. In short, Rees asserts

that because the subpoena duces tecum is

not specifically authorized under the act,

its issuance is unauthorized. He employs

a slight variance on the old saw, “out of

sight is out of mind."6

Although Maryland has not heretofore

considered the issue,’ posed to us by Rees,

several of our sister States have had the

6 Arthur Hugh Clough (1819-1861) in

"Songs of Absence” (1862).

7 In re Special Investigation, No. 219,

52 Md. App. 17, 445 A.2d 1081 (1982), in-

volved a subpoena duces tecum issued in

Maryland to a citizen of Virginia. The

question of the authority of the Grand

Jury for Baltimore City to — a

subpoena duces tecum was not decided,

wires i its validity appears to have been

assumed.

-36-

occasion to pass upon a similar argument.

New Jersey, in In re Saperstein, 30

N.J.Super 373, 104 A.2d 842 (1954), cert.

denied, 348 U.S. 874, said that "the term

‘subpoena’ ... embracef[{d] ‘subpoena duces

tecum.'" See also Davis v. Lehigh Valley

Railroad Co., 97 N.J.L. 412 (Sup. Ct.

1922). In Application of a Grand Jury of

the State of New York, 397 N.E.2d 686 |

(Mass. App. 1979), the same argument as

that made by Rees was before the court.

There a bank upon which was served a sub-

poena duces tecum from a New York Grand

Jury sought to avoid compliance by assert-

ing that the word “summons” as defined in

the Uniform Act did not include a “subpoena

duces tecum." The Massachusetts court

opined:

"The Uniform Act makes no men-

tion of subpoenas duces tecum or of

the power of a court under the Act

to order the production of documents.

That silence does not necessarily

imply a rejection of the power. The

powers to compel the testimony of a

witness and to compel the production

of documents are so similar in

nature and so fundamental to the

gathering of evidence in judicial

proceedings that one is hard put to

imagine a reason for permitting the

former and rejecting the latter; and

one suspects that a conscious inten-

tion to differentiate between testi-

monial and documentary evidence

would have found some concrete ex-

pression in the words of the Act,

rather than mere silence. It is not

inconceivable that the question of

how the Act would relate to the pro-

duction of documents simply never

occurred to the Commissioners on

Uniform State Laws. The record of

their deliberations can be read as

confirming such a suspicion, for we

find therein no reference to the

production of documents, even in

passing, much less a discrete sub-

ject of discussion. See Handbooks

of the National Conference of

Commissioners on Uniform State Laws

for the years 1915 (at 64-65, 88),

1922 (at 118, 358-361), 1923 (at

78-180), 1924 (at 678-679), 1927 (at

915-918), 1928 (at 430-433), 1929

(at 119-123), 356, 359), 1930 (at

110-113), 575-577), 1931 (at 41-69,

120-122, 417-423), 1932 (at 41), and

1936 (at 96, 100-102, 155-158,

333-338) ."

=38<

The court, after noting that the gen-

eral power to subpoena witnesses includes

the authority to compel the production of

documents, citing, inter alia, Catty v.

Brockelbank, 124 N.J.L. 360, 12 A.2a 128

(1940), Marston's Inc. v. Strand, 114 Ariz.

260, 560 P.2d 778 (1977), State ex rel.

Pollard v. Marion Crim. Ct., 263 Ind. 236,

329 N.E.2d 573 (1975), concluded that the

Uniform Act should be so interpreted as

"to authorize the issuance of subpoenas

duces tecum."

Similarly, the Supreme Court of New

York in deciding In re Bick, 372 N.Y.S.24

447, 82 Misc. 2d 1043 (1975), said that a

New Jersey Grand Jury's subpoena duces

tecum for books, paper, and business

records that were located in New York

would be honored. The court held that

"the term ‘subpoena’ subsumes a subpoena

-39-

duces tecum requiring the production of

books and records."

Illinois, on the other hand, in In re

Grothe, 59 I1l.App.2d 1, 208 N.E.2d 581

(1965), held that the Uniform Act does not

authorize the issuance of a subpoena duces

tecum. That Illinois case, however, has

since been overruled by statute. See 1965

Tll. Laws at 2694 8 1, effective August 6,

1965. Grothe, we note, was not followed

by the Court of Appeals in Appel v. New

York, 243 Md. 218, 220 A.2d 301, and was

expressly rejected in Application of a

Grand Jury of the State of New York, supra.

Patently, the ability to compel Rees, who

apparently has possession of certain rele-

vant, material evidence, to appear before

the grand jury, but the inability to com-

pel the production of that evidence, bor-

ders on the absurd. Unless Rees was able

-40-

to testify as to the content of discs, a

tape, and printouts, his appearance before

the grand jury would be a decided waste.

We believe the weight of authority to

be clear. The power to issue a subpoena

includes the power to issue a subpoena

duces tecum, and we so hold.

-41-

x

APPENDIX C

RELEVANT PROCEEDINGS OF SEPTEMBER 15,

1983, IN THE CIRCUIT COURT FOR

BALTIMORE CITY, MARYLAND

(The Court): Very well. All right.

Having conducted the hearing, I am con-

vinced that the Certificate plus the

testimony given here has established that

Mr. Rees is a material and necessary wit-

ness in this Grand Jury proceeding. And

further, that it will not cause him undue

hardship, as I construe that term, to

attend the hearing on September 29, 1983.

On the last issue of whether he should

be ordered to produce certain tangible

evidence at the time he appears, pursuant

to the summons, which is issued, and that

is the issue which is addressed in Grothe,

the Illinois case, which reference was

made, citation to which is 59 Illinois

-42-

Appeal, Second, Page l, 1954 decision, or

whether to view in Grothe or whether to

view in Sapperstein, which is 104 Atlantic

Second, 842. And I don't have a date on

that case. But that is the case In Re:

Sapperstein. These two Courts disagree.

And when it comes down to what proper rule

of statutory construction should be

applied to Section 9-302, Grothe notes,

and I think properly, that certainly this

Statute is in derogation of the common

law. There is no analogous type procedure

ever authorized in common law. But

Sapperstein equally relies on a well

settled rule of construction of statute.

And that is that statutes in aid of comity

between sister states which assists in due

administration of justice should be

liberally construed. So we have a colli-

sion of two rules of construction in a

:

«* ¢

¥ «eae our

Pie | 6 ee Ps Ee

sense here. I think the latter bends in

the more proper direction. I think com-

monly in this State of the circumstances

surrounding this case outweigh the

deviations this statute gives in procedure

from common law procedure. And I think it

should be given a liberal construction.

And I am going to enter the Order duces

tecum and not just ad testificandum. So I

will issue the Order that is prayed.

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES ye

OCTOBER TERM, 1983 .

JOHN REES,

Appellant,

-¥.=

COUNTY OF LOS ANGELES,

Appellee.

IN RE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

GRAND JURY INVESTIGATION

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

MR. CLERK: e

Please enter my appearance as pro

se counsel in the above-entitled case.

Lh ee

JOHM REES

2806;/St. Paul Street

Baltimore, MD 21218

301/366-2531

Petitioner Pro Se

-46-

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JOHN REES,

Appellant,

- Vv. =

COUNTY OF LOS ANGELES,

Appellee.

IN RE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

GRAND JURY INVESTIGATION

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

I HEREBY CERTIFY, that on this 26th day

of March, 1984, copies of the foregoing

Petition for Writ of Certiorari were de-

”

livered to Deborah K. Handel, Esquire,

Assistant Attorney General of Maryland, 7

North Calvert Street, 4th Floor, Baltimore,

Maryland 21202, Attorney for the Respondent,

the State of Maryland.

John Re

2805 sY) Paul Street

2803 Sy) e, MD 21218

301/366-2531

Petitioner Pro Se

-48-