B-193697 L/M, AUG 7, 1980

B-193697 L/M, AUG 7, 1980

SUBJECT: CLOSURE OF ANCILLARY GRAND JURY PROCEEDINGS (FILE B-193697; CODE 188450)

GROUP DIRECTOR, CCD - JOHN CLS:

SUGGESTED REPORT LANGUAGE THAT EXPANDS ON THE DRAFT'S DISCUSSION OF THE CIRCUMSTANCES THAT WARRANT CLOSURE OF PREINDICTMENT PROCEEDINGS IS ATTACHED. THE SUPREME COURT'S RECENT DECISION IN RICHMOND NEWSPAPER'S INC. V. VIRGINIA, 48 U.S.L.W. 5008 (1980), MAKES THIS EXPANDED DISCUSSION OF THE CLOSURE ISSUE NECESSARY BECAUSE IT CLARIFIED AND DISTINGUISHED GANNETT CO. V. DE PASQUALE COUNTY JUDGE OF SENECA COUNTY, NEW YORK, 47 U.S.L.W. 4902 (1979), A CASE ON WHICH THE DRAFT REPORT RELIED HEAVILY.

AS CLARIFIED BY RICHMOND, GANNETT'S CLOSURE CRITERIA APPLIES TO PRETRIAL PROCEEDINGS; RICHMOND NEWSPAPERS APPLIES TO CLOSURE OF THE TRIAL ITSELF, AND ESTABLISHES A RULE THAT CRIMINAL TRIALS ARE PRESUMPTIVELY OPEN TO THE PUBLIC AND THE PRESS AS A MATTER OF CONSTITUTIONAL LAW. UNDER RICHMOND, PREINDICTMENT PROCEEDINGS INVOLVING THE ADJUDICATION AND IMPOSITION OF CONTEMPT ARE ARGUABLY ON THE SAME FOOTING AS A CRIMINAL TRIAL INSOFAR AS CLOSURE IS CONCERNED. OTHER ANCILLARY PROCEEDINGS, SUCH AS HEARINGS ON A MOTION TO QUASH, WITNESS IMMUNITY, AND MOTIONS TO COMPEL TESTIMONY, ARE MORE ANALOGOUS TO THE PRETRIAL PROCEEDINGS THAT WERE SUBJECT TO CLOSURE UNDER GANNETT.

GRAND JURY REPORT

SUBSTITUTE FOR PARAGRAPHS 3, 4 AND 5 ON PAGE 10, AND PARAGRAPHS 1 AND 2, PAGE 11.

THE DIFFERING VIEWS ON THE PROPRIETY OF CLOSURE FOR PROCEEDINGS ANCILLARY TO GRAND JURY PROCEEDINGS NEED TO BE RECONCILED, PREFERABLY THROUGH AN AMENDMENT TO RULE 6(E) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. ALSO INVOLVED IN THE CLOSURE ISSUE, HOWEVER, IS A CLASH BETWEEN THE INTEREST IN PRESERVING THE SECRECY OF GRAND JURY PROCEEDINGS, AND THE INTEREST, DERIVING FROM THE FIRST AND SIXTH AMENDMENTS TO THE CONSTITUTION, IN PRESERVING THE PUBLIC NATURE OF COURT PROCEEDINGS. FROM A CONSTITUTIONAL STANDPOINT, USEFUL GUIDANCE ON THE PROPRIETY OF CLOSURE IS PROVIDED BY GANNETT CO. V. DE PASQUALE COUNTY JUDGE OF SENECA COUNTY, NEW YORK, 47 U.S.L.W. 4902 (1979), AND RICHMOND NEWSPAPERS, INC. V. VIRGINIA, 48 U.S.L.W. 5008 (1980), THE TWO MOST RECENT SUPREME COURT DECISIONS ON CLOSING JUDICIAL PROCEEDINGS.

IN GANNETT, THE SUPREME COURT UPHELD A LOWER COURT'S ORDER TO CLOSE A PRETRIAL EVIDENTIARY SUPPRESSION HEARING. ALL PARTIES TO THE HEARING AGREED TO CLOSURE. THE GANNETT CO., A NEWSPAPER PUBLISHER, APPEALED THE TRIAL COURT'S CLOSURE ORDER, CLAIMING THAT SUCH HEARINGS MUST BE OPEN TO THE PUBLIC AND THE PRESS UNDER THE FIRST AND SIXTH AMENDMENTS TO THE CONSTITUTION.

THE SUPREME COURT DISAGREED, EXPLAINING THAT ALTHOUGH PUBLIC PROCEEDINGS ARE THE NORM IN THE AMERICAN JUDICIAL SYSTEM, A DEFENDANT'S RIGHT TO AN OPEN PROCEEDING IS BASED ON THE SIXTH AMENDMENT, WHOSE MAIN PURPOSE IS TO PROTECT AN ACCUSED FROM PROSECUTORIAL AND JUDICIAL ABUSES. THE SUPREME COURT STATED THAT THE SIXTH AMENDMENT'S GUARANTEE TO THE ACCUSED OF A "PUBLIC TRIAL" FOR "CRIMINAL PROSECUTIONS" GAVE NEITHER THE PUBLIC NOR THE PRESS AN ENFORCEABLE RIGHT OF ACCESS TO PRETRIAL HEARINGS. THE COURT CONCLUDED THAT IF THE TRIAL JUDGE AND ALL PARTIES TO THE PRETRIAL HEARING AGREE, THE HEARING MAY BE CLOSED WHEN NECESSARY TO ASSURE A FAIR HEARING AND TO AVOID PREJUDICIAL PUBLICITY.

THE QUESTION WHETHER GANNETT APPLIED TO CLOSURE OF THE TRIAL ITSELF REACHED THE COURT IN RICHMOND NEWSPAPERS V. VIRGINIA, A CASE WHERE THE DEFENDANT, THE PROSECUTION, AND TRIAL JUDGE AGREED TO CLOSURE OF A CRIMINAL TRIAL.

IN RICHMOND, THE COURT EXPLAINED THAT GANNETT DEALT WITH A PRETRIAL HEARING, NOT WITH CLOSURE OF THE TRIAL ITSELF. THE COURT FOUND IMPLICIT IN THE FIRST AMENDMENT A RIGHT OF THE PUBLIC AND THE PRESS TO ATTEND CRIMINAL TRIALS, AND NOTED THAT, IN CONTRAST TO THE PRETRIAL PROCEEDING IN GANNETT, THERE USUALLY EXIST IN THE CONTEXT OF A CRIMINAL TRIAL ALTERNATIVES TO CLOSURE. EXCLUSION OF TRIAL WITNESSES FROM THE COURTROOM AND SEQUESTRATION OF JURORS WERE CITED AS EXAMPLES. THE COURT CONCLUDED THAT ABSENT AN "OVERRIDING INTEREST" ARTICULATED IN THE FINDINGS, THE TRIAL OF A CRIMINAL CASE IS PRESUMPTIVELY OPEN TO THE PUBLIC AND THE PRESS. WAIVER BY THE ACCUSED OF HIS SIXTH AMENDMENT RIGHT TO A PUBLIC PROCEEDING WOULD NOT CHANGE THIS RESULT.

AS APPLIED TO ANCILLARY GRAND JURY PROCEEDINGS INVOLVING A MOTION TO QUASH A SUBPOENA, WITNESS IMMUNITY, MOTIONS TO COMPEL TESTIMONY, AND THE LIKE, GANNETT, AS CLARIFIED BY RICHMOND, WOULD SEEM TO PROVIDE A BASIS FOR CLOSURE IF THE WITNESS AFFIRMATIVELY CONSENTS, AND THE COURT, WITHOUT OBJECTION FROM THE PROSECUTION, ORDERS CLOSURE UPON A CASE BY CASE DETERMINATION THAT CLOSURE IS NECESSARY TO AVOID PREJUDICE OR HARM TO THE WITNESS (OR OTHERS), OR TO ENSURE THE INTEGRITY OF THE WITNESS' TESTIMONY BEFORE THE GRAND JURY.

THE CRITERIA FOR CLOSURE OF OTHER ANCILLARY PROCEEDINGS, PRINCIPALLY THOSE INVOLVING AN ADJUDICATION OF CONTEMPT AGAINST A WITNESS, ARE LESS CLEAR. FN1 HOWEVER, THERE IS A SUGGESTION IN RICHMOND THAT THE CRITERIA FOR CLOSING A CONTEMPT PROCEEDING ARE ANALOGOUS TO THE CRITERIA FOR CLOSING CRIMINAL TRIALS, THE LATTER BEING PRESUMPTIVELY OPEN TO THE PUBLIC AND THE PRESS. TO THE EXTENT THIS CRITERIA MAY APPLY TO CONTEMPT PROCEEDINGS, NEITHER THE CONSENT OF THE WITNESS TO CLOSURE NOR A GENERAL INTEREST IN PRESERVING GRAND JURY SECRECY WOULD IN ITSELF OVERCOME THE PRESUMPTION THAT THE HEARING BE OPEN.

WE HAVE NOT ADDRESSED THE ISSUE WHETHER CLOSURE OF ANCILLARY PROCEEDINGS OVER THE WITNESS' OBJECTION WOULD BE CONSTITUTIONALLY PERMISSIBLE UNDER ANY CIRCUMSTANCE. EVEN IF NONCONSENSUAL CLOSURES WERE PERMISSIBLE, HOWEVER, LEGITIMATE QUESTIONS COULD BE RAISED WHETHER CLOSURE OVER THE WITNESS' OBJECTION WOULD SERVE ANY PRACTICAL OR USEFUL PURPOSE, SINCE WITNESSES CLEARLY REMAIN FREE UNDER RULE 6(E) TO DISCLOSE THEIR IDENTITY, THE FACT THAT THEY HAVE BEEN SUBPOENAED, THE CONTENTS OF THEIR TESTIMONY, AND ANY OTHER OCCURENCE THEY MAY HAVE OBSERVED BEFORE THE GRAND JURY.

FN1 THE RIGHT TO A "PUBLIC TRIAL" IS EXPLICITLY GUARANTEED BY THE SIXTH AMENDMENT ONLY FOR "CRIMINAL PROSECUTIONS." ALTHOUGH CONTEMPT PROCEEDINGS ARE NOT CRIMINAL PROSECUTIONS IN THE CONSTITUTIONAL SENSE, THEY, LIKE A CRIMINAL TRIAL, MAY HAVE THE NATURAL AND IMMEDIATE CONSEQUENCE OF INCARCERATION. THE PLURALITY OPINION IN RICHMOND REFERRED TO AN EARLIER CASE INVOLVING A WITNESS CONTEMPT PROCEEDING TO ILLUSTRATE THAT, EVEN IN THE ABSENCE OF AN EXPLICIT CONSTITUTIONAL PROVISION, DUE PROCESS DEMANDS APPROPRIATE REGARD FOR THE REQUIREMENTS OF A PUBLIC PROCEEDING IN CASES OF CONTEMPT. SEE 48 U.S.L.W. AT 5013, CITING WITH APPROVAL, LEVINE V. UNITED STATES, 362 U.S. 611 (1960).