In re Grand Jury Witnesses

• Decision Date: 08 September 1970
• Docket Number: Misc. No. 10410.
• Citation: 322 F. Supp. 573
• Parties: In re GRAND JURY WITNESSES Sherrie Bursey and Brenda Joyce Presley.
• Court: U.S. District Court — Northern District of California

322 F. Supp. 573

In re GRAND JURY WITNESSES Sherrie Bursey and Brenda Joyce Presley.

Misc. No. 10410.

United States District Court, N. D. California.

September 8, 1970.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Jerome K. Heilbron, Victor C. Woerheide, Brandon Alvey, Sp. Attys., U. S. Dept. of Justice, Washington, D. C., for the United States.

Garry, Dreyfus, McTernan & Brotsky, David E. Pesonen, San Francisco, Cal., for witnesses Bursey and Presley.

MEMORANDUM OPINION AND ORDER

ZIRPOLI, District Judge.

This matter comes before the Court on application of the United States Attorney for the Northern District of California to compel respondents Sherrie Bursey and Brenda Joyce Presley, who appeared as witnesses before the Grand Jury for this District, to answer certain questions propounded to them by the Grand Jury. A copy of the pertinent testimony before the Grand Jury at its session of June 4, 1970, has been lodged with the Court pursuant to an order of limited disclosure entered by the Court.

The history of this matter reflects that respondents, after approval of applications for grants of immunity given by the Attorney General of the United States and upon a showing of a necessary public interest made by the United States Attorney and a finding by the Court that the applications were proper and should be allowed, were ordered by the Court to appear before the Grand Jury on May 13, 1970, to answer all questions propounded, save those specifically excepted under the Court's order. The order of the Court granted immunity to respondents in accordance with the provisions of Title 18 U.S.C. Section 2514.¹

Thereafter, respondents claimed and established to the satisfaction of the Court that they were professional journalists in the employ of the Black Panther Newspaper, a weekly newspaper of general and national circulation. On that showing, the Court granted them a protective order entered on May 20, 1970, which provided that in their appearance before the Grand Jury they shall not be required to reveal confidential information received, developed or maintained by them as professional journalists; that they shall not be required to answer questions concerning statements made to them or information given them by confidential news sources, unless such statements or information were given to them for publication or public disclosure; that they shall be permitted to consult with their counsel at any time they wish during the course of their appearance before the Grand Jury; and that the Court will entertain a motion for modification of the order upon a showing by the Government of a compelling and overriding national interest in requiring the testimony of respondents which cannot be served by any alternative means. This so-called "journalist's privilege" was accorded them because the granting of immunity which is intended to protect a witness against self-incrimination and the right not to be prosecuted on account of his testimony does not carry with it a deprivation of the witness' rights to free speech, press and association.

The Government in support of its present motion to compel the respondents to answer questions propounded to them at the June 4th meeting of the Grand Jury has presented affidavits and other documentary evidence which the Government asserts demonstrate a compelling and overriding national interest which outweighs the individual First Amendment rights of respondents and any journalist's privilege in the area of free press to which they may be entitled.

The questions propounded to the witnesses, fall into two categories: those that do not impinge upon individual constitutional rights and those that impinge, or arguably could be said to impinge, upon such constitutional rights. As to the first category, the respondents must, of course, answer all questions falling therein. As to the second category, the Court is once again faced with the delicate and difficult task of resolving a conflict between the governmental or national interest of grand jury investigation of those engaged in, or substantially connected with those engaged in, criminal activities and the individual constitutional rights of witnesses. This calls for a weighing of the circumstances reflected in the record before the Court and an appraisal of the substantiality of the reasons advanced in support of the regulation of the free enjoyment of those rights.

In making its appraisal of the record and the reasons advanced in support of the Government's motion, the Court in no way intimates that it has any views as to any alleged subversive or criminal activities of the Black Panther Party or its Central Committee or any member or members of its newspaper staff. These are the very matters which are under investigation by the Grand Jury and they do not properly come before the Court for determination until the Grand Jury upon a showing of probable cause that a crime has been committed returns an indictment.

All that the Court does is to evaluate the record to ascertain whether the facts and circumstances relied upon by the Government, though in greater part hearsay in character,² relate to a compelling and overriding national interest which so outweighs the individual constitutional rights of the respondents as to require them to answer all relevant questions consonant with the broad powers of the Grand Jury.

An evaluation of the record brings into play the nature and function of Grand Jury investigations; the nature and gravity of the criminal activity under investigation; and, as above indicated, the relevancy of the inquiries made to such criminal activity.

The Grand Jury, under the federal scheme, is an indispensable element in the administration of criminal justice. Under the Fifth Amendment to the Constitution, indictment by a Grand Jury is a matter of right in all felony cases. Hence, the facts relating to any serious offense must be brought to the attention of a grand jury preliminary to the initiation of prosecution for such offense by the return of an indictment. "The functions of that institution grand jury and its constitutional prerogatives are rooted in long centuries of Anglo-American history." Hannah v. Larche, 363 U.S. 420, 489, 490, 80 S.Ct. 1502, 1544, 4 L.Ed.2d 1307 (1959).

In performing its constitutionally imposed functions, which affect the rights and interests of both the innocent and the culpable against whom allegations may be made, the Grand Jury has broad powers and it has long been settled "that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned." Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1918).

In calling a person as a witness, the grand jury has never been required to furnish him a program defining the crimes to be investigated or the person or persons against whom an accusation is sought. As observed in Blair v. United States, supra, at 282, 39 S.Ct. at 471:

"He the witness is not entitled to set limits to the investigation that the grand jury may conduct * * * It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labor, not at the beginning, Hendricks v. United States, 223 U.S. 178, 184 32 S.Ct. 313, 56 L.Ed. 394."

Earlier in Hale v. Hinkel, 201 U.S. 43, at 65, 26 S.Ct. 370, at 375, 50 L.Ed. 652 (1905), the Supreme Court said: "It is impossible to conceive that * * * the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted."

A grand jury "investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed." United States v. Stone, 429 F.2d 138 (2nd Cir., decided July 7, 1970). This function was described by the Supreme Court in Wood v. Georgia, 370 U.S....