Under federal law, witnesses may talk about their grand jury testimony. The non-disclosure rules apply to the grand jurors, stenographers, interpreters, prosecutors and law enforcement. The ABA on the purpose of grand jury secrecy:
Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation.
The Supreme Court has denied cert in Reynolds' case which means she must comply with the subpoena. The cost has resulted in her shuttering the pain clinic.
Radley Balko writes:
Reynolds had to get special permission just to share information about her case with the Institute for Justice and the Reason Foundation (which publishes Reason magazine, my employer). When the organizations submitted an amicus brief on her behalf, that brief was also sealed, even though it's based on publicly available information. New York Times Supreme Court reporter Adam Liptak was able to read a portion of the sealed 10th Circuit ruling on the sealing of the Reason and Institute for Justice briefs. In November, Liptak reported that the court said one of its reasons for keeping the brief secret was to keep IJ and the Reason Foundation from discussing Reynolds' pain advocacy agenda in public.
That's an astonishing thing to read in a federal appeals court opinion. All of the information in the brief is publicly available. Yet the courts are preventing Reynolds and these organizations from releasing the briefs or the court rulings, at least in part to stifle public discussion about Reynolds' criticism of government policy.
From Adam Liptak's NY Times article. How sweeping was the subpoena?
It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”
Is it prosecutorial payback for her activism?
Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”
He quotes her lawyer:
“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”
Here is Reynolds' (court-redacted) Petition for Writ of Certioriari. On the sealing questions:
3. Whether the government may meet its burden of proof that it has a compelling interest in requiring the production of expressive materials and that the subpoenaed materials are substantially related to the grand jury investigation entirely through ex parte, in camera submissions?
4. Whether the First Amendment or Rule 6(e) of the Federal Rules of Criminal Procedure limit the
court's authority to seal the entire docket of ancillary grand jury proceedings imposing sanctions for contempt?
So Tanya Treadway wins another round, and the First Amendment and everyone else, particularly activists of all stripes, lose. Something is upside-down here.
More:
As for the Schneiders, Dr. Stephen Schneider was sentenced to 30 years, his wife to 33 years, and they were ordered to forfeit a million dollars (The Government had sought life sentences and $4 million forfeiture.). The federal public defender has been appointed for his appeal, but the government is fighting Mrs. Schneider's request for court appointed counsel.
Update: I just found the subpoena and Motion to Quash unredacted online. I won't post the link but it makes it even more curious that the court sealed everything when so much is already out there.
