Amicus Curiae Brief — Butterworth v. Smith
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Supreme Court, U.S.
FOR ARGUMENTD on FJ] LED
)
| 18 1989
No. 88-1993 - bec
JOSEPH F. SPANIOL, JR.
¢ K
IN THE
Supreme Court of the United States
October Term, 1989
ROBERT A. BUTTERWORTH, JR.
Attorney General of the State of Florida, and
T. EDWARD AUSTIN, JR.
as State Attorney to the Charlotte County, Florida
Special Grand Jury,
Petitioners,
Vv
MICHAEL SMITH,
Respondent.
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF OF AMICI CURIAE REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS,
AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION, AMERICAN SOCIETY OF NEWSPAPER
EDITORS, NATIONAL ASSOCIATION OF
BROADCASTERS, NATIONAL NEWSPAPER
ASSOCIATION, NATIONAL PRESS CLUB,
NEWSLETTER ASSOCIATION, RADIO-TELEVISION
NEWS DIRECTORS ASSOCIATION, AND SOCIETY OF
PROFESSIONAL JOURNALISTS IN SUPPORT OF
RESPONDENT MICHAEL SMITH
Jane E. Kirtley
(Counsel of Record)
Robert S. Becker
The Reporters Committee
For Freedom of the Press
Suite 504
1735 Eye Street, N.W.
Washington, D.C. 20006
(202) 466-6313
December 18, 1989 (Attorneys for Amici Curae)
(List of counsel continued on inside cover)
CASILLAS PRESS INC. 1717 K STREET NW WASHINGTON DC 20036 — 223-1220
\" ,
¢ ,
Wwe
W. Terry Maguire
Claudia James
American Newspaper Publishers
' be
P.O. Bow 17407
Dulles Airport
Washington, D.C. 20041
Richard M. Schmidt, Jr.
Cohn & Marks
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attorney for American Society of
Newspaper Editors
Henry L. Baumann
Steven A. Bookshester
National Association of
Broadcasters
1771 N Street, N.W.
Washington, D.C. 20036
Robert J. Brinkmann
National Newspaper Association
1627 K Street, N.W.
Washington, D.C. 20006-1790
Robert Litt
Williams & Connolly
910 17th Street, N.W.
Washington, D.C. 20006
Attorney for National Press Club
James Grossberg
Ross, Dixon & Masback
Suite 1300 East
555 13th Street, N.W.
Washington, D.C. 20004
Attorney for Newsletter Association
J. Laurent Scharff
Reed, Smith, Shaw & McClay
1200 18th Street, N.W.
Washington, D.C. 20036
Attorney for Radto-Televiston
News Directors Association
Bruce Sanford
Douglas E. Lee
Baker & Hostetler
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Attorney for Society of
Professional Journalist
TABLE OF CONTENTS
i) et eesesccesococéocccecs fi
STATEMENT OF INTEREST.....ccccccccccccccee 1
Peewee GOW BROT Bs cccccccccccccccccececse 7
SUMMARY OF THE ARGUMENT.....ccccccccsccee 12
PUNE s CESS Seccececcecccccoccccccccccce LS
I. FLA. STAT. § 905.27 IS AN UNCON-
STITUTIONAL RESTRAINT ON NEWS
EE 15
A. The State's Asserted Interest
Is Not Sufficiently Compelling
To Justify An Absolute Prohi-
bition On Witnesses' Disclosure
Of Their Grand Jury Testimony... 20
l. None of the State's As-
serted Interests Justify
LN es > |
Be There Is No Justification
For A Blanket, Statutory
Ban On Witness Disclosure... 26
B. Florida's Blanket Prohibition Is
Not Narrowly Tailored To Protect
The State's Asserted Interest... 39
II. FLA. STAT. § 905.27 MAKES IT IM-
POSSIBLE FOR THE NEWS MEDIA TO
FULFILL THEIR JUDICIALLY RECOG-
NIZED FUNCTION OF INFORMING THE
PUBLIC ABOUT POLITICAL CORRUPTION
AND THE CONDUCT OF GOVERNMENT
Pew RUEMMe Coscccccccccccccccecccccces 47
EEE LE SEE 59
APPENDIX
Cases
TABLE OF CITATIONS
U.S. 58 (1963)
(1972)
(1941)
, 372
, 408 U.S. 665
U.S. 297 (1976)
U.S.
469 (1975)
, 314 U.S.
’
252
427
, 420
Craig v. Harney, 331 U.S. 367 (1947)
Douglas Oi] Co, of California v.
Petrol Stops Northwest, 441
i ® 211 (1979) eeeeeeeeeeeeeee#e
First Amendment Coalition v.
Judicial Inguiry Board, 784
F.2d 467 (3rd Cir. 1986) .......
Zi , 109
if ese &. Ore
Court, 457 U.S. 596 (1982)
F.2d 61 (lst Cir.
’
1987) .
814
- Tecum, 797 F.2d 676 (8th Cir.
1986)
eeeeeeeveeeeveeeeeeveeeeeeeeee
- ii
Page
16
57
16, 17
18
36
17, 27
49
17
21, 25
47
passim
43
30
30
2 a NEG pe Ae te -
TABLE OF CITATIONS
a -
Cases Page
Tecum, 575 F. Supp. 93 (S.D.N.Y.
1983) hipaa i 9 olen lae reed 31
176 N.J. Super. 455, 423 A.2a
695 (1980) ereereeeeeeeeeeeeeeeee 55
12. 1970, 321 F. Supp. 238 (N.D.
Ohio 1970) ee 47
370 F. Supp. 1282 (S.D. Fla.
1974) eeeceeeeceeeeeeeeeeeeeeeneesee 30
| In_re Russo, 53 F.R.D. 564 (C.D.
{ Cal. 1971) e@eeeeeedtceeeeeeeeeeese 26
, 864 F.2d 1559 (llth
aw TF 1989) eeeee eee eeeeeeeeeeece 30, 31
(Sup. Ct. Suffolk Co. Mass.
1976) eeoeceeeeeeeeoeeeeeeeceeeeeoee 56
412 Pa. 32, 193 A.2d
_ ieee iene ings 56
' (Va. Cir. Ct.
Div. 1, July 18, 1982) ......... 56
Virginia, 435 U.S. 829 (1978) .. passim
, 283 U.S. 697
eeeeeeeeceeeeeeeeeeeeeeses 41
(1931)
- 344 «=
TABLE OF CITATIONS
Cases
- , 427
U.S. 539 (1976) eeeeeveeeeveeeeeee
New York Times v. United States, 403
U.S. 713 (1971) eeeeoeeeeeeeeeeeee
, 328 U.S. 331
(1946) e*eeeseeeeeeeeeneeeeneeneeneeeee
, 249 U.S.
47 (1919) eeeeeneenenetneeeeeeeneeneeee
Seattle Times v. Rhinehart, 467 U.S.
20 (1984) e*eeeeeseeeeeeneeeeeeeeee#e
, 384 U.S. 333
(1966) eeeeeeeneeeeeeeeeeeneeeeeee
, 443
U.S. 97 (1979) e*eeseeseeeeeeneeeeeeeee
, 215 F.2d 617
(3rd Case 1954) eeeeveveeeeeeee eee
, 274 U.S. 357
(1927) eeeeoeeeeeeneeeeseeseeeneeeeeeee
, 348
U.S. 483 (1955) e*eeeeseeeeeeeeeeneeee
Wood v. Georgia, 370 U.S. 375 (1962)
, 739 F.2d 1219 (7th
a
Cir. 1984)
opinion, 469 U.S. 1200 (1985) ..
- iv-
Page
passim
17,
38,
16
16
16
44
49
28
29
21
37
36
17
43
22
TABLE OF CITATIONS
Statutes
Fla. Stat. § 905.27 eereereeeeeeeees
Newspaper Articles
Brine and Wermiel, "3 former Some r-
ville mayors indicted," The
, Aug. 11, 1971,
Pp. Le col. 1 i ee ee oe
Smith, "Suit filed to force Wanicka
to release evidence on so-called
Jackman 'suicide'," -
June 28, 1985, p. 1, col. 1
’
Smith, "Captain disputes Jackman
"suicide'," = , July 3,
1985, P- l, col. Be eeeeeeeeeeee
Smith, "Jackman jury misled by
Eagan?" = , July 18,
1985, Pp. l, col. Be eeeeeeeeeeee
Smith, "Few witnesses called in
probe," = , July 19,
1985, Pp. ie col. 4. eeeeeeeeeeees
Other Materials
V. Blasi, "The Checking Value in
First Amendment Theory," 1977
A.B. Foundation Res.J. 521 .....
S. Beale & W. Bryson, Grand Jury Law
& Practice, S 10:18 (1986) eeeee
Nimmer on Freedom of Speech (1989) ,
"Pulitzer Prizes in Journalism,
1917-1985," Library of Congress
Microfilm 86/225 (H)
= 7 =
Page
passim
54
51
TABLE OF CITATIONS
Other Materials
Federal Rules of Criminal Procedure,
Preliminary Draft, Advisory
Committee Notes (1943) ....ceecee
Minutes of Meeting Feb. 20, 1943 ...
Hearing Before the Advisory Commit-
tee on Rules of Crimirai
Procedure, United States Supreme
Court, Feb. 21, 1941 .cccccccces
Advisory Committee on Rules of
Criminal Procedure, United
States Supreme Court, May 18,
1942 eeeeeoeceeeeoceeeeeeeespeeeeeeneene
Grand Jury Investigation
Indianapolis, Sup. Ct. Marion
Cty., Crim. Div. 1, Dec. 7,
1973; Sup. Ct. Marion Cty.,
Crim. Div. 2, March 25, 1974, —
Sept. 2, 1974, and Oct. 4, 1974
- yvi-
Page
33,
34
35
35
35
55
em OOS
No. 88-1993
In The
Supreme Court of the United States
October Term 1989
Robert A. Butterworth, Jr.,
Attorney General of the State of Florida,
and
T. Edward Austin, Jr.,
as State Attorney to the Charlotte
County, Florida Grand Jury,
Petitioners,
Vv.
Michael Smith,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
Brief of j Reporters Committee
for Freedom of the Press, American
Newspaper Publishers Association,
American Society of Newspaper Editors,
National Association of Broadcasters,
National Newspaper Association, National
Press Club, Newsletter Association,
Radio-Television News Directors
Association, and Society of Professional
Journalists in Support of Respondent
Michael Smith
Amici curiae are nine organizations rep-
-2-
resenting a broad spectrum of print and
broadcast journalists nationally who gather
and disseminate news about criminal judicial
proceedings and the operations of
government.
They believe that adoption of the posi-
tion advocated by the Petitioner -- that a
broad, mandatory, perpetual gag on grand
jury witnesses in all cases is permissible
under the First Amendment -- would have a
detrimental impact on news coverage well
beyond the boundaries of Florida. If wit-
nesses, including journalists, can be forev-
er prevented from discussing publicly what
they know about a case merely because they
were questioned by grand juries “some con-
tinuing public grievances could never be
discussed at all. .. ." Wood v. Georgia,
370 U.S. 375, 393 (1962).
Amici have written permission from both
parties to file this brief. Copies of their
letters have been filed with the clerk in
accordance with U.S. Supreme Court Rule 29.
Amici are:
The Reporters Committee for Freedom of
the Press is an unincorporated association
of working reporters and news editors dedi-
cated to protecting the First Amendment and
freedom of information interests of the news
media. It has provided research, guidance
Or representation in virtually every major
press freedoms case since its founding in
1970.
The American Newspaper Publishers As-
sociation is a nonprofit corporation whose
membership consists of about 1,400 newspa-
pers constituting about 90 percent of the
total daily and Sunday newspaper circula-
tion, and a substantial portion of the week-
ly newspaper circulation, in the United
States.
The American Society of Newspaper
Editors is a nationwide, professional orga-
nization of more than 1,090 people who hold
positions as directing editors of daily
newspapers throughout the United States.
The National Association of Broadcast-
ers, organized in 1922, is a nonprofit in-
corporated trade association that serves and
represents America's radio and television
stations and all the major networks. NAB
seeks to preserve and enhance its members’
ability to freely disseminate information
concerning the activities of government and
other matters of public concern.
The National Newspaper Association, with
5,000 members, is the oldest and largest na-
tional trade association in the newspaper
industry, representing the interests of
weekly and daily newspapers throughout the
country.
The National Press Club is a dues~-paying
organization of more than 4,300 print and
broadcast correspondents, reporters,
editors, photographers, publishers, edito-
rial writers and editorial news cartoonists
'
'
:
’
;
'
and artists, among others. The Club takes
an active interest in the exercising of
press rights nationally and, through its
Freedom of the Press Committee, has spon-
sored hundreds of presentations on press re-
sponsibilities and freedoms.
The Newsletter Association is an inter-
national trade association of 850 publishers
of more than 2,000 newsletters and other
specialized services.
The Radio-Television News Directors As-
sociation, with a membership of more than
3,000 persons, is the principal professional
Organization of journalists -- executives,
editors, reporters and others -- who gather
and disseminate news and other information
on radio and television in the United
States.
The Society of Professional Journalists
is a voluntary, nonprofit organization of
nearly 20,000 members. The Society is the
largest and oldest organization of journal-
ists in the United States, representing
every branch and rank of print and broadcast
journalism.
= ee
STATEMENT OF PACTS
Amici adopt the statement of the case
and facts as set forth by the State of
Florida with the following additions.
In 1985, the Charlotte, Fla.,
Herald-News published several stories by
Michael Smith alleging corruption in the of-
fice of State Attorney Joseph D'Alessandro.
Smith reported that D'Alessandro had with-
held information from grand jurors during
investigations and had failed to press
charges against drug smugglers who later
were indicted by federal grand juries. See
Appendix at pg. A-4.
On June 26, 1985, the Herald-News pub-
lished a story by Smith alleging that Lee
County officials covered up a 1974 homicide
near the boundary of Lee and Charlotte
counties. The front-page story stated that
evidence had been uncovered by Smith and two
private individuals indicating that of-
ficials had deliberately made the killing of
18-year-old Brad Jackman look like a
suicide. Lee County Sheriff Frank Wanicka,
who was hunting with Jackman when he was
shot, and some of his deputies "may have
participated in the cover-up,” the newspaper
concluded, based upon Smith's months-long
investigation. See Appendix at pg. A-l.
Shortly after Jackman's death, the Lee
County Sheriff's Department, the Florida De-
partment of Criminal Law Enforcement, the
Lee County medical examiner, the Dade County
medical examiner, and a Lee County grand
jury investigating the death all concluded
that Jackman had committed suicide. See Ap-
pendix at pg. A-l.
After the initial story, the Herald-News
published several other articles by Smith
alleging a cover-up of Jackman's death by
Wanicka, D'Alessandro and State Attorney
Robert Eagan, the prosecutor in charge of
- 9 -
the 1976 grand jury inquiry into the death,
and other officials.1
Subsequently, a new grand jury convened
to re-examine evidence related to the
homicide. It asked Smith to testify in
December 1985. Shortly thereafter,
D'Alessandro, who was rumored to be a target
of the grand jury investigation, disquali-
fied himself from the inquiry and asked the
governor to appoint an outside state at-
torney to handle the case. D'Alessandro
stated that he was withdrawing 'from any
grand jury probe resulting from Smith's
testimony. See Appendix at pg. A-3.
1 See e.g. Smith, “Suit filed to force
Wanicka to release evidence on so-called
Jackman ‘'suicide'," Herald-News, June 28,
1985, p. 1, col. 1; Smith, "Captain disputes
Jackman ‘suicide'," Herald-News, July 3,
1985, p. 1, col. ly Smith, “Jackman jury
misled by Eagan?" Herald-News, July 18,
1985, p. 1, col. 1; Smith, "Few witnesses
called in probe," Herald-News, Jul
1985, p. 1, col. 4. ere
=-"10 -
T. Edward Austin, a state attorney in
Jacksonville, was appointed to succeed
D'Alessandro. Austin asked Smith to testify
before the grand jury a second time in
January 1986. Afterward, Austin publicly
stated that D'Alessandro's office was a tar-
get of the grand jury inquiry. See Appendix
at pg. A-5.
Austin subpoenaed Smith to appear before
the grand jury again in March 1986.* At
that time, the state attorney's staff warned
Smith that, once he testified, he was pro-
hibited from publishing any information
about the grand jury investigation.
The special grand jury terminated its
investigation in April 1986 without issuing
any indictments.
* Because Smith testified voluntarily on two
eccasions and complied with the subpoena
summoning him before the grand jury for a
third time, Amici will not address the issue
of whether the grand jury had authority
under state case law to compel him to
testify.
= - eer ere
- ll -
Myers News-Press and St, Petersburg
News-Press reported the contents of Smith's
Stories and the fact that Smith testified
before the grand jury about the subject of
his stories.
- 12 -
SUMMARY OF THE ARGUMENT
Fla. Stat. § 905.27 is unconstitutional,
whether it is viewed as a prior restraint on
speech by grand jury witnesses or a
post-publication punishment of those who
disclose what they told the grand jury.
Such restraints or sanctions are permissible
only when expression poses a clear and
present danger to some compelling state in-
terest and if they are capable of protecting
that interest without undue infringement on
First Amendment rights.
Before prohibiting speech or punishing a
speaker after the fact, the government must
demonstrate that a compelling interest is at
stake in the case at bar. With regard to
Respondent Michael Smith, the state has
never demonstrated how disclosure of his
grand jury testimony will jeopardize the ef-
fectiveness of the grand jury which has long
since adjourned. In fact, this case clearly
illustrates how adoption of the state's po-
- 13-
sition would make it possible for prosecu-
tors, by subpoenaing reporters, to deprive
the public of important information about
government corruption.
Furthermore, Florida's claims that dis-
closure by grand jury witnesses generally
will harm the grand jury process are so re-
mote and speculative that they cannot serve
as the basis for a statutory prohibition
against disclosure by all grand jury
witnesses.
Even in cases where a compelling inter-
est can be demonstrated, the state must also
prove that a restraint on expression is nar-
rowly tailored to prevent the perceived
harm. However, through its contempt provi-
Sion, the Florida statute creates a presump-
tion that anything a grand jury witness says
publicly about the matter under investiga-
tion after testifying is material that was
presented to the panel. This effectively
reverses the presumption, enunciated repeat-
-14-
edly by this Court, that speech about public
affairs is protected under the First Amend-
ment unless the government proves that there
is a compelling need to keep the specific
type of information secret. Furthermore, by
prohibiting disclosure by witnesses in all
cases, the statute permits no case-by-case
examination to determine whether a restraint
will be effective and whether it is narrowly
tailored.
Pinally, the broad restriction on ex-
pression imposed by this statute is detri-
mental to the very system the state of
Florida claims it is protecting. The news
media have a long and distinguished history
of uncovering and reporting on political
corruption. If a reporter can be barred
from discussing corruption charges merely
because he or she has been questioned by
grand jurors, a skillful prosecutor can ef-
fectively silence criticism of his perfor-
mance or that of his political allies.
- 15 -
I. PLA. STAT. § 905.27 IS AN UNCOR-
STITUTIONAL RESTRAINT ON NEWS DIS-
SEMINATION
The Florida statute operates as both a
prior restraint on speech and subsequent
punishment of those who disclose grand jury
testimony. It prohibits grand jury wit-
nesses from disclosing their own testimony
(§ 905.27(1)) and the news media from dis-
seminating the testimony of witnesses who
make such disclosures (§ 905.27(2)). A per-
son who violates these prohibitions can be
convicted of a misdemeanor (§ 905.27(4)) or
held in criminal contempt (§ 905.27(5)).
As this Court recognized in Nebraska
Press Association v, Stuart, 427 U.S. 539
(1976):
prior restraints on speech and publica-
tion are the most serious and the least
tolerable infringement on First Amend-
ment rights. - « « The damage can be
particularly great when the prior re-
straint falls upon the communication of
news and commentary on current events.
- 16 -
Id, at 359. "Any system of prior re-
~gstraints of expression comes to this Court
bearing a heavy presumption against its con-
stitutional validity." New York Times v.
United States, 403 U.S. 713, 714 (1971)
(quoting Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963) (citations omitted).
Justice Holmes first noted that the
First Amendment protects speakers against
being punished for their utterances as well
as against prior restraints. Schenck yv.
United States, 249 U.S. 47, 51-52 (1919).
Since then, this Court has repeatedly held
that laws and court rulings penalizing
speakers for contempt for discussing or
criticizing government actions are
unconstitutional.2 On numerous occasions it
2 See e.g. Bridges v. California, 314 U.S.
252 (1941) (voiding publisher's contempt for
criticizing judge's action in labor
dispute); Pennekamp vy. Florida, 328 U.S. 331
(1946) (voiding contempt for inaccurate
accusation in newspaper during grand jury
proceeding that judges were lenient toward
certain individuals under grand jury
- 179
has concluded that states cannot constitu-
tionally impose criminal or civil penalties
for publishing information lawfully obtained
by the news media from judicial records,
other government documents or by employing
routine reporting techniques.?
In Schenck, Justice Holmes asserted that
sanctions may be imposed against a speaker
only when “the words used .. . create a
clear and present danger that they will
2 continued
investigation); Craig v. Harney, 331 U.S.-
367 (1947) (voiding media contempt for
criticizing judge's action in civil case);
, 370 U.S. 375 (1962)
(voiding county sheriff's contempt for
charging publicly that grand jury was being
used for political purposes and for
interfering with the grand jury).
3 See Cox Broadcasting Corp. v. Cohn, 420
U.S. 469 (1975) (rape victim's name obtained
from document court clerk permitted reporter
to read); Landmark Communications, Inc, v.
Virginia, 435 U.S. 829 (1978) (information
about secret judicial inguiry board
proceeding); Smith v. Daily Mail Pub, Co.,
443 U.S. 97 (1979) (name of juvenile
homicide suspect obtained from police and
prosecutor); The Plorida Star vy. B.J.F., 109
S.Ct. 2603 (1989) (rape victim's name
obtained from document sheriff placed in
press room).
- 18 -
bring about the substantive evils that Con-
gress has a right to prevent." 249 U.S. at
52 (emphasis added). Looking back on the
line of cases refining Justice Holmes’ stan-
dard, the Court stated in Bridges vy. Cali-
fornia, 314 U.S. 252 (1941), that:
What finally emerges from the "clear
and present danger" cases is a working
principle that the substantive evil
must be extremely serious and the de-
gree of imminence extremely high before
utterances can be punished.
Id. at 263.
This Court has stated that prior re-
straints on publication of information re-
porters obtain legally pose an even greater
threat to First Amendment interests than
statutes which penalize speakers after the
fact.
A prior restraint, by contrast [to
a post-publication penalty] and by def-
inition, has an immediate and irrevers-
ible sanction. If it can be said that
a threat of criminal or civil sanctions
after publication “chills” speech,
prior restraint "freezes" it at least
for a time.
- 19 -
Nebraska Press, 427 U.S. at 559 (footnote
omitted).
It does not matter whether application
of § 905.27 to grand jury witnesses is
viewed as a prior restraint or a punishment
after the fact. Under the decisions cited
above, it could pass constitutional muster
only if Florida could demonstrate a compel-
ling state interest in preventing witnesses
from disclosing their own testimony and
that, in the case at bar, disclosure would
pose a "clear and present danger" to that
interest. It would have to demonstrate that
the statute is narrowly tailored to ef-
fectively serve that interest without impos-
ing an unnecessary burden on protected
expression, Nebraska Press, 427 U.S. at
562.
- 20 -
A. The State's Asserted Interest
Is Not Sufficiently Compelling
To Justify An Absolute Prohi-
bition On Witnesses’ Disclo- .
sure Of Their Grand Jury Tes-
timony
The state of Florida contends that the
blanket, perpetual prohibition against wit-
ness disclosure in § 905.27 is warranted by
a compelling need to protect the secrecy of
grand jury proceedings. In support of this
proposition, it cites the justifications
provided by this Court for maintaining grand
jury secrecy generally:
(1) To prevent the escape of those
whose indictment may be contemplat-
ed;
(2) to insure the utmost freedom to the
grand jury in its deliberations,
and to prevent persons subject to
indictment or their friends from
importuning the grand jurors;
(3) to prevent subornation of perjury
Or tampering with the witness who
may testify before [the] grand jury
and later appear at the trial of
those indicted by it;
(4) to encourage free and untrammeled
disclosures by persons who have in-
formation with respect to commis-
sion of crimes;
(5) to protect [the] innocent accused
who is exonerated from disclosure
of the fact that he has been under
investigation, and from the expense
of standing trial where there was
no probability of guilt.
- 21 -
Douglas Oil Co, of California v. Petrol
Stops Northwest, 441 U.S. 211, 219 (1979)
(quoting United States vy. Rose, 215 F.2d
617, 628-29 (3rd Cir. 1954)).
However, the mere existence of a gener-
alized state interest, no matter how compel-
ling, is not sufficient to deprive a person
of First Amendment protection. The State
must demonstrate the need for secrecy on a
case-by-case basis and it has provided no
explanation of how disclosure by reporter
Michael Smith of his own grand jury testimo-
ny after the grand jury has adjourned would
jeopardize any of the interests enumerated
in Douglas Oil. It has not even claimed
that this grand jury investigation or wit-
ness is unique, justifying a restraint on
witness disclosure in this case.
l. None Of The State's As-
serted Interests Justify
Gagging Smith
Addressing each alleged danger in turn,
it becomes apparent that the state's fears
- 22 -
are not only hypothetical, but are - remote
and speculative that they fail to establish
a compelling need for perpetually gagging
Smith.
Prohibiting Smith from publishing infor-
mation about his appearance before the grand
jury will not prevent those who might be in-
dicted from escaping because in this case
the grand jury investigation has been termi-
nated and no one was indicted.4 Purther-
4 This Court affirmed a decision declaring
unconstitutional an Indiana statute which
subjected to criminal punishment any person
who published the name of an individual
against whom a sealed indictment or
information had been filed until the
defendant was in custody. Worrel)
Newspapers of Indiana. Inc. v. Westhafer,
739 F.2d 1219 (7th Cir. 1984), af£'d without
epinion, 469 U.S. 1200 (1985). In its
Opinion, the Seventh Circuit said:
[T)he language of the statute does not
limit its applicability to those
situations which do present a “clear
and present danger." At best the
State's fears are remote and
speculative. This degree of danger is
=» 23 «
more, while the grand jury was in session,
its targets already knew that they were
under investigation.
Similarly, there is no danger that
Smith's proposed publications would inter-
fere with grand jury deliberations or would
prompt targets of the investigation to at-
tempt to influence the proceedings.» Be-
cause the grand jury adjourned without re-
turning any indictments, there is no reason
for anyone to tamper with witnesses or dis-
4 continued
insufficient to warrant an infringement
on the First Amendment.
Id. 739 F.2d at 1225.
5 The State argues that grand jurors need to
remain anonymous in order to carry out their
function without fear of reprisal. But it
is routine in at least some parts of Florida
to call the roll of grand jurors in open
court when they are given their charge and
to repeat this procedure when they return to
open court following deliberations. This
long-standing practice belies the state's
argument that juror anonymity is essential
to the grand jury process. Appendix at A-6
to A-9.
- 24 <-
courage potential witnesses from testifying.
While it is conceivable that a second grand
jury could be convened, this rarely occurs,
and surely is no justification for a blanket
prohibition in this instance or with regard
to grand juries generally.
The concern that disclosure will reveal
the identities of the innocent accused has
some facial appeal here because no indict-
ments were returned. But it is specious be-
cause the identities of individuals under
investigation had already been widely
publicized. See Appendix at pg. A-5. In
fact, Smith's proposed publications might
actually dispel rumors and gossip about the
targets of the investigation. As this Court
observed in voiding a prior restraint
prohibiting news stories about a criminal
pretrial suppression hearing:
It is reasonable to assume that,
without any news accounts being printed
or broadcast, rumors would travel
swiftly by word of mouth. One can only
speculate on the accuracy of such re-
ports, given the generative propensi-
ties of rumors; they could well be more
- 25 -
damaging than reasonably accurate news
accounts.
Nebraska Press, 427 U.S. at 567.
The state argues that the prohibitions
in § 905.27 are necessary because permitting
witnesses to disclose their own testimony
could have an inhibiting effect on witnesses
in future grand jury investigations as well
as on the particular grand jury in question.
Petitioners Brief at 11-13. But the State
reads more meaning into this Court's deci-
sion in Douglas Oil than is warranted. That
case involved the request of a third party
for access to a transcript of grand jury
testimony for use in a civil proceeding. A
request for disclosure of information not
provided by the person seeking access dif-
fers markedly strom Smith's desire to dis-
close only his own testimony.
In Douglas Oil, the Court said that po-
tential witnesses would be reluctant to ap-
pear before a grand jury out of fear that a
judge or someone privy to the investigation
- 26 -
would reveal their testimony later. But
there is no foundation for the assertion
that allowing each witness to decide for
himself whether to disclose his own testimo-
ny will have an inhibiting effect on poten-
tial witnesses in future grand jury
investigations.
The State has failed to demonstrate that
Smith's proposed publications would "dimin-
ish the effectiveness" of either this grand
jury or future grand juries. In re Russo,
53 F.R.D. 564, 572 (C.D. Cal. 1971). It
follows, then, that there is no compelling
need for an absolute and permanent restraint
on Smith's First Amendment right to speak.
2. There Is No Justification
For A Blanket, Statutory
Ban On Witness Disclosure
Florida's blanket prohibition on disclo-
sure is facially unconstitutional with re-
gard to grand jury witnesses as well as be-
ing unconstitutional as applied to Smith in
this case.
- 27 «
Beginning with Cox Broadcasting, Inc. vs
Cohn, 420 U.S. 469 (1975), this Court has
repeatedly overturned prior restraints and
post-publication punishment aimed at jour-
nalists who, like Smith, legally obtained
information about judicial proceedings and
criminal cases. Justice Holmes' “clear and
present danger" standard is at least implic-
it in every one of them. In each, this
Court required the state to demonstrate how
the situation confronting the court that im-
posed the restraint posed a serious and im
minent threat to the asserted state
interest.
In Landmark Communications, supra, a
newspaper publisher was convicted under a
Virginia statute that prohibited disclosure
of information regarding proceedings before
a state judicial review commission. The
state constitution provided ‘or the commis-
sion to investigate charges against judges
and to operate in confidentiality. A state
- 26 «
statute made it a crime to disclose informa-
tion related to judicial inquiries.
This Court recognized the importance of
confidentiality in such proceedings, as evi-
denced by incorporation of the provision in
the Virginia Constitution, and that secrecy
facilitated the work of the commission. But
it held that the need for secrecy did not
justify penalizing the news media for pub-
lishing truthful information about the pro-
ceedings obtained legally, especially be-
cause such speech “lies near the core of the
_First Amendment." Id,, 435 U.S. at 838.
In Smith v. Daily Mail, 443 U.S. 97
(1979), the Court also found a state inter-
est in confidentiality of juvenile criminal
proceedings significant, but not suf-
ficiently compelling to justify a blanket
secrecy rule. At issue in that case was a
West Virginia statute that made it a crime
for a newspaper to publish, without approval
of the Juvenile Court, the name of any youth
- 29 -
charged as a juvenile offender. Relying on
Landmark, the Court held that the state's
interest in protecting the anonymity of ju-
venile offenders did not justify imposing
criminal sanctions on the press for the
truthful publication of the identity of a
juvenile suspect in a homicide investigation
obtained from a prosecutor and police.
In The Florida Star v. B.J,F., 109 S.Ct.
2603 (1989), a jury awarded civil damages to
a rape victim who sued a newspaper under a
Florida statute making it a crime for the
media to publish the names of sexual assault
victims. The newspaper obtained the name
from a police report made available to re-
porters by the sheriff. Relying heavily on
Smith vy. Daily Mail, this Court voided the
award, holding that the state's interest in
protecting privacy was not se compelling
that it would overcome the media's First
Amendment right to publish lawfully ob-
= 36 -
tained, truthful information in all
instances .®
It should be noted that the State of
Plorida argues here, as it did in Florida
Star, that because the Legislature passed a
statute creating a class of confidential in-
formation and designating who may have such
material, anyone else cannot obtain the in-
formation legally. It goes on to state that:
6 Several federal courts have recognized
that gags on grand jury witnesses are
permissible only upon a showing of
compelling need in the case at bar, rather
than a generalized claim that grand juries
must be secret to function properly. For
example, the Eighth Circuit hele that “there
must be a ‘compelling necessity .. . shown
with particularity’." In re Grand Jury
Subpoena Duces Tecum, 797 F.2d 676, 681 (8th
Cir. 19%6). That ruling was cited by the
Eleventh Circuit in upholding a District
Court order mandating grand jury witness
secrecy. In re Subpoena to Testify Before
Grand Jury, 864 F.2d 1559 (llth Cir. 1989).
See also In re Grand Jury Witness Subpoenas,
370 F. Supp. 1282, 1285 (S.D. Fla. 1974)
("under the circumstances of this case,
disclosure would be inconsistent with valid
reasons for maintaining a cloak of secrecy
in grand jury proceedings"). See also In re
, 814 F.2d 61, 69 (lst
Cir. 1987) (secrecy order not justified when
government “has not made a showing of why
@ 3) -
because suppression of lawfully ob-
tained information is not at stake, the
state need not show that continued se-
crecy represents “the highest form of
state interest" or a “compelling state
interest."
Petitioner's Brief at 18.
But this Court has rejected the argu-
ment, stating that:
the fact that state officials are not
required to disclose such reports does
not make it unlawful for a newspaper to
receive them. .. . Nor does the fact
that the Department apparently failed
to fulfill its obligation under
§ 794.03 not to “cause or allow to be
+ « « published" the name of a sexual
6 Continued
secrecy would be required in these
particular circumstances"); and In re Grand
» 575 F. Supp. 93,
94 (S.D.N.Y. 1983) (government claim that
"investigation would be frustrated" does not
constitute a “particularized showing of need
for secrecy” sufficient to overcome First
Amendment interests). In all of these cases
the grand juries were still in session, a
factor that was critical in the two Florida
federal court cases in which secrecy orders
were upheld. The Eleventh Circuit found
that “[t])he court's concern for grand jury
secrecy and for the grand jury's law
enforcement function is generally greatest
during the investigative phase of grand jury
proceedings.” 864 F.2d at 1564, quoting S.
Beale & W. Bryson, Grand Jury Law &
Practice, § 10:18 (1986).
- 32 -
offense victim make the newspaper's en-
suing receipt of this information
- unlawful.
Florida Star, 109 S.Ct. at 2610-11. It not-
ed that the state could provide a remedy
against the government employee or agency
that disclosed confidential information, but
not against the media.
In Landmark Communications, without
passing on the constitutionality of the Vir-
ginia law prohibiting disclosure of judicial
inquiry material, this Court concluded that
the newspaper legally obtained the informa-
tion even though its source almost certainly
violated the law. Under Landmark, a report-
er who obtains and publishes grand jury tes-
timony in violation of § 905.27(2) cannot
constitutionally be punished.
Adoption of Florida's position in this
case would lead to the absurd result that a
reporter could publish information leaked by
a grand juror without fear of punishment,
but could not disclose his own testimony.
- 33 <-
Furthermore, this Court would send a clear
Signal that subpoenaing reporters covering a
political corruption investigation could
work to a prosecutor's advantage by cutting
off the flow of information to the public.
As the Eleventh Circuit properly noted
in ruling that § 905.27 cannot constitution-
ally be applied to witnesses, the failure of
the federal court system to impose a blanket
restraint on grand jury witnesses undermines
Florida's contention that there is a suf-.
ficiently compelling need for perpetually
Silencing them. Indeed, the Federal Rules
of Criminal Procedure have always specifi-
_ cally exempted witnesses from grand jury se-
crecy requirements. Fed. R. Crim. P. 6(e).
See Federal Rules of Criminal Procedure,
Preliminary Draft, Advisory Committee Notes
- 34 -
(1943) (secrecy rule “does not apply to wit-
nesses before the grand jury”).?
The State correctly points out that the
federal rule does not set a limit on how
states can ensure the secrecy of grand jury
proceedings. Petitioners Brief at 15. But
the 43-year history of Rule 6(e) demon-
strates that allowing grand jury witnesses
to disclose their own testimony does not im-
pair the federal grand jury system.
7 On at least three occasions between
Pebruary 1941 and February 1943, the
Advisory Committee on Rules of Criminal
Procedure discussed whether Fed. R. Crim. P.
6(e) should apply to witnesses. One member
explained his opposition to a gag on
witnesses as follows:
MR. MEDALIE: . . . An employee has a
right to come back and tell his boss; a
fellow director has a right to come
back and tell his fellow director what
has happened. What has happened here
is that people in close personal
relations cannot tell each other what
happened before the grand jury when it
is to their interest and the interest
of their business; everything they are
doing; they should know and exchange
that information.
Now we have developed a notion
about grand jury secrecy that is really
- 3§ -
In addition, the experience of at least
30 states that do not impose blanket bans on
disclosure by grand jury witnesses belies
Plorida's claim. Among these states, rules
in 11 states, plus the District of Columbia
and the Virgin Islands, specifically exclude
witnesses from grand jury secrecy, and rules
in four states have been interpreted as op-
erating similarly to Rule 6(e). In addi-
tion, rules in at least 15 states are silent
7 Continued
perfectly absurd. After all, it is
only an inguiry made by a judicial
body. .. . In New York, for instance,
there is no prohibition in the statute
on a witness telling what his testimony
was before the grand jury. Nothing bad
has happened, and the pretense of this
secrecy simply produces a falsehood.
The fact is there is not that secrecy.
Minutes of Meeting Feb. 20, 1943, at 288.
See also Hearing Before the Advisory
Committee on Rules of Criminal Procedure,
United States Supreme Court, Feb. 21, 1941
at 75-76; Advisory Committee on Rules of
Criminal Procedure, United States Supreme
Court, May 18, 1942 at 222-226.
- 36 -
as to any secrecy requirement on grand jury
witnesses. See Appendix at pg. A-10.
Florida, nonetheless, claims that re-
gardless of what the federal courts and
other states have decided, it is “within the
discretion” of its Legislature to enforce
"an absolute blanket of secrecy” on grand
jury witnesses. Petitioners Brief at 15,
17.
Judicial deference to legislative policy
decisions is appropriate in some instances.
Williamson vy. Lee Optical Co,, 348 U.S. 483
(1955) (upholds court deference to legisla-
tive purpose in enacting economic regula-
tion); City of New Orleans vy. Dukes, 427
U.S. 297, 303 (1976) ("the judiciary may not
sit as a superlegislature to judge the wis-
dom or desirability of legislative policy
determinations made in areas that neither
affect fundamental rights nor proceed along
suspect lines"). But ungualified deference
to the policy-making discretion of the
- 37 -
Plorida Legislature is impermissible where,
as here, the state statute infringes a right
protected by the U.S. Constitution. "Defer-
ence to a legislative finding cannot limit
judicial inquiry when First Amendment rights
are at stake." Landmark Communications, 435
U.S. at 843. Chief Justice Burger stated
that while the Legislature may appropriately
declare its purposes in enacting a particu-
lar law:
(T] he judicial function commands analy-
Sis of whether the specific conduct
charged falls within the reach of the
statute and if so whether the iegisla-
tion is consonant with the
Constitution. Were it otherwise, the
scope of freedom of speech and of the
press would be subject to legislative
definition and the function of the
First Amendment as a check on legisla-
tive power would be nullified.
Id. at 844.8
8 The Court quoted with approval Justice
Brandeis' concurring opinion in
California, 274 U.S. 357, 378-79 (1927):
[A legislative declaration] does not
preclude enquiry into the question
whether, at the time and under the
circumstances, the conditions existed
- 38 -
Furthermore:
The ultimate responsibility to define
the limits of state power regarding
freedom of speech and expression rests
with this Court, [citations omitted]
and when it is claimed that such liber-
ties have been abridged, we cannot al-
low a presumption of validity of the
exercise of state power to interfere
with our close examination of the sub-
stantive claim presented.
Wood v. Georgia, 370 U.S. 375, 386 (1962)
(footnote omitted).
Because the state has demonstrated
neither a compelling need to silence Smith
in this case nor an interest in protecting
grand jury secrecy so great that a blanket
8 continued
which are essential to validity under
the Federal constitution. .. -
Whenever the fundamental rights of free
speech and assembly are alleged to have
been invaded, it must remain open to 4
defendant to present the issue whether
there actually did exist at the time a
clear danger; whether the danger, if
any, was imminent; and whether the evil
apprehended was one so substantial as
to justify the stringent restriction
interposed by the Legislature.
Landmark, 435 U.S. at 843-44.
- 39 -
prohibition would be permissible, this Court
should declare § 905.27 unconstitutional to
the extent that it prohibits grand jury wit-
nesses, including reporters, from disclosing
their own testimony.
B. Florida's Blanket Prohibition
Protect The State's asserted
Interest
Even if this Court were to find that
Florida's interest in protecting grand jury
secrecy is sufficiently compelling, § 905.27
is unconstitutional. The decisions of this
Court require that no restraint on speech be
imposed unless it is capable of furthering
that interest without unduly infringing on
the First Amendment interests at stake in a
arti
particular case. Nebraska Press, 427 U.S.
at 562.
The State vehemently asserts that
§ 905.27, while prohibiting publication of
what a witness tells the grand jury, does
not prevent him from reporting information
- 40 -
gained through his "independent efforts.”
Petitioner's Brief at 20. It claims, there-
fore, that § 905.27 serves its purpose
without unduly burdening protected speech.
The State's argument that § 905.27 is
narrowly tailored is disingenuous because
before the grand jury witnesses can testify
only as to what they know before appearing,
and can identify and discuss only evidence
which they have previously seen. Therefore,
the statute can serve its intended purpose
only if it prohibits witnesses from discuss-
ing all that they know about the subject un-
der investigation merely because they were
questioned by the grand jury.
Furthermore, the State acknowledges that
the gag imposed by § 905.27 prohibits dis-
closure of far more than that which tran-
spires in the grand jury room. It states
that the statute prohibits "Smith from re-
porting facts that he did [] learn or testi-
fy to when he was before the grand jury.”
—_®
e.—
- 41 -
Petitioner's Brief at 20, n. 8 (emphasis
added). It would appear, therefore, that if
a witness such as Smith is questioned close-
ly by the grand jury there will be nothing
that person can say publicly after appearing
before the panel.
The statute's criminal contempt provi-
Sion, § 905.27(5), makes it virtually impos-
sible for witnesses to disclose anything re-
lated to their testimony.
As this Court stated in Near yv,
Minnesota, 283 U.S. 697 (1931):
where a newspaper .. . has been sup-
pressed because of the circulation of
charges against public officials of of-
ficial misconduct, it would seem to be
clear that the renewal of the publica-
tion of such charges would constitute a
contempt, and that the judgment would
lay a permanent restraint upon the pub-
lisher to escape which he must satisfy
the court as to the character of a new
publication. ...,
If we cut through mere details of
procedure, . . . public authorities may
bring the owner .. . before a judge
upon a charge of conducting a business
of publishing scandalous and defamatory
matter . . . and, unless the owner
- «+ «+ is able and disposed to bring
competent evidence to satisfy the judge
that the charges are true and are pub-
lished with good motives and for justi-
fiable ends, his newspaper .. . is
Suppressed and further nuhlieatinn ic
- 42 -
made punishable as a contempt. This is
of the essence of censorship.
Id. at 283 U.S. 709-710
So, too, Fla. Stat. § 905.27 creates a
presumption that a person who publicly dis-
cusses matters under investigation, after
appearing as a witness, has violated the
law. The witness runs the risk of being
hauled before a judge and bearing the ex-
pense of hiring a lawyer to prove that the
comments were based on information obtained
through “independent efforts.”
In overturning a contempt finding
against a sheriff who not only made public
the nature of a grand jury investigation of
him, but communicated directly and publicly
with the panel, the Court stated that:
Consistent suppression of discussion
likely to affect pending investigations
would mean that some continuing public
grievances could never be discussed at
all, or at least not at the moment when
public discussion is most needed. .. .
[I]n the absence of any showing of an
actual interference with the undertak-
ings of the grand jury, this record
lacks persuasion in illustrating the
serious degree of harm to the adminis-
tration of law necessary to justify ex-
ercise of the contempt power.
. ee
- 43 -
Wood, 370 U.S. at 393.
A statute which prohibits grand jury
witnesses from disclosing their own testimo-
ny regardless of whether such speech would
interfere with the inquiry is, by defini-
tion, not narrowly tailored to protect the
state's interest. As this Court recognized
in Wood, supra, with regard to invocation of
the contempt power, and in Florida Star with
regard to imposition of civil damages fol-
lowing publication, 109 S.ct. at 2612,
case-by-case examination is required by the
Pirst Amendment.9 As the decisions cited
9 As the Court ruled i
n void
Massachusetts statute requiring rh ngpeat
proceedings in all criminal cases involving
juvenile sexual assault victims, mandatory
court closure statutes are, by definition
mot narrowly tailored to protect a
compelling state interest. Glooe Newspaper
Co, v. Superior Court, 457 U.S. 596, 607-
(1982). Acknowledging the shusbddaens
interest states have in protecting young
victims, the court nonetheless said that the
need for secrecy must be demonstrated on a
case-by-case basis. Such analysis is no
less necessary before restrictions are
- 44 <-
in footnote 6, supra, indicate, requiring 4
court in each case to evaluate the state's
asserted need for secrecy and the breadth of
any gag order, if required, would impose
only a minimal burden on the government .10
This case clearly illustrates the over-
breadth of § 905.27. The grand jury was
convened as a result of Smith's stories pub-
lished in the Charlotte, Fla., Herald-News.
The Florida statute makes it impossible for
9 continued
imposed on speech. Florida Star, 109 S.Ct.
at 2612.
10 Petitioners’ reliance on Seattle Times
vy. Rhinehart, 467 U.S. 20 (1984), to support
a contrary result is misplaced. In fact,
that decision endorses the proposition that
case-by-case analysis is required before
issuance of a prior restraint. Id. at 37
(Brennan, J., concurring). Purthermore,
that case did not involve a broad, perpetual
ban on speech like the one imposed by
§ 905.27. This Court stated that the
potential for abuse of the civil discovery
process by litigants is very great and that
a party could inflict great harm on an
opponent or third parties if no limits could
be placed on disclosure of information
obtained under the discovery rules. Id, at
34-35. The criminal justice system is
designed to minimize the potential for such
- 45 -
Suith, after appearing before the grand
jury, to publish information acguired in the
course of his investigative reporting as
well as that which he told the grand jury.
If he were to publish anything about the
case it is likely that he would be held in
contempt and forced to suffer the expense of
Proving that what he published was not part
of his testimony.
Prohibiting him from disclosing his tes-
timony will not alleviate the harms that the
Statute was intended to prevent. Por in-
Stance, despite Smith's refusal to answer
reporters’ questions when he emerged from
the grand jury room, news accounts at the
10 Continued
abuses, so it is not nec
essa to
a , -y— determining #2 —
witnesses. In additi
possibility of abuse of eo
the
ony — AF _= , pocadttion cokes
. sclosure
because prosecutorial sinouminen ot Gee
Grand juries
Scammed are matters of grave public
~
- 46 -
time clearly indicated, and the special
prosecutor acknowledged, that the investiga-
tion centered on the State Attorney's
office. See Appendix pg. A-5.
The only issue about which the news
media speculated was whether the grand jury
was investigating the possibility that a
1974 death had been a homicide that was cov-
ered up, or a case in which a county grand
jury failed to indict several suspects who
were later convicted in federal court of
drug trafficking. See Appendix pg. A-4.
Smith had previously written about the state
attorney's handling of both cases.
Thus, the contents of his grand jury
testimony were already public, and prohibit-
ing disclosure of his testimony would ac~
complish nothing.?+ Clearly, a prior
restraint on Smith would not “effectively
prevent the anticipated harm.” Nebraska
Press, 427 U.S. at 562.
1l probably the only thing Smith could have
learned purely from his appearance before
the grand jury is the specific questions he
wae asked.
Tt is doubtful that these
Ei
e 69 «
II. PLA. STAT. § 905.27 MAKES
POSSIBLE FOR THE A 50
The constitutional guarantee of freedom
of the press is intended to allow an in-
formed citizenry to hold public officials
accountable for their actions and, there-
fore, the Court of Appeals decision should
be affirmed as a matter of public policy.
11 continued
questions revealed anything to Smith that
h
_— not already know, given his eutensive
~ ependent investigation of the subject of
— inquiry. After likening a judicial
nguiry board investigation to a gran. jury
proceeding, the Third Circuit concluded that
a witness could not be prohibited from
disclosing information obtained as a result
of appearing before the board as well as
material obtained from outside sources.
,» 784 F.2d 467 (3rd Cir. 1986
hy be oe f it has been held that "the Pole
: c S to be upheld is the final action or
naction of the grand jury and not the
specific questions Propounded to and
speci
og answers given by a particular
iste » 321 F. Supp. 238, 240 (N.D. Ohio
- 48 -
The press, in its “watchdog” role, acts as a
check on government by exposing abuses and
corruption to public scrutiny.}2 Pirst
Amendment scholars describe the news media
as performing the “task of preventing abuses
of the public trust.” Blasi, “The Checking
Value in First Amendment Theory,” 1977 A.B
Poundation Res.J. 521, 584. See generally
Nimmer on Preedom of Speech, § 1.02([T]
(1989).
This Court has said chat the watchdog
function is especially significant in con-
nection with news coverage of the judicial
systen.
e commission of crime, prosecutions
pel me from it, and judicial pro-
ceedings arising from the prosecutions
. « « are without question events of
legitimate concern to the public and
consequently fall within the responsi-
12 professor Vince Blasi characterized this
as che value that free speech, a “wr
press, and free assembly can ag FY
checking the abuse of power by pub ~
officials.” Blasi, “The Checking Value =
Pirst Amendment Theocy, (1977) A.B.
Poundation Res.J. 521, 527.
a
- 49 -
bility of the press to report the oper-
ations of government.
Cox Broadcasting, 420 U.S. at 492. A
Similar view of the news media's role was
expressed in Sheppard vy. Maxwell], 384 U.S.
333 (1966):
A responsible press has always been re-
garded as the handmaiden of effective
judicial administration. ... Its
function in this regard is documented
by an impressive record of service over
several centuries. The press does not
ee publish information about trials
ut
justice by subjecting the police, pros-
ecutors, and judicial processes to ex-
tensive public scrutiny and criticism,
Id, at 350 (emphasis added).
Applying the Plorida statute to Smith
threatens to eliminate the kind of news cov-
erage that is crucial to self-government.
Long before the grand jury was convened,
Smith was fulfilling his role of guarding
against the miscarriage of justice by re-
porting on an alleged coverup by a sheriff
and failure of a state attorney to prosecute
a shooting death officials had termed a
suicide. It was due to Smith's efforts that
a grand jury was convened to investigate the
- 50 -
death and alleged misconduct. Now that he
has been called to testify, § 905.27 pre-
yents Smith from continuing to inform the
public about the actions of government of-
ficials in this case because he fears that
he will be charged with a misdemeanor or
held in contempt.
The significance of news media exposure
of government abuses is demonstrated by an
impressive list of investigative stories
that, like Smith's, led to grand jury
investigations. The Pulitzer Prize competi-
tion provides a mere sampling of how re-
porters’ efforts have exposed corruption
that might otherwise have gone unchecked.
Between 1970 and 1989, the Pulitzer, newspa-
per journalism's most prestigious honor, has
been awarded 13 times for news reporting
that has prompted grand jury
- §) «-
investigations.13
Por example, the Indianapolis Star won
the 1975 Pulitzer for Local Investigative
Reporting for a six-month investigation by a
team of reporters that uncovered widespread
corruption in the city police department.
“Pulitzer Prizes in Journalism, 1917-1985,"
1975 nominating letter, Library of Congress
Microfilm 86/225 (H). The newspaper's probe
revealed that dozens of policemen were en-
13 The following newspapers received
Pulitzers for stories that prompted grand
jury investigations: Long Island, N.Y.,
Newsday, 1970 Meritorious Public Service
Award for stories about secret land and
zoning deals involving public officials and
political party officeholders; Chicago
Tribune, 1971 Local Investigative Reporting
Award for exposing payoffs to police
officers from ambulance companies in
exchange for referrals; Boston Globe, 1972
Local Investigative Reporting Award for
stories revealing city officials' violations
of municipal contract bidding laws; Chicago
Tribune, 1973 Local Investigative Reporting
Award for a series of articles uncovering
voter fraud in municipal elections;
= » 1974 National Affairs
Reporting Award for stories tracing secret
and illicit campaign contributions;
, 1975 Local Investigative
indianapolis Star
Reporting Award for exposing corruption in
@ $2 -
gaged in graft and protection for prostitu-
tion, narcotics trafficking, bootlegging and
gambling. After the series was published, a
federal grand jury was convened, and many
policemen were targets of the inquiry.
The 1978 Local Investigative Reporting
Award went to the Stamford, Ct., Advocate
for reporter Anthony Dolan's series detail-
ing corruption in the Stamford Police De-
partment and other municipal departments.
13 Continued ; we
it olice departm Philadelphia
FF. 4 1977 Local Investigative Reporting
Award for stories detailing corruption and
abuse of patients at a state eg tit
hospital; Philadelphia Inquirer, 197
Meritorious Public Service Award for
uncovering evidence of illegal police
violence against homicide suspects;
Stamford, Ct., Advocate, 1978 Local
Investigative Reporting Award for a series
on corruption by police officers and other
city officials; Arizona Daily Star, 1981
Local Investigative Reporting Award for
reporting on misuse of funds and other
misconduct by the University of Arizona head
football coach; Washington Post, 1983 Local
Investigative Reporting Award for stories
about rape of inmates in a Maryland
detention center; St. Petersburg, Fla.,
Times, 1985 Local Investigative Reporting
Award for revealing corruption by a county
- 53-
"Pulitzer Prizes in Journalism, 1917-1985,"
Supra, 1978 nominating letter. Dolan demon-
strated that the state police, the state at-
torney general and the FBI had refused to
investigate organized crime in Stamford.
His stories prompted numerous resignations
and dismissals of officials. Eight separate
federal inquiries and a special federal
grand jury probe of city corruption followed
publication.
The St. Petersburg, Fla., Times won the
1985 Local Investigative Reporting Pulitzer
after two reporters revealed that the Pasco
County Sheriff's office was riddled with in-
efficiency, cronyism and corruption while
the sheriff conducted personal business out
of his office. "Pulitzer Prizes in Journal-
13 Continued
sheriff; Philadelphia Inquirer, 1985 Local
Investigative Reporting Award for
documenting a pattern of unprovoked attacks
by police dogs on civilians. "Pulitzer
Prizes in Journalism, 1917-1985," Library of
Congress Microfilm 86/225 (H).
- 54 -
ism, 1917-1985," supra, 1985 nominating
letter. Among the discoveries published in
the newspaper was the sheriff's appointment
of an eccentric millionaire with whom he did
business to a prominent position in the de-
partment and the bungling of a key criminal
investigation. The newspaper series, which
at first prompted the sheriff to harass the
reporters and then to fire some of his depu-
ties, ultimately led to the sheriff's in-
dictment on multiple felony charges.
Journalists who report on government
abuses and corruption often are subpoenaed
to testify before grand juries convened to
investigate the exposed misconduct. Several
of the Pulitzer Prize winning reporters, for
example, were called to testify before grand
juries. A Boston Globe reporter who won the
1972 Local Investigative Reporting Award for
exposing municipal contracting violations
was subpoenaed by a grand jury investigating
city officials. Brine and Wermiel, "3
» 88 -
former Somerville mayors indicted," The
Boston Globe, Aug. 11, 1971, p. 1, col. 1.
Similarly, Indianapolis Star reporters who
contributed to the paper's 1975
prize-winning coverage were subpoenaed by a
federal grand jury convened to investigate
corruption in the police department. Sup.
Ct. Marion Cty., Crim. Div. 1, Dec. 7, 1973;
Sup. Ct. Marion Cty., Crim. Div. 2, March
25, 1974, Sept. 2, 1974, and Oct. 4, 1974.
Numerous other journalists have been
subpoenaed by grand juries investigating po-
litical corruption because of their report-
ing efforts. For example, Philadelphia Bul-
detin reporter Fawn Vrazo was subpoenaed in
1980 to testify before a New Jersey grand
jury that was investigating allegations of
theft of public funds. Ince Grand Jury
Subpoena of Vrazo, 176 N.J. Super. 455, 423
A.2d 695 (1980). A grand jury investigating
political corruption in Pennsylvania subpoe-
naed reporters' notes of conversations with
- 56 -
a witness in the investigation who had dis-
cussed the case with the district attorney.
In re Taylor, 412 Pa. 32, 193 A.2d 181
(1963). A Massachusetts grand jury subpoe-
naed a transcript of a Boston Globe re-
porter's interview with the mayor concerning
an alleged recipient of a bribe. In re Suf-
folk County Grand Jury (Sup. Ct. Suffolk
Co., Mass. 1976). A Richmond, V4a.,
Times-Dispatch reporter who wrote an article
on the use of drugs by lawyers, judges and
public officials was subpoenaed by a grand
jury investigating the matter. In re Robin
Traywick (Va. Cir. Ct., Div. 1, July 18,
1982).
The Florida statute's broad prohibition
against disclosure by grand jury witnesses
lends itself to abuse by prosecutors who may
have reason to silence particular reporters.
For example, a skillful prosecutor em~
broiled in a scandal, or whose political as-
sociates have been accused of corruption,
- 87 «
could compel the reporter covering the case
to testify before a grand jury and ask ques-
tions about all matters related in past news
stories. Under § 905.27, the journalist
could then be ordered not to disclose
anything related to the grand jury testimo-
ny, effectively Silencing critical news
coverage.
Reporters could be in the untenable po-
Sition of having to comply with grand jury
Subpoenas because of their investigative re-
porting, and then having to abandon their
reporting efforts or run the risk that they
will be jailed or fined for having violated
§ 905.27.
As Justice Stewart noted in his dissent
in Branzburg vy. Hayes, 408 U.S. 665 (1972):
[U]nder the guise of "invest
i iga
com vindictive prosecutors — on
ng the broad powers of the grand jury
which are, in effect, immune from judi-
cial supervision, explore the newsman's
sources at will, with no serious law
enforcement purpose. The secrecy of
the grand jury proceedi
tle consolation to a ———.
e $8 -
Id. at 745, n. 34 (Stewart, J., dissenting).
He further acknowledged that “a confiden-
tial relationship between a reporter and his
source [could] be so sensitive that mere ap-
pearance before the grand jury by the news-
man would substantially impair his
newsgatbering function." Id, at 751.
Yet, under § 905.27, a reporter called
before the grand jury could be fined or
jailed for telling the public that he re-
fused to answer any questions put to him by
jurors.
If reporters can be silenced simply by
being called to testify before a grand jury,
coverage of government officials would be
severely curtailed. Particularly when news
coverage of corruption and official miscon-
duct is limited, the public is harmed be-
cause it is denied information that is cru-
cial to voting decisions.
CONCLOSION
Por the reasons stated above, Amici urge
this Court to declare Pla. Stat. § 905.27
unconstitutional insofar as it prohibits
disclosure by witnesses of their grand jury
testimony and dissemination of such disclo-
sures by the news media.
Respectfully submitted,
Jane E. Kirtley
Robert S. Becker
The Reporters Committee
for Freedom of the
Press
Suite 504
1735 Eye Street, N.W.
Washington, D.C. 20006
(202) 466-6313
{Attorneys for Amici
Curiae)
December 18, 1989
Smith, “Hunting ‘suicide’ rently
was killing with intentional
cover-up,” Herald-News, June 26,
1985, P- A-l eee eeeeeeeneneeneeneeeeee
Evans, “State attorney withdraws legal
counsel during reporter's grand
jury testimony,” Herald-News, Dec.
, 19
Fagin, “Graham Appoints Adviser for
Charlotte Jury,” Sarasota Herald-
Tribune, Dec. 11, 1985, p. A-l ....
Tobin, “Grand jury probes state
attorney office matters,” Fort
Myers News-Press, Jan. 11, 1986, p.
A-1 ee eeeeeeeeeeeeeeeeeeeeeeeeeee
Hillsborough County Grand Jury Manual
(excerpts) “eee eeeeeeeeeeneneeeeeeeee
State Grand Jury Secrecy Rules and
A-3
A-6
Statutes eee ee eeeeeeeeeeeeeeeeeeee A-10
Charlotte (FL) Herald-News
June 26,
1985 P. A-l
A-1
‘Hunting ‘suicide’ apparently was
killing with intentional cover-up
i
:
|
i
4:
FF
Hi
t
AI
Hi
it
:
Cirewit State Robert
Eagan
The case involved the death of
Wuham Jackmaa Jr
18, an Alve who was hore
on leave for Ge Christmas
hobdays after compietng tus
basic (ramung im Une Aur Force
Jack man was miled
Deemer » 8 #£«oeer
Wamecka s
Babeock ranch
TP
fH
he
4
fi
:
;
:
LE
;
fred of pohce
ack man $ suster and
Grifrend. were aiso found
Stuck ‘Mtoe the sand Sesede He ~
The death scene oomed ume a
classec swcode There were even
spem ofle cartrwges on the
ehh one mecca
euarmuner called ‘test shots
wtech were apparently fired
pror to the alleged suicide
The cause of death eas sted
man Wve day after ‘us death
In 1975. the rumors prompiea
the Governor of Flenda to order
an om esthgathon omte the death
by the Flermda Department of
Crmmena! Law Enforcement. the
forerunner of the state in-
vest@atiwe agency, now known
as
Dr Joseph H Davis. a
natenaliy known forensic
pathoingrs! «he 's currently the
Metheal Examemer for Dade
County «as olen emploved in
the (Gowernor + mmrestigation
Devs rewewrd the evidence
swoetted te tem hy the
Geowerner < mes: gators and
comrbeted that the death uac
mdret a smcude Im April 1976 4
Lee (quant: erand jury also
ehet omte the matter The
grand wry «as beaded by State
Atterne, Hebert Eagan who
S25 SPPwrted hy "he Governor
#* 2 “Pees! presecutor in the
case
fvetence that
"25 amettung but a
eae swede The grand ju
further stated thar + cannes
© he Een pery that rumors
sre maliciously fos ‘ena
aneene Sy pmnee = whose
motives are something other
working on
seperate investigations into the
Jackman case the Daily
In comparing the findings of
their independent in-
vestigations the tro found the
case nearly solved ex for
The photographs were crucial
in solving the case. but without
Revane Welsh persistance,
have heen mace
available While investigating
the case. evan attempted to
obtain the photographs from the
Lee County Sheriff's Depart.
ment but officials there would
net release the photographs
even though Florida s Public
Records Law mandates that the
records be available for public
Inspection
weld not
The sheriffs department even
stiempier: to exempt = the
photographs from the public
records law bul released comes
of several of the death scene
photographs after Revan
notified the denartment of his
intention to file a suit on order to
obtain them
ven sn the shenff's
department did not release all
of the photographs to Bevan and
he intends to file the civil achon
today for the intention of pur-
suing (he case
When the photographs were
compared to the uritten police
reror'ts nurnerous
discrepancies appeared which
jet te discrediting nearly al! of
the evidence aprear-ng ion the
Charlotte
June 26,
(FL) Herald-News
1985 P. A-16
cont'd
Hunting ‘suicide’ appears to be a killing
Une aote in
pocket knife in the death —
photographs — a spatter whic
lends ay et. the suicide
note as a fraud.
The rifle was also determined
not to have been the instrument
af Jackman’'s death when it was
determined that, in order for
Jackman to shoot himself. the
muzzie would have had to
contact his chest.
Several forensic pathologists
were contacted, «ncluding Dr
Graves, the medical examiner
who performed the autopsy.
and,. after examining the
photographs of the wound, the
forensic pathologists indicated
that it was not consistent with a
contact gunshot wound.
“It's (the wound) sharply
demarcated, (raves said
There do not aprear to be any
lacerations of the wound
margins which are sometimes
. Seen in ‘fcontact) entrance
wounds over hard, fixed bony
tissue due to the expansion of
gases from the muzzie of the
gun escaping under the skin.”
Graves added however, that the
sternum of a person Jackman's
age would be flexible
The wound itself, too large for
a J0-caliber bullet. at the
sternum measured 18 cm in
diameter. according to Graves’
autopsy report
AIL ADITC
Searching through firearms
ammunition catalogs and fin-
ding no rifle cartridges which
match the entrance hole,
Shotgun shelis were cut apart
and measured until it was
determined that a twelve-gauge
rified slug measure: exactly 1 8
cm in diameter
Having been shown a twelve.
gauge rifled slug. which
measures approximately 1.7 to
18 cm. | would say that the
gunshot wound is consistent
with such a projectile.” Graves
Said ‘Il might add the caveat
that Lam not a ballistics expert
but | am familar with gunshot
«ounds.”
i
uy
{
rF
siz
;
i
f
if
il
If
t
ti
i
asf
ii
;
i
TH
i
i
|
it's est incomabeent wiles
position different
corresponded to those on Jack-
man's left side
“This clearly indicates to me.
in my upimon, that the left arm
was at his side when all this
bleeding took place.’ Graves
said. adding that he was not
impiving thgt the body was
altered or had been aragged to
another location ‘The blond
pattern on the shirt and on his
arms iS suggestive of his arms
having been raised above his
head after death Looking at the
scene photographs it is ap
parent to me that the arms were
raised above the head after
death but Lam not implying that
that was done in order to alter
the death scene
The heavy blood flow on the
left side was consistent with the
theory that the hov had heen
partially rolled to that side in
order for someone to get into
Jackman’s right rear pants
pocket to obtain his wallet and
the photographs which were
used in setting up the so-called
sincide “altar ’ according to
anvther forensic patholegist
Although propert, receipts
are in the case {ile for the rifie
empty cartridges, the tuo
photographs pocketkmile. anda
wristwatch. there is no wallet
among the items listed in the
property receipts The wallet
sized suicide altar
photograph which the police
reports Sav is Supposed to have
heen Jackman'’s «<ter i< aleo
“rong The gir! iw the
photograph. while simular wn
appearance to Jackman's
sister. was identified as an
enurely different individual!
after researching high school
\ earbooks
Discrepancies and an ap
parent attempt to misiead are
also to be found im the sworn
witness statement made by
Wanicka. One such statement
appears to imply that the
medical examiner went to the
scene to examine the bodv
The statement reads ‘We
waited for .Col' Dave Wilson
Wamckas second in com-
mand) and when he came back.
we had him contact the Coroner
to see what he wanted to do with
the body We explained the
Situation to him. When he came
back, we all went to the scene
and the Coroner said to go
aneac to move the body tha: it
#aS apparent ‘Nat ‘here was no
foul piay invoived ,
Graves said "hat when Wilson
‘wormed him of the death ne
433 ‘oid that the cody was ina
relatively imaccessadle area
ind \t was a iong huke from
4nere a venicie could park ‘:o
4nere you would Nave to go to
retmeve the Dody
The death scene Wilson
‘terrec :0 ‘S$ apparentiv dif
erent from that which Wanicka
refers to. in his sworn witness
statement, which reads “ |
trove Dack thence 'o a road that
goes East to West on the County
Line and mght at the County
Line or just inside the County
Line I discovered the boy's body
aying on the ground.”
Wanicka. the last to see Jaca:
man alive when he cropped tne
boy off. was also the firs: to find
the body According ‘to fus
a\(ness Statements he appears
to be the prime suspect in the
culling. In one instance Wamcka
said ‘| was carrying a shotgun
at thus ume and the other ‘hree
passengers in his vefiic:e sere
carrving miles”
Wanicka duscmbed ‘he area
where Jackmans Oocy 445
found “Looking at the scene
when [ first came up. there were
no other footpmnts except
Brac’s .Jackman) "
Concluding the statement,
Wanicka said, “At Uus ome we
feel that there is no doubt in our
munds that Gus was a suicide we
can find no reason that there
would be any chance of foul play
or acc:derta! snmootizrg The
scere itse:f is :moossic.e ‘or
anyone (0 43.4 °f "hat area atc
Gdrag ‘me Soy ‘here 4 ‘hcu
leaving some *ei.-‘ace sigs
(faves $4:5 "=a: acer A. .s0r
nformes UM f acae3s
dea:h Ov: OUS $:¢ a3
erm me usec
iS | aaeé emous wRa: “he
sher.s! wr 35 - ge
rackiczg sus r er
invoived. | sou.c "ave ¢7re
the scene Gf3+es ia:c ‘3
not informed :! 445 ‘he <-e-
MUNURG camp. cor 4a; . 2
forpme@ ‘ha: ste ster: 443
where
Tomorrow nore
uscrepancies wruch further
sudstantate that Wouuar
Bradley Jackman's death was
not a suicide
Charlotte
December 7,
(FL) Herald-News
State attorney withdraws
legal counsel during reporter's
grand jury testimony
D'Alessandro asks governor to appoint another state attorney -
By JEFF EVANS
Staff Writer
Stressing the need to avoid
“any possible appearance of
impropriety,” State Attorney
Joe D'Alessandro on Friday
eveni withdrew as legal
nse! for certain matters now
being — to a Charlotte
County
~y to Alessandro,
the portion from which he
stepped down referred ‘‘solely
as to matters presented Dec. 3"
f
8
statement, D’
of articles critical of
D'Alessandro’s office, has also
refused to discuss his
tesumony.
“im order to preserve the
integrity of and to insure con-
tinued confidence in the grand
jury system, so as to avoid any
possible appearance of im-
iety, | have withdrawn as
egal advisor to the grand jury
as to matters currently
being presented to it,”’ said
D'Alessandro, reading from his
Statement.
The state attorney said he
would continue to advise the
grand jury on all upelated
matters.
After Smith, who wis present
for most of the press’ con-
ference, left the room,
D'Alessandro obiasted the
reporter's stories, saying they
were “not very kind in their
description of my office.
“Those stories have touched
probably on everything and
every place in Charlotte
County,” D'Alessandro said. “!
haven't read a single thing in
any of those stories that is
positive toward the county.”
When asked if he felt Smith
had a vendetta against his of-
fice, D'Alessandro said, “I'd
rather not comment on that.”
D'Alessandro said he has
contacted the Governor's office
and requested that another
State attorney be appointed for
these matters. According to
D'Alessandro, no _ further
testimony regarding that heard
Dec. 3 can be taken until a
replacement is appointed.
D'Alessandro chuckled when
asked whether he would be
recommending a substitute to
Graham.
to what you =
vetiove, I don’ have any
in these decision," he said. *
Governor has a
follow, and he follows it.”
Graham appointed embattled
Osceola County State Attorney
Robert Eagan when
D'Alessandro stepped down
from the investigation of
suspended Charlotte County
Sheriff Glen E. . Eagan
himself is under
grand jury tigation for
alleged wrongdoings in office.
D'Alessandro met with Cir-
cuit Court Judge William
Mclver for 25 minutes and then
met with the grand jury for
more than an hour before
making his announcement.
Sarasota Herald-Tribune
December
II, 1985 ¥P. A-l
Graham Appoints Adviser
for Charlotte Jury
State Attorney From Jacksonville Is Tapped
By DAN FAGIN
Stall Wriver
The content of Smith's testimony
is secret, but Linthicum said, “I
——
Asked if he was aware of the
subject of the panel's Austin
replied: “only as as you can
" gllegations, and these are the coun-
ter-allegations,” Austin said.
“ “That's my assi
assignment - to to
the bottom line. -
= omy Sr allegations in Smith's
Continued on 16A
Gntinued from IA
nal case, agreed to teatens heagne
againsi drug +o . ter
were irlicted by federal )u-
ries, ad covered up information
concerning the shooting death of an
Alva oan whe was hunting with
Wanika
Er
WHE
jie
sit
7
:
2
=
i
|
g
jery's six-month term is set to ex-
pre Jan. 20, but the panel nay vote
© extend its term for up tod0 days
tin's been through thi so ‘many
| times. Ile knows how uw handle -he
| grand jury.”
Austin has been thestate at-or-
ney for the sprawling Jacksonvile
me area - Duval, Slay
and counties- since (969,
except for a two-year viatus. He has
served as legal advise to two state-
= grand juries.
“It was umportanito get soneone
who'd go down thee with a fresh
point of view,” Linnicum sail.
“He's somebody #ho hasot been
involved,” she sad “He's on the
other side of the sate”
Fort Myers (FL) News-Press
January 11, 1986 P. A-1
Grand jury probes
state attorney office matters
By CHUCK TOBIN
Crariotte Bureau Cmef
PUNTA GORDA — A Charlotte County
grand jury is probing matters relating to 20th
Judicial Circuit State Attorney Joseph D’A-
lessandro’s office. the jury's new adviser said
after a meeting with grand jurors Friday.
Ninth Judicial Circuit State Attorney Ed
Austin met with grand jurors Friday, the
jury's first meeting since Gov. Bob Graham
appointed Austin on Dec. 13 to replace D’A-
lessandro, who withdrew as the jury's advis-
er on the current investigation.
The gread jury met twice last ment
before Austin was appointed adviser.
After Friday's meeting, Austia said jurors |
are probing “allegations touching on Mr
D’ Alessandro’s office,” the first time an offi-
cial has binted at the subject of the jury
investigation but Austin added (hai such an
investigaticn “is not unhealthy.”
“There's not @ state attorney in the state
who hasn't had this happen,” Austin said. “To
have grand juries challenge (hose in a posi
tion of authority — there's nothing wrong
with that We re often accused of manipulat.
ing grand juries.“
“1 understand the system. 1 don'hhave
any problem with what they're 60.4." DA.
lessandro said. “Whatever the accusation is.
I'd pust he to get the aur cleared on \t.”
D Alessandro said Austin is an “excellent
prosecutor and en excetient state attorney ~
He sard he has not had contact with Ausiin
“other Man the fact that | keew he was
coming cown ©
Smith. who has eritien articles alleging
Corruption and cover-up in D’Alessundro's
office. testified for | Bour and 40 minutes
Friday A court reporter entered and left the
jury's meeting room about the same ume as
——— — ee
recorded.
Smuth testi fied for 90 minutes at the jury's
Dec. 3 meeting after he “requested of the
See JURY,
back page thus section
jury that he appear before that body.” according to
Alessandro’s letter of withdrawal tc Graham. Smith
wes lavited ond eat subpeonned to tetity, DY Alemandre
said.
After testifying Friday, Smith saic “Il would assume
that they may call me back, and | will go back if they do.”
He said Friday's meeting was “more productive than it
was the last time.“
Austin, accompanied by his assistant state attorneys
Dennis Guidi and Steonen Kunz. said he met with Smith
a EES STEERS SEIS EO FERS SY GHNTEENS Ct
10am.
The grand jurors’ terms are scheduled to expire Jan.
20, but Austin said he will file @ motion next week to
extend the jurors’ terms 90 days. The jury's activities will
be “restricted to what they have under consideration at
this time ~
Austin said he expects jurors to meet again “some-
time within the next 30 or 40 days. but we have to do some
investigative work first “ Guidi and Kunz will conduct the
investigation, Austin said.
Austin said he will not use the state attorney s office as
bis Charlotte County base, bul will set up “independent
Smith bas written stories alleging that D Alessandro s
office has withheld information from grand jurors during
investigations.
Smith eiso has written stories accusing D Alessan-
éro's office of in a coverup with Lee County
Sheriff Frank Wanicka into the 1974 shooting death of an
Alva man who had been on a hunting trip with Wanickas
family A medical examiner ruled the death @ suicide.
but Smith has said evidence exis.s proving (hat (he man
comment on any matters relating to the current grand
jury
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The following statutes and rules follow
Ped. R. Crim. P. 6(e):
Alaska Crim. R. 6(h), (1)? D.C. Court R.
Ann. 6(e); Hawaii R. of Penal P. 6(e); Ill.
Rev. Stat. ch. 38, s 112-6; Kan. Stat. Ann.
§ 22-3012; Mass. R. Crim. P. 5(d); Mont.
6(e); Vt. R. Crim. P. 6(£)3 V.I. Code Ann.
tit. 5, § 6(e); Va. Code R. 3A:5(b); W.Va.
eee P. 6(e) (2); Wyo. Stat. §§ 7-5-307,
The following statutes and rules are
ee as operating similarly to Fed.
R. Crim. P. 6(e):
Minn. R. Crim. P. 18.08; Del. Code Ann. tit.
ll § 1273; S.D. Cod. L. Ann. 23A-5-16; N.Y.
Penal L. § 215.70.
The following statutes and rules are
silent as to secrecy requirements on grand
jury witnesses:
Ark. Stat. Ann. § 16-85-514; Cal. Penal Code
§ 924.2; Ga. Code Ann. § 15-12-68; Idaho
Crim. R. 6(e); Iowa Code § 813.2, R. 3; Me.
Rev. Stat. Ann. tit. 15, § 1252; Md. Crim.
R. 8-213; Neb. Rev. Stat. §§ 29-1404 to
~1415; N.H. Rev. Stat. Ann. § 600:3, 4; Ohio
R. Crim. P. 6(e); Okla. Stat. tit. 21, §§
582, 583; Or. Rev. Stat. § 132.060, 100;
Penn. R. Crim. P. 256-257; Tenn. R. Crim. P.
6(k) (1); Wis. Stat. § 756.20.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.