IN RE INVESTIGATION BEFORE APRIL 1975 GRAND JURY

• Decision Date: 13 November 1975
• Docket Number: Misc. No. 75-193.
• Citation: 403 F. Supp. 1176
• Parties: In re INVESTIGATION BEFORE the APRIL 1975 GRAND JURY.
• Court: U.S. District Court — District of Columbia

403 F. Supp. 1176

In re INVESTIGATION BEFORE the APRIL 1975 GRAND JURY.

Misc. No. 75-193.

United States District Court, District of Columbia.

November 13, 1975.

Earl J. Silbert, U. S. Atty., Carl S. Rauh, Principal Asst. U. S. Atty., Brian W. Shaughnessy, Robert R. Chapman, Asst. U. S. Attys., Washington, D. C., for the United States.

Sol Z. Rosen, Washington, D. C.

MEMORANDUM AND ORDER

WILLIAM B. JONES, Chief Judge.

The motion presently before this Court presents an issue which to this Court's knowledge has not been decided by any federal court. The government has moved for an order requiring certain witnesses appearing before a grand jury to have separate counsel.

I. FACTS

At midnight on September 30, 1975, Local 6 of the Newspaper and Graphics Communications Union, which represents pressmen working at the Washington Post Company, went on strike against the Post. During the early morning hours of October 1, 1975, serious and substantial damage, now estimated in excess of one million dollars, was inflicted on the press machinery at the Post, and the foreman of the pressroom was beaten. It appears that there were over one hundred pressmen of Local 6 in the pressroom at the time the damage was sustained. Government's Motion at 2.

On October 6, 1975, a federal grand jury commenced an investigation into the October 1 occurrences at the Post. The law firm of Barr and Peer, which represents Local 6, retained the services of Sol Z. Rosen, Esquire, for the purpose of representing the members of Local 6 in criminal matters arising out of the October 1 occurrences. Transcript at 3.¹

Mr. Rosen represents himself to be "counsel for the witnesses." Opposition to Government's Motion at 1. At oral argument, he further stated that at a general meeting of the pressmen, he advised them as a group of their rights vis-a-vis the grand jury investigation and of the nature of the investigation. Transcript at 3-4. He did not encourage them to talk to or remain silent before the grand jury. Transcript at 3-4. He did inform them of the possibility that each pressman present during the October 1 occurrences could be found guilty as conspirators, regardless of any actual participation. Transcript at 5. He also distributed xerox copies of instructions to each member regarding invocation of the privilege against self-incrimination. Transcript at 5. The only indication given by Mr. Rosen to the pressmen that a grant of immunity was possible was a "caveat" found on the xerox sheet which informed then that they need not testify "unless given complete or transactional immunity." Mr. Rosen then instructed them that if granted immunity, they should "obey the law." Transcript at 5. Mr. Rosen stated that his main role as counsel was to advise the union witnesses of their legal rights as the investigation progressed. For ethical reasons, he did not interview the witnesses personally (Transcript at 4), which would have allowed him to determine each witness' knowledge, possible criminal liability, or possible chances for a grant of immunity from the government. In sum, Mr. Rosen did not provide the witnesses with the detailed, informed, substantive advice they otherwise would have received.

The Grand Jury subpoenaed twenty-one members of Local 6 who were working in the pressroom during the morning hours of October 1. Of the twenty-one, all but two invoked the Fifth Amendment privilege against self-incrimination when questioned about the events at the Post. Government's Motion at 2. According to the United States Attorney, many of the witnesses asserted the privilege when questioned about their age, marital status, number of children, name of parents, and relationship with their attorney. Government's Motion at 2. Many read from the xerox sheet of paper which had been distributed by Mr. Rosen. The two witnesses who testified without invoking the Fifth Amendment stated that they had not seen anything. Government's Motion at 2-3.

II. MERITS

As both the government and Mr. Rosen admit, the government cannot fruitfully investigate the occurrences at the Post while the subpoenaed witnesses as a group continue to invoke the privilege against self-incrimination in response to all questions of the grand jury. Nor can the government determine which witnesses should be granted immunity from prosecution while all witnesses refuse to give any indication of the extent of their participation—if any—in the October 1 occurrences. The "stonewall" which has been erected can at least partially be attributed to the multiple representation of the witnesses by Mr. Rosen. Certainly none of the witnesses could be compelled, in the absence of a grant of immunity pursuant to 18 U.S.C. § 6001 et seq., to provide the grand jury with self-incriminatory information. A further impediment to the functioning of the grand jury, however, has been erected by Mr. Rosen's multiple representation of all the witnesses.

As noted earlier, Mr. Rosen has correctly stated that he cannot speak individually to each of his clients about that client's knowledge of or role in the occurrences at the Post. This situation has led to two untoward results. First, Mr. Rosen cannot ethically advise one witness as to his best course of action, because inevitably such advice would injure another of his clients. For example, Mr. Rosen could not advise witness A, a marginal participant, to testify in exchange for a grant of immunity, that witness B directed the sabotaging of the Post presses. Thus, none of the witnesses has any idea as to his best course of action and as a result, none has approached the prosecutor to discuss a possible grant of immunity. For Mr. Rosen to state that the government has shown no prejudice from its inability to discuss possible immunity (Transcript at 9-10) begs the question. Since they have not received the advice they otherwise would receive, such failure is understandable if not expected. Second, the inability of Mr. Rosen to discuss each witness' situation individually has led to an unnecessary and uninformed categorical invocation of the privilege against self-incrimination by each pressman, regardless of whether the privilege is applicable. With proper representation, each witness could knowledgeably answer certain non-incriminatory questions which would either lead the prosecutor to evidence incriminatory of other pressmen, or permit the prosecutor to assess whether the responding witness should be granted immunity.

The necessarily inadequate representation offered by Mr. Rosen, therefore, has stifled the grand jury investigation by leaving both the witnesses and the prosecutor incapable of determining their most favorable courses of action. Separate representation, on the other hand, would ensure that each of the witnesses could make a fully-informed and intelligent assessment about whether to cooperate with the prosecutor, and that the prosecutor could intelligently determine which witnesses should be encouraged to cooperate through offers of grants of immunity. The Grand Jury, to be sure, would remain subject to the traditional restraints on its powers, but it would nonetheless begin to function normally.

Furthermore, Mr. Rosen's position must inevitably lead to a breach of the secrecy of the grand jury proceedings. If one witness informs Mr. Rosen of the substance of his testimony before the grand jury, Mr. Rosen ethically would be compelled to inform other clients of that testimony if detrimental to them. Moreover, a civil suit brought by the Washington Post Company against the union, which retains Mr. Rosen, seeks fifteen million dollars in damages resulting from the October 1 occurrences. Although Mr. Rosen is not now retained by the union to represent it in this civil action, he could not state unequivocally to the Court that he would not be obliged to disclose to the union the substance of the grand jury proceedings as related to him by his individual clients. Transcript at 2. Thus, not only has the very functioning of the grand jury been impaired, but also its integrity as a confidential investigative body would be threatened if not compromised by continued multiple representation.

To require separate counsel for each witness, however, necessarily infringes upon that witness' right to counsel of his choice. In determining whether such an infringement is justified, this Court must analyze and weigh the opposing interests involved. On the one hand, each witness has the right to retain counsel of his choice and the right to associate for purposes of retaining counsel. Counterbalancing these two rights is the public's interest in the effective functioning of the grand jury.² In balancing these respective interests, the Court is of the opinion that the public interest in the effective functioning of the grand jury compels the conclusion that neither Mr. Rosen nor any other single attorney can continue to represent all pressmen called as witnesses before the grand jury.

A. The Interests of the Witnesses

In Faretta v. California, 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court recently expounded on the relationship between lawyer and client. The Court made clear that "The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." 95 S.Ct. at 2533. The accused must be "master" of his defense, and counsel his "assistant." Id. It follows that a person should be able to choose his own counsel; if the state were to dictate which counsel each accused must retain, he would no longer be "master" of his defense. See Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 99 L.Ed. 1 (1954); Lee v. United States 98 U.S.App.D.C. 272, 274, 235 F.2d 219, 221 (1956); United States v. Liddy, 348 F.Supp. 198, 200 (D.D.C.1972).

The right to free choice of counsel, however, is not absolute. For example, an indigent defendant in a criminal trial has the right to the effective assistance of coun...