In re Grand Jury

• Decision Date: 13 April 1999
• Docket Number: No. 98-KK-2277.,98-KK-2277.
• Citation: 737 So.2d 1
• Parties: In re GRAND JURY.
• Court: Louisiana Supreme Court

737 So.2d 1

In re GRAND JURY.

No. 98-KK-2277.

Supreme Court of Louisiana.

April 13, 1999.

Richard P. Ieoyoub, Attorney General, Douglas P. Moreau, District Attorney, John A. Cannon, for Applicant.

Michael S. Fawer, Covington, Lewis O. Unglesby, Karl J. Koch, Charles S. McCowan, Jr., Baton Rouge, Arthur A. Lemann, III, for Respondent.

JOHNSON, Justice.¹

We granted certiorari in this case to determine whether state grand jury materials may be provided to federal authorities without a subpoena or contradictory hearing. The trial court signed an order presented by East Baton Rouge Parish District Attorney Doug Moreau releasing the transcripts and/or audio tapes of the East Baton Rouge Parish grand jury to Mr. Eddie Jordan, United States Attorney for the Eastern District of Louisiana. Following release of the materials to federal authorities, Plaintiffs filed a motion in the district court for hearing, reconsideration and recall of the 1997 order releasing the grand jury materials, which was denied. The Plaintiffs then applied for writs to the First Circuit Court of Appeal. The Court of Appeal granted the writ in part and denied in part. In re Grand Jury, 98-1597 (La.App. 1st Cir. 7/27/98) (unpublished writ ruling). The court found that a party seeking the release of grand jury materials must prove that the need for disclosure outweighs the constitutional mandate of grand jury secrecy and show with particularity a compelling necessity for the release. The court vacated the order releasing the grand jury materials and remanded the matter to the trial court for a contradictory hearing to establish the compelling necessity for releasing the grand jury materials. The East Baton Rouge Parish District Attorney sought review of the Court of Appeal's decision and we granted certiorari. In Re Grand Jury, 98-2277 (La.9/16/98), 721 So.2d 478. For reasons discussed below, we affirm the Court of Appeal's decision and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY

An East Baton Rouge Parish grand jury began investigating the licensing process for Louisiana riverboat gambling operators and other related matters in 1993. On July 25, 1997, United States Attorney Eddie Jordan sent a letter to East Baton Rouge Parish District Attorney Doug Moreau requesting transcripts of all witnesses who testified before any state grand juries in East Baton Rouge Parish regarding, either directly or indirectly, the licensing of riverboat casinos, including but not limited to appearances by former Governor Edwin W. Edwards and his son Stephen Edwards. In response to the request, Mr. Moreau prepared a motion and order for release of the grand jury transcripts and/or audio tapes to be signed by the duty judge in the Nineteenth Judicial District Court. Mr. Moreau was advised that the duty judge for the week was out of the courthouse at the time and that Judge Timothy Kelley was handling duty matters in his absence. The motion and order were presented to Judge Kelly for review. After reviewing the motion for a few minutes, Judge Kelly signed the order releasing the transcripts and/or audio tapes of the East Baton Rouge Parish grand jury to the United States District Court for the Eastern District grand jury and United States Attorney Eddie Jordan.² The federal authorities were informed that the order releasing the transcripts and/or audio tapes had been signed. The District Attorney then gathered and reproduced the materials, which were picked up by FBI agents. The signed order was not filed into the grand jury records, but was held by the District Attorney.

The subjects of the East Baton Rouge Parish grand jury, former Governor Edwin Edwards and his son, Stephen Edwards, learned of the transfer of the materials in April, 1998. These subjects requested a fact-finding inquiry into the transfer of the grand jury information to federal authorities and filed a motion for appropriate relief on April 28, 1998. This request was denied by Judge Mike Erwin on April 29, 1998. At this time, the District Attorney presented the signed order releasing the material to the federal authorities. Judge Erwin ruled that no such motion was recognized by law and that the release of the materials complained of had been authorized by Judge Kelley's order. The subjects then filed a motion for hearing, reconsideration, and recall of the 1997 order releasing the grand jury materials in Judge Timothy Kelley's Court. This motion was denied by Judge Kelley. He determined that releasing the grand jury material was consistent with the spirit of the Louisiana Code of Criminal Procedure and analogous to the procedure set out in La.Code Crim. Proc. art. 434(B). Further, the release of the material directly to another grand jury ensured that the secrecy of the state grand jury would be maintained. The First Circuit Court of Appeal vacated the trial court's order releasing the state grand jury materials to the federal authorities finding that a release of grand jury materials required a showing of compelling necessity for the materials at a contradictory hearing. The correctness of this determination is now before the Court.

DISCUSSION

Louisiana Constitution Article V, Section 34 in part provides that the secrecy of grand jury "proceedings including the identity of witnesses, shall be provided by law." As such, La.Code Crim. Proc. art. 434 requires members of the grand jury, others present at grand jury meetings, and those having confidential access to grand jury information to keep secret the witnesses' testimony and all other matters occurring during the grand jury meetings.³ In State v. Trosclair, 443 So.2d 1098 (La. 1983), which involved a request for the production of grand jury testimony by a defendant charged with bribery of sports participants, this court recognized the importance of grand jury secrecy and the reasons stated for maintaining grand jury secrecy.

It is a long established policy that the secrecy of grand jury proceedings should be carefully maintained. Many reasons for this have been stated. Secrecy helps to prevent the escape of prospective indictees by providing no forewarning to them of the investigation in progress; it insures that the grand jury investigation can proceed freely by protecting the grand jurors from outside influences and threats of reprisal; it serves to prevent the subordination of perjury and tampering of witnesses by targets of the investigation; it promotes free and open disclosure of information by witnesses without fear of retaliation; and finally, it acts as a shield by protecting innocent people under investigation from the injury to their reputations that could be caused by the disclosure of baseless accusations. However, the secrecy of grand jury proceedings is not absolute. The Supreme Court has stated that "in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings."

Trosclair, 443 So.2d 1098, 1102 (citations omitted).

In determining whether to permit discovery of grand jury transcripts, this Court has followed the same approach as the federal courts. See State v. Trosclair, 443 So.2d 1098 (La.1983)

; State v. Ates, 418 So.2d 1326 (La.1982); State v. Peters, 406 So.2d 189 (La.1981); State v. Martin, 376 So.2d 300 (La.1979). The grand jury occupies a high place in the federal system of criminal law—so much so that it is enshrined in the Constitution. United States v. Sells Engineering Inc., 463 U.S. 418, 423, 103 S.Ct. 3133, 3137, 77 L.Ed.2d 743 (1983); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959); Costello v. United States, 350 U.S. 359, 361-362, 76 S.Ct. 406, 407-408, 100 L.Ed. 397 (1956).

It serves the "dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). Concern for this dual function underlies the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). The United States Supreme Court explained this long-established policy in Douglas Oil Co. v. Petrol Stops Northwest:

We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. For all these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury.

Douglas Oil Co., 441 U.S. 211, 218-219, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979) (footnotes and citations omitted).

The policy of maintaining the secrecy of grand jury proceedings has been codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Grand jurors, government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Rule 6(e)(2). Six exceptions to this general rule forbidding disclosure are set...