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SAN JOSE — The Sixth District Court of Appeal on Wednesday ruled that a Santa Clara County grand jury foreman did not violate a newspaper’s free speech rights when instructing witnesses not to discuss their testimony. The San Jose Mercury News argued that the restrictions placed on witnesses during a grand jury investigation into former Santa Clara County Judge William Danser amounted to a prior restraint and hampered news gathering. Though the paper wanted it made clear that witnesses are free to speak to reporters, a three-judge panel ruled that a grand jury’s instruction not to reveal information about the proceedings is no more of a prior restraint than a gag order. “Although it may function somewhat like a prior restraint by impeding the flow of information, the information impeded is not the type that is generally available to the public,” Justice Eugene Premo wrote. Presiding Justice Conrad Rushing and Justice Franklin Elia concurred. “Indeed, it is undisputed that there is no First Amendment right of the public to access grand jury proceedings. Our Supreme Court has emphatically determined that ‘grand jury secrecy is the rule and openness the exception, permitted only when specifically authorized by statute,’” Premo wrote. The case springs from a conversation between a grand jury witness and a Mercury News reporter on Sept. 9, 2003. The reporter was questioning a witness waiting to testify in the ticket-fixing investigation of Danser. The grand jury foreman had been instructing witnesses that they could be charged with contempt of court if they revealed to anyone what they’d learned about the proceedings while testifying. A prosecutor who saw the reporter speaking with a witness told them that the witness could be “thrown in jail” for discussing testimony. The witness later refused to talk to the reporter. Another potential witness also refused to be interviewed unless prosecutors approved. The paper filed a writ of mandate questioning the constitutionality of the witness admonitions. The judge who presided over the Danser trial, retired Santa Cruz County Superior Court Judge William Kelsay, ruled against the paper. The Sixth District did not explore what happened outside the courtroom but simply whether the admonition to jurors amounted to prior restraint. Santa Clara’s Office of the County Counsel argued that the foreman’s admonition only applies to what witnesses hear or learn during grand jury proceedings. “This was important to the operation of the grand jury, and we’re pleased the court recognized that this wasn’t a violation of the First Amendment,” said Martin Dodd, special assistant county counsel and one of three county attorneys who litigated the case. “The limited admonition that’s been in use for decades is not a violation of the First Amendment, and one assumes if the decision went the other way it could have a significant impact on the grand jury’s ability to operate,” Dodd said. Edward Davis Jr., who represented the Mercury News, said the decision will make witnesses less likely to talk to the media. Witnesses never hear that they are allowed to talk to reporters about topics outside of grand jury proceedings, he said. “Witnesses are already reluctant to make the independent decision to talk to reporters about what they know. So now we’ll know even less about what exactly is going on,” said Davis, a partner at Gray Cary Ware & Freidenrich. He said he didn’t know if the ruling would be appealed. Walter Hansell, a media law specialist and partner with Cooper, White & Cooper, said the decision “is a troubling example of a court cooperating in the government’s effort to limit civil rights.” “If we start with a right that everyone acknowledges — and show that the government can intimidate people into not exercising that right — it’s an abuse of power,” said Hansell, who has represented broadcast and cable companies in free speech cases. “The court, in a sense, gave the government a technicality to get away with violations of the First Amendment,” Hansell said. “The right of the newspaper to publish or speak is also an extension of a citizen’s right to speak. For the government to tell people they can’t speak about something is an infringement.” The panel pointed out that the witnesses, not the Mercury News, were under the foreman’s admonitions. Hansell said that the only way this type of suit could succeed would be for a witness to risk contempt, talk to the press and then file a lawsuit arguing prior restraint. Santa Clara County prosecutors recently ended their second open grand jury proceeding into a law enforcement officer’s use of deadly force. Those hearings, unlike routine grand juries, are open to the press and the public. Nevertheless, the district attorney’s office strongly supported the decision. “Secrecy in a grand jury investigation is fundamental to the legal process, and I can’t even surmise what could happen if the decision went the other way,” Assistant District Attorney Karyn Sinunu said. The case is San Jose Mercury News v. Criminal Grand Jury of Santa Clara County, 04 C.D.O.S. 8508.

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