[Provided Courtesy Justice Watch Forum]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case Number 00-D-1597
LINDA HOFFMANN-PUGH
Plaintiff,
vs.
MARY T. KEENAN, as District Attorney for the Twentieth Judicial District of the State of Colorado
Defendant
______________________________________________________________________________
DEFENDANT'S RESPONSE TO PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________

COMES NOW the Defendant, Mary T. Keenan, as District Attorney for the Twentieth Judicial District of the State of Colorado, by and through counsel Andrew R. Macdonald, Assistant County Attorney and William F. Nagel, Assistant District Attorney and hereby respond to Plaintiff's Motion for Summary Judgment as follows:

I. STATEMENT OF UNDISPUTED MATERIAL FACTS

The parties have agreed to undisputed material facts as stated in Paragraphs One through Eleven in Plaintiff's Motion for Summary Judgment filed April 16, 2001.

II. STATEMENT OF THE CASE

Plaintiff is Ms. Linda Hoffman-Pugh. She was a housekeeper for John and Patsy Ramsey prior to the highly publicized murder of their daughter, JonBenet. Defendant is the duly elected District Attorney for the district where that murder occurred. It is undisputed that Ms. Hoffman-Pugh testified under the oath required for all witnesses before the grand jury which investigated the Ramsey murder from 1998 until October 1999, when its term ended by law. No indictment or grand jury report concerning that murder has been issued. The crime of murder has no statute of limitations. She claims that she would like to write about her grand jury testimony in a book, discuss it with the media, and answer questions about it from interested members of the public, but is unable to do so because of the requirements of grand jury secrecy, which can be enforced by contempt proceedings. This court is being asked to determine whether Colorado may maintain the traditional secrecy of grand jury proceedings by prohibiting witnesses from disclosing their actual testimony and other circumstances about their appearance before the grand jury after it has completed its term without filing an indictment or grand jury report, subject to an exception upon a judicial finding of good cause.

III. ARGUMENT

A. Plaintiff's Argument Rests On An Inaccurate Description the Colorado Rules.

The Colorado rules are not, as Ms. Hoffman-Pugh claims, a "blanket prohibition" precluding witnesses from divulging "information developed by private citizens," regardless of "how that information was obtained." (Plaintiff's Brief, Sec. III(A), pages 5 and 6). Those rules preclude a witness from describing what went on behind the closed doors of the grand jury room, nothing more. The rules are narrowly designed to protect the grand jury process without unduly restricting either private speech or public discussion.

The rules provide, consistent with long recognized grand jury practice, that:

All persons associated with a grand jury and its investigations or functions should at all times be aware that a grand jury is an investigative body, the proceedings of which shall be secret. Witnesses or persons under investigation should be dealt with privately to insure fairness. The oath of secrecy shall continue until such time as an indictment is made public, if an indictment is returned, or until a grand jury report dealing with the investigation is issued and made public as provided by law.

Rule 6.2(a), Colo.R.Crim.P. (emphasis added). (See Exhibit "A", attached hereto and incorporated herein by reference.) The Supreme Court's rules also require that every witness testifying before the grand jury take the following oath:

Do you swear (affirm) under penalty of perjury that the testimony you are to give is the truth, the whole truth, and nothing but the truth, and that you will keep your testimony secret, except to discuss it with your attorney or the prosecutor, until and unless an indictment or report is issued?

Colo.R.Crim.P. 6.3 (emphasis added). (See Exhibit "A", attached hereto and incorporated herein by reference.) The Colorado rules also provide that any witness can ask the court, for good cause, to enter an order "to furnish to that witness a transcript of his own grand jury testimony, or minutes, reports, or exhibits relating to them." Colo.R.Crim.P. 6.9(b). (See Exhibit "B", attached hereto and incorporated herein by reference.)

Under rule 6.3(a), the "proceedings" are secret. Under rule 6.3, it is "the testimony" which must be kept secret. Neither rule prohibits a witness from discussing the substance of what he or she knew prior to entering those secret proceedings; instead, the rules only prohibit a witness from discussing the presentation of that information to the grand jury and matters related to the grand jury procedure itself. "Grand jury secrecy is intended only to prevent disclosure of what transpires or will transpire before the grand jury." People v. Rickard, 761 P. 2d 188, 192 (Colo. 1988); Granberry v. District Court, 531 P. 2d 390, 393 (Colo. 1975). A grand jury witness is not, therefore, silenced with regard to information he or she developed on his or her own and possessed prior to testifying before the grand jury. The rules only prohibit a witness discussing such information by reference to the grand jury.

In addition, the Colorado rules provide for judicial relief from the secrecy requirement. The supervising judge can, upon request, release otherwise secret testimony and related materials upon a finding of good cause and subject to restrictions and limitations on use deemed appropriate under the circumstances. Any witness who perceives some need to disclose her role in the grand jury proceeding can take her concerns to the supervising judge. Ms. Hoffman-Pugh has not availed herself of this state avenue for relief.

B. The Colorado Provisions Are Not Comparable to Those Found Unconstitutional In Butterworth and They Are Valid Under That Holding

Ms. Hoffman-Pugh's reliance on Butterworth is misplaced. (Plaintiff's Motion, p. 2, (d); Plaintiff's Brief, pp. 3, 8, & 13-14) The Court there said "that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution." Butterworth, 494 U.S. at 626. The Court's analysis reveals, however, that this reference to the "testimony" of a witness was a reference to "what he knew before he entered the grand jury room" as opposed to "what he told the grand jury he knew." Butterworth, 494 U.S. at 636 (Scalia, J. concurring). Because the Colorado rules do not preclude a witness from disclosing the information a witness acquired on his or her own before entering the grand jury room, those rules are not unconstitutional under Butterworth.

The Florida statute at issue in Butterworth stands in stark contrast to the much more limited Colorado provisions at issue here. Fl. Stat 905.27 stated:

(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding.

Butterworth, 494 U.S. at 627 (emphasis added). The Court described the broad effect of that statute as "dramatic," explaining that:

before he is called to testify in front of the grand jury, respondent is possessed of information on matters of admitted public concern about which he was free to speak at will. After giving his testimony, respondent believes he is no longer free to communicate this information since it relates to the "content, gist, or import" of his testimony.

Butterworth, 494 U.S. at 635. By explicitly imposing criminal penalties on the disclosure of "the content, gist, or import" of grand jury testimony, the statute penalized disclosing the information the witness acquired on his own, independent of the grand jury proceedings.

The Butterworth Court defined the issue before it by contrasting the decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (upholding a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures.) The Court in Butterworth said:

Here, by contrast, we deal only with respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury.

Butterworth, 494 U.S. at 631-32. The Court's concluding sentence confirms that the First Amendment right violated by the Florida statute was the "right to make a truthful statement of information he acquired on his own." Butterworth, 494 U.S. at 636. The Court's analysis establishes, therefore, that it used the word "testimony" to mean information which the witness acquired on his own before he appeared before the grand jury, and not to mean information obtained by the witness as a result of his participation in the proceedings of the grand jury. The constitutional defect in the Florida statute was that it precluded a witness from communicating information he possessed before he testified in front of the grand jury. The Colorado rules do not contain that defect.

C. There is a Long History and There Are Strong Policies Which Support Grand Jury Secrecy.

Precluding disclosure of information learned through the grand jury proceedings falls within the firmly established rule of secrecy which has long governed the grand jury. The Court in Butterworth recognized the "important role" of "he tradition of secrecy surrounding grand jury proceedings," which, it said, evolved, at least in part, to implement the function of safeguarding "citizens against an overreaching Crown and unfounded accusations." Butterworth, 494 U.S. at 630-31, citing Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218-219, n. 9 (1979). The Court said, "We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. See, e.g., United States v. Procter & Gamble Co., (356 U.S. 677 (1958))."

In Proctor and Gamble, the Court described "a long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." Proctor and Gamble, Co., 356 U.S. at 681. It then said, "This 'indispensable secrecy of grand jury proceedings.' United States v. Johnson (319 U.S. 503, 513 (1943)) must not be broken except where there is a compelling necessity," which had to be shown with particularity and which had to outweigh the policies behind secrecy with particularity. Proctor and Gamble, Co., 356 U.S. at 682.

The Supreme Court later described the "'long-established policy' of secrecy" to be "older than our Nation itself" and to be based on manifold reasons that "are compelling when viewed in the light of the history and modus operandi of the grand jury." Pittsburgh Plate Glass Co. v. U.S., 360 U.S. 395, 399 (1959). The Court said, "To make public any part of its proceedings would inevitably detract from its efficiency. Grand jurors would not act with that independence required of an accusatory and inquisitorial body." Pittsburgh Plate Glass, 360 U.S. at 400.

In Douglas Oil, the Court again recognized "that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings," explaining that "since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye." Douglas Oil, 441 U.S. at 218 & n.9. The Court reiterated the "interests served by safeguarding the confidentiality of grand jury proceedings," including ensuring full and frank testimony from witnesses, who might otherwise "be open to retribution as well as to inducements" and assuring "that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil, 441 U.S. at 219 & n.10. The Supreme Court said that "courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury," Douglas Oil, 441 U.S. at 219, so that to break "the traditional secrecy of the grand jury" by requesting transcripts, a party "must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed." Douglas Oil, 441 U.S. at 222. "The practice of requiring witnesses to take an oath of secrecy is a logical method of effecting the general policy of secrecy in respect of the proceedings of these bodies." Goodman v. U.S., 108 F.2d 516, 518 (9th Cir. 1939). The Colorado Supreme Court has relied on these U.S. Supreme Court cases in recognizing the comparable importance of secrecy to the grand jury in Colorado. It cited Johnson for grand jury secrecy being "indispensable" when it said that Rule 6.2(a) of the Colorado Rules "embodies the long-established policy that grand jury proceedings should be maintained in secrecy." Rickard, 761 P. 2d at 191. It also quoted Douglas Oil for our dependence on secrecy for the proper functioning of the grand jury system. Id. Pittsburgh Plate Glass and Proctor and Gamble were also cited for the reasons for grand jury secrecy, People ex Rel. Losavio v. J.L., 580 P. 2d 23, 28 (Colo. 1978); People v. Zupancic, 557 P. 2d 1195, 1196 (Colo. 1977), and for the requirement that any disclosure of grand jury proceedings "must be done discreetly and limitedly." Rickard, 761 P. 2d at 191; Granberry, 531 P. 2d at 392.

In Butterworth, the U.S. Supreme Court reiterated the list of several well-recognized "interests served by safeguarding the confidentiality of grand jury proceedings," including:

... 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 inducement. ... Finally, by preserving the secrecy of the proceeding, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Butterworth, 494 U.S. at 630.
Ms. Hoffman-Pugh desires to divulge her experience before the grand jury to enhance the book she would like to write and to embellish her conversations with reporters and with the public. The prospect of such financial gain and personal notoriety, particularly in this day of cable television, talk shows, tabloids, Internet chat rooms, and book contracts could, consciously or subconsciously, serve as an inducement, influencing what one says or to what one attends while before the grand jury. The inducements of possible personal benefit and profit from modern media and publication opportunities could impact the candor and accuracy necessary for frank and full testimony by witnesses, upon which the grand jury depends.

In addition, piecemeal revelations about an individual's experience in grand jury proceedings would invite public speculations and conjecture about the meaning of comments, questions, and reactions within the grand jury room, without the benefit of the full context provided by the entire grand jury proceeding. Grand jurors and their legal advisors may change their questions or comments out of concern for how they might appear when presented to the public out of context. Disclosure of the testimony and observations of an individual witness by cloaking it by association with the credibility of the grand jury, but taken out of context, can be unfair and harmful. Such disclosure of one's grand jury experience can impact the grand jury in the exercise of its duties and can also impact the reputation of those who may be investigated but are not charged. These interests supporting grand jury secrecy are institutional, so this Court must consider the implications of the relief requested in this case on other grand jury investigations as well. See, Douglas Oil Co. 441 U.S. at 222 ("courts consider not only the immediate effects upon a particular grand jury but also the possible effect upon the functioning of future grand juries.") In addition, these interests continue after the grand jury term has ended, Id., particularly when the crime investigated has no statute of limitations and the investigation is ongoing.

D. The State's Interests In Maintaining The Secrecy Of The Grand Jury Proceedings Outweigh A Witness' Interest In Disclosing His or Her Grand Jury Experience

Ms. Hoffman-Pugh uses much of her brief to argue that strict scrutiny applies, so the state must show a "clear and present danger" to a compelling state interest, and that "the grand jury witness secrecy rules are narrowly tailored to effectively serve that interest without imposing an unnecessary burden on protected expression." Plaintiff's Brief at 4, 5, 7-13. However, in Butterworth the Supreme Court did not apply the strict scrutiny test now relied upon by Ms. Hoffman-Pugh. Instead, the Court only said, "We must thus balance respondent's asserted first amendment rights against Florida's interests in preserving the confidentiality of its grand jury proceedings." Butterworth, 494 U.S. at 630.

Ms. Hoffman-Pugh insists on strict scrutiny by claiming that "core speech" is involved here. Her argument is, once again, refuted by Butterworth. The witness in Butterworth was a newspaper reporter who had researched and published a series of articles concerning alleged improprieties by the State Attorney's Office and the Sheriff's Department, and the grand jury was investigating those allegations. Butterworth, 494 U.S. at 626. In balancing the interests of that witness in disclosing his information against the interests of the state in maintaining secrecy, the Court emphasized that the case involved "information relating to alleged governmental misconduct - speech which has traditionally been recognized at the core of the First Amendment." Butterworth, 494 U.S. at 632.

Here, in contrast, the grand jury was investigating a homicide. Important as the investigation of any serious crime may be, it is not comparable, for First Amendment purposes, to an investigation of alleged governmental wrong-doing. The details of a criminal investigation do not lie at the core of the First Amendment. Not only is strict scrutiny not the proper test, but the investigatory function of the grand jury shifts the balance decisively in favor of maintaining grand jury secrecy.

It was in conducting this balancing of interests that the Court in Butterworth distinguished Rhinehart by emphasizing that case involved information obtained during civil discovery. Butterworth, 494 U.S. at 631-32. In contrast, the Court emphasized that Butterworth involved "respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury." Id. The petitioner in Rhinehart, the Seattle Times, argued that the protective order prohibiting use of information obtained through discovery restricted protected speech and, therefore, the First Amendment gave it a right to disseminate any information gained through discovery. Rhinehart, 467 U.S. at 30. The Supreme Court disagreed, holding instead that "where ... a protective order is entered on a showing of good cause ... is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." Rhinehart, 467 U.S. at 37. The Court also found that "the provision for protective orders ... requires no heightened First Amendment scrutiny." Rhinehart, 467 U.S. at 34-35. Because the Colorado rules are based on a long tradition of grand jury secrecy and only restrict disclosure of information about what transpires in the grand jury proceedings, not information possessed by the witness before he testified, Rhinehart is applicable here and, in addition, the balancing of interests under Butterworth decisively favors the established tradition of secrecy. This case requires "no heightened First Amendment scrutiny." The Supreme Court has also established two considerations for whether the qualified First Amendment right of access attaches to a particular part of the criminal process: (1) "whether the place and process have historically been open to the press and general public" and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Company v. Superior Court, 478 U.S. 1 (1986)(holding that a court order denying press access to the preliminary hearing violated the qualified right of access). Numerous courts have determined that there is no First Amendment right of access to search warrant documents submitted to a court during the investigation of a crime, particularly prior to the filing of charges, because search warrants have historically been processed in secret and because the investigation would be hindered, not assisted, by public access to the information submitted in support of the warrant. The reasoning of these cases is very applicable to First Amendment considerations of grand jury secrecy because both situations arise pre-indictment as part of the investigation of crime.

Typical of this reasoning is that in Baltimore Sun Company v. Goetz, 886 F.2d 60 (4th Cir. 1989), where the Court recognized "that proceedings for the issuance of search warrants are not open," but, instead, are "necessarily ex parte" and the "warrant application involves no public or adversary proceeding." Baltimore Sun, 886 F.2d at 64-65. Likewise, the Ninth Circuit has said:

The process of disclosing information to a neutral magistrate to obtain a search warrant, therefore, has always been considered an extension of the criminal investigation itself. It follows that the information disclosed to the magistrate in support of the warrant request is entitled to the same confidentiality accorded other aspects of the criminal investigation. Both the magistrate in granting the original sealing order and the district court in reviewing such orders have necessarily been highly deferential to the government's determination that a given investigation requires secrecy and that warrant material be kept under seal.

Times Mirror Company v. United States, 873 F.2d 1210, 1214 (9th Cir. 1989).
The investigatory grand jury process is comparable to the application for a search warrant in that historically, both have been conducted in secret and ex parte. If anything, the grand jury has a longer and more consistently acknowledged history of secrecy. There is no First Amendment right of access to the grand jury process and no First Amendment right to disclose what went on before the grand jury under the first prong of Press-Enterprise.

Cases involving sealing of search warrant documents also reveal the interests served by secrecy prior to indictment and how disclosure would impede, not advance, the interests behind the grand jury. As shown above, protecting the privacy and reputation of those investigated but not charged is one of the recognized justifications for grand jury secrecy. Sealing search warrant documents serves this same purpose and those cases explain that purpose in greater detail. For example, the Ninth Circuit said that any official suspicion implicit in an affidavit in support of a warrant will be unaccompanied by any facts providing a context for evaluating the basis for the opinion with respect to any given individual. When one adds to this that the opinion was formed on the basis of an investigation that had not yet reached the point where he was willing to make a decision on whether to prosecute, it becomes apparent that the risk of serious injury to innocent third parties is a grave one. Finally, ... the named individuals have not been indicted and, accordingly, will not have an opportunity to prove their innocence at trial. This means that the clearly predictable injuries to the reputations of the named individuals is likely to be irreparable.

Times Mirror, 873 F. 2d at 1216. The Court also emphasized that:

... the issuance of a warrant -- even on this minimal information -- may indicate to the public that the government officials have reason to believe that the persons named in the search warrant have engaged in criminal activity. Moreover, persons named in the search warrant papers will have no forum in which to exonerate themselves if the warrant materials are made public before indictments are returned. Thus, possible injury to privacy interests is another factor weighing against public access to warrant materials during the pre-indictment stage of an investigation.

Times Mirror, 873 F.2d at 1216.
The Eighth Circuit also emphasized that in balancing the interest in access against individual privacy interest, "the absence of an indictment weighs heavily in favor of privacy interests and non-disclosure." Certain Interested Individuals v. Pulitzer Publishing Co., 895 F. 2d 460, 466 (8th Cir. 1990). The Court explained that the inference from such documents was that those subjected to the search were involved in criminal activity, yet the lack of an indictment suggested an inability to prove such allegations, and "he court of public opinion is not the place to prove them." Id. The Court also said that because those documents may implicate people who have still not been indicted, "isclosure could seriously damage their reputations and careers" and "the pre-indictment status of the government's criminal investigation tips the balance decisively in favor of the privacy interests and against disclosure of even the redacted versions of the search warrant affidavits at this time." Certain Interested Individuals, 895 F.2d at 467. The long history of secrecy of the grand jury process and the dangers of piecemeal, pre-indictment dissemination of information from grand jury proceedings on the integrity of an unsolved murder investigation and on the privacy interests of people involved but never charged are even more compelling support for secrecy of grand jury proceedings as they are for confidentiality of search warrant documents.

IV. CONCLUSION

The Colorado grand jury secrecy requirements applicable to witnesses are constitutional. Ms. Hoffman-Pugh is not entitled to relief as a matter of law. To the contrary, the Court should enter an order granting relief to the District Attorney, finding the Colorado rules on grand jury secrecy applicable to witnesses valid as a matter of law.

Dated: June 1, 2001.
Respectfully Submitted,

H. LAWRENCE HOYT, # 7563
BOULDER COUNTY ATTORNEY

By:___________________________
Andrew R. Macdonald, # 17661

______________________________
William F. Nagel, # 10625
Attorneys for:
MARY T. KEENAN, DISTRICT ATTORNEY
TWENTIETH JUDICIAL DISTRICT
CERTIFICATE OF MAILING

I hereby certify that on June 1, 2001, a true and accurate copy of this DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT was placed in the U.S. Mail, postage prepaid, addressed to:

Darnay Hoffman, Esq.