Grand Jury Proceedings, In re, 86-1787

Citation810 F.2d 580
Decision Date06 February 1987
Docket NumberNo. 86-1787,86-1787
Parties, 22 Fed. R. Evid. Serv. 682, 13 Media L. Rep. 2049 In re GRAND JURY PROCEEDINGS. STORER COMMUNICATIONS, INC., and Bradley M. Stone, Petitioners-Appellants, v. Wayne County Circuit Court Judge William J. GIOVAN; Wayne County Prosecuting Attorney John D. O'Hair; and Wayne County Sheriff Robert Ficano, Respondents- Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Robert W. Powell, Henry W. Saad (argued), Zan M. Nicolli, Dickinson, Wright, Moon, Van Dusen and Freeman, Detroit, Mich., for petitioners-appellants.

Patrick Foley, Wayne Co. Pros. Atty., Don W. Atkins (argued), Detroit, Mich., for respondents-appellees.

Before WELLFORD, GUY and NORRIS, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

Petitioner Bradley Stone, a television reporter, appeals from the district court's denial of a writ of habeas corpus. The writ had been sought on the ground that Stone would be held in custody in violation of the United States Constitution if an order of a Michigan court, holding him in contempt for failing to comply with a subpoena from a county grand jury to give evidence, were enforced as scheduled. The first question raised by the appeal is whether Stone was entitled to a privilege under the first amendment to the United States Constitution to withhold information sought by a grand jury. In addition, we are asked to determine whether he was denied equal protection of the laws, in violation of the fourteenth amendment, in view of the determination by Michigan courts that the Michigan legislature failed to include reporters for broadcast media within the coverage of a statute 1 which provides that communications between newspaper reporters and their informants are privileged and confidential.

Stone was found in contempt by the Wayne County Circuit Court, as the result of his failure to comply with a subpoena duces tecum issued by the grand jury and directing him to produce video tapes compiled in the course of his reporting on the activities of Detroit youth gangs. The video tapes were sought, for identification purposes, in connection with an investigation into the murder of a state police officer, allegedly at the hands of two gang members who may have been present during Stone's filming of the "Be Like Boys" or "Be Light Gang" in July 1985, one month before the slaying.

Stone urged the state courts to set aside the subpoena and, later, the contempt judgment, on the state ground that, as a matter of statutory construction, he should be included within the class of news reporters entitled to claim the statutory "shield," and upon the federal grounds that, under the first amendment, 2 he possessed a qualified "federal common law" privilege to refrain from disclosing the information, and that to deny him the benefit of the statute was to deny him equal protection of the laws as contemplated by the fourteenth amendment. 3 Having been unsuccessful in the trial court and upon appeal to the Michigan Court of Appeals and the Michigan Supreme Court, Stone and his employer, Storer Communications, Inc., sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan, on the federal grounds. It appears that appellant exhausted his remedies in the state courts of Michigan, as required by 28 U.S.C. Sec. 2254(b), in view of his having presented those courts with a fair opportunity to rule on his federal claims; there was no avenue for review of the federal constitutional contentions remaining in the state court system when he filed for a writ of habeas corpus. See, e.g., Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); County Court of Ulster County v. Allen, 442 U.S. 140, 149 n. 7, 99 S.Ct. 2213, 2220 n. 7, 60 L.Ed.2d 777 (1979); Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Mathews v. Marshall, 754 F.2d 158 (6th Cir.1985), rev'd on other grounds sub nom. Morris v. Mathews, --- U.S. ----, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). The district court dismissed Storer Communications as a party since it was not threatened by state custody, and agreeing with the state courts that "no violation of the First or Fourteenth Amendments was committed" denied the writ.

I.

Stone went to Hart Plaza in downtown Detroit on July 12, 1985, with the hope of encountering members of the gang. When he observed some, he began filming them, but discontinued after it became apparent that the film taken would be of little use. About thirty to sixty seconds of film was taken during this initial interval. In an effort to obtain candid shots of gang members and to conduct on-camera interviews about their activities, he asked them to enter an isolated area of the Hart Plaza, away from the public. As a condition of filming, Stone agreed not to broadcast or disclose to anyone the portion of the film already taken, in which the faces of gang members could be seen. 4 He also promised to do all future filming in the silhouette. There were, reportedly, certain threats directed at Stone that, if he aired the film showing their faces, he would be subjected to bodily harm.

Later, realizing that he did not have enough film to fill out that gang's episode of the television series, Stone returned to Hart Plaza on July 19, by prearrangement with some of the gang's members. On this occasion, he again encountered members of the gang, but filmed only those portions of their bodies below the neck. Stone indicated that all but a few seconds of the July 19 footage was used in the television broadcast series, which was aired on five successive evenings beginning July 29, 1985.

Several of the gang's members later revealed to the police detective investigating the murder that, on July 12, when the initial filming occurred, the assailants of the murdered police officer were present. One gang member furnished police with the identity of the youth who shot the trooper. However, because their informant will not testify, police are unable to proceed without further evidence. Several eyewitnesses told investigators that they could identify the assailants if provided with photographs. Not only is a photograph of the triggerman not available, but, most significantly, he has altered his appearance so that a current photograph or line-up would likely not lead to an identification. Accordingly, investigators contend the film would be the most reliable means for identification.

On September 27, 1985, grand jury subpoenas were served on Stone's employer for an appearance on October 3. A motion to quash the subpoena was filed by Storer Broadcasting. The trial court heard arguments on that motion, and the testimony of the investigating detective and Stone in closed session. On January 27, 1986, the court filed a lengthy decision denying the motion to quash. The trial judge determined that Michigan's statutory news reporters' privilege does not include television news reporters, and ruled that Stone had no constitutional privilege to refuse to divulge to the grand jury the material sought. In response to Stone's continuing refusal to relinquish the subpoenaed material, the trial judge found him in civil contempt, and further ordered that he be confined in the custody of the Sheriff of Wayne County until such time as he either complied with the subpoena, or until expiration of the term of the grand jury on January 9, 1987. Appellant was released from custody pursuant to an order of this court, staying enforcement of the contempt order pending final disposition of this appeal.

II.

In contending that, as a news reporter, he was entitled to assert a "privilege grounded in the First Amendment," Stone would have us restructure the holding of the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), since the majority opinion in that case rejected the existence of such a first amendment testimonial privilege:

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process.... [W]e perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.

[T]he Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task.

408 U.S. at 689-91, 92 S.Ct. at 2661-62 (footnote omitted).

Stone insists, however, that when his reading of Justice Powell's concurring opinion is superimposed upon Justice White's majority decision, the government is required to make "a clear and convincing showing of relevancy, essentiality, and exhaustion of non-media sources" for obtaining the information before he can be compelled to testify. In arguing that this amounts to a "qualified privilege," Stone relies heavily upon the dissenting opinion of three justices in Branzburg, and upon opinions from other circuit courts.

Because we conclude that acceptance of the position urged upon us by Stone would be tantamount to our substituting, as the holding of Branzburg, the dissent written by Justice Stewart (joined by Justices Brennan and Marshall) for the...

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