PETITION OF SCHAFFER, Misc. No. 589.

• Citation: 424 F. Supp. 52
• Decision Date: 03 December 1976
• Docket Number: Misc. No. 589.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Petition of Kathleen SCHAFFER.

424 F. Supp. 52

Petition of Kathleen SCHAFFER.

Misc. No. 589.

United States District Court, E. D. Wisconsin.

December 3, 1976.

James M. Shellow, Stephen M. Glynn, Shellow & Shellow, Milwaukee, Wis., for petitioner.

Charles N. Clevert, Asst. U. S. Atty., Milwaukee, Wis., for the United States.

WARREN, District Judge.

ORDER

Petitioner, Kathleen Schaffer, seeks to obtain the disclosure of any and all testimony given by witnesses before grand juries in the Eastern District of Wisconsin relating to the death of William Weber. The petition is properly before this Court under rule 6(e) of the Federal Rules of Crim.Procedure.¹

Kathleen Schaffer is charged in the Circuit Court of Milwaukee County with the murder of William Weber and is presently on trial for that homicide. The facts surrounding the homicide are somewhat complex. The petitioner, the homicide victim, and various associates were apparently involved in the distribution of controlled substances in the Milwaukee area, and there is cause to believe that the motivation for the homicide was drug related. Witnesses for the state have testified to the drug activities of these individuals during the critical period leading up to the murder of William Weber and have identified three individuals who were indicted by the Federal Grand Jury and subsequently convicted of offenses relating to the distribution of controlled substances. The latter three individuals are presently in federal custody and have not testified in the present homicide trial of Kathleen Schaffer.

In light of the apparent involvement and relation of these individuals with the victim and certain state witnesses, petitioner believes that certain unknown witnesses having knowledge of the death of William Weber may have testified before one or more grand juries. Disclosure of the grand jury minutes is therefore necessary, it is urged, to prove her innocence, impeach those witnesses who have testified against her, and to demonstrate that others had substantial motives for killing William Weber. Petitioner asserts that this compelling and "particularized" need far outweighs the time-honored policy of grand jury secrecy.

Petitioner acknowledges the difficult burden that confronts anyone seeking to overcome the policy of grand jury secrecy. The Court has discretion to release grand jury proceedings but only after a showing of "particularized" and compelling need. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburg Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). After hearing oral argument and reviewing the briefs submitted in support of and in opposition to said petition, the Court is of the opinion that petitioner has failed to satisfy the particularized need requirement which has been engrafted upon rule 6(e) of the Federal Rules of Crim.Procedure.

A brief glance at the petition reveals the lack of particularity set forth therein. Petitioner seeks "the release of any and all testimony given by witnesses before grand juries in the Eastern District of Wisconsin relating to the death of William Weber, the activity of William Weber prior to his death and the transactions between such witnesses and William Weber." Petition at p. 1. The broad nature of this request is readily apparent. In fact the only thing that can be said to be particularized is the general subject matter of the request. Petitioner in effect seeks to make the grand jury minutes available for discovery purposes in the hope that some unknown witness may provide exculpatory evidence in some form or another. Petitioner's inability to identify particular witnesses or even the particular grand jury is further evidence of the general nature of this request although such specificity is not necessarily required to meet the burden of particularized need.

Petitioner argues that a rigid application of the particularized need requirement places her in a "catch-22" predicament. As the grand jury minutes are secret, she is unable to narrow her request. The Court is not unmindful of the difficult position confronting petitioner and the rather vague contours of the term "particularized need." In fact, the term is probably incapable of definition and this Court declines to even make an attempt in this regard. Other courts when faced with this problem appear to have examined the facts on a case by case basis. In the final analysis the decision requires a balancing of the particular need of the petitioner and the strong policy...