IN THE UNITED STATES DISTRICT COURT Civil Action No. 00-D-1597 (W.Y.D.) Defendant. PLAINTIFF’S REPLY Plaintiff Linda Hoffmann-Pugh, by her attorney Darnay Hoffman, hereby replies to the Defendant’s Response to Plaintiff’s Motion For Summary Judgment as follows: REPLY STATEMENT OF THE CASE Defendant Mary Keenan does not take issue with the plaintiff’s argument that Colorado’s vast majority of prosecutions begin by Information instead of grand jury indictment, and that these prosecutions are successfully conducted by investigations without any witness secrecy whatsoever. The defendant apparently concedes by her silence that witnesses who speak with law enforcement officers are allowed to immediately reveal anything they learn about the investigation, thereby making the nearly ninety-six percent of all criminal investigations in Colorado an open book. The defendant also, by her silence, declines to take issue with the fact that the fifty-five year old Federal Rule of Criminal Procedure 6(e) specifically excludes grand jury witnesses from any secrecy obligation, thereby providing unequivocal proof, borne out by hundreds of thousands of successful federal indictments, that grand juries have been functioning successfully for decades without the need to gag witnesses. Moreover, nearly two-thirds of the states have no restrictions on witness secrecy at all. The defendant, likewise, completely ignores the plaintiff’s argument that there are less restrictive means to protect Colorado’s interests in grand jury secrecy. The issue of unconstitutional prior restraint on news reporting and news dissemination is also ignored. Finally, the defendant completely side-steps the human suffering attached to grand jury witnesses who cannot remove the potential public stigma associated with their appearance before the grand jury by speaking out about their testimony in an attempt to remove the impression that they might be a target, when in fact they are not. The defendant chooses to focus, instead, on dubious interpretations of what Colorado’s rules 6.2 and 6.3 mean, without presenting any supporting case law. For example, defendant makes the bald statement, without any authority, that: “Neither rule prohibits a witness from discussing the substance of what he or she knew prior to entering those secret proceedings.” (emphasis added) (Def. Resp. p. 4) The defendant then goes on to state that “The rules only prohibit a witness discussing such information by reference to the grand jury” without explaining how that conclusion is reached. (emphasis added) (Def. Resp. p. 4) Finally, the defendant makes the observation that since “Any witness who perceives some need to disclose her role in the grand jury proceeding can take her concerns to the supervising judge”, that this somehow remedies the chilling effect on speech that a grand jury witness may feel. Arguably, just the prospect of appearing before a judicial authority to receive “permission” to speak would create the impression that a grand juror does not enjoy a First Amendment right to discuss her testimony freely. So how is the Court expected to know the defendant’s arguments about grand juror witness secrecy are true? Apparently, the Court is supposed to believe that a grand juror would be assured of their complete legal safety by the defendant’s arguments simply because the defendant says so. After all, the defendant is the Boulder District Attorney and is, therefore, speaking ex cathedra through her legal representatives in her brief for this case. Clearly, the defendant’s arguments are patently deficient and the Court should dismiss them in their entirety. REPLY ARGUMENT A. Plaintiff’s Argument Accurately Describes the Colorado Rules, Which Are Unconstitutional Under Buttwerworth Defendant argues that “Because the Colorado rules do not preclude a witness To begin with, there is nothing in the plain language reading of the grand jury secrecy oath that would lead a witness to believe they were at liberty to divulge the gist of their grand jury testimony, or to believe that referencing their discussions so as not to include any mention of the grand jury process would protect them from criminal contempt of court. Rule 6.3 merely states: “that you will keep your testimony secret…until and unless an indictment or report is issued.” It is precisely because of the vagueness in the meaning of the words “keep your testimony secret” that a witness is “chilled” in their speech. The witness has to guess whether the word “testimony” means “verbatim” or “gist” and whether referencing their grand jury testimony discussion means “direct” or “indirect” Vague rules and laws violate two fundamental principles of due process: (1) they leave the public (i.e., grand jury witnesses) guessing as to what actions are proscribed (i.e., verbatim recounting of testimony while referencing the grand jury or case discussion in which a reasonable inference can be drawn by the listener that the subject of conversation was the topic of a witness’ testimony before the grand jury); and (2) they invite arbitrary and discriminatory enforcement by giving unbridled discretion to law enforcement officers (i.e., the defendant attorney’s own admission that he is unable to make the simple observation in a Statement of Undisputed Facts that the plaintiff appeared before the grand jury because he believes he will violate Colorado’s grand jury secrecy rules.) Grayned v. City of Rockford, 408 U.S. 104, 109-09 (1972); Connally v. General Construction Co., 269 U.S. 385, 391 (1926). The vagueness of the meaning of Rule 6.3’s oath is a particular problem since it regulates the grand jury witness’ freedom of expression. The Supreme Court has ruled that perhaps the single most important factor affecting the clarity that the Constitution demands of a law or rule is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or association, a more stringent vagueness test should apply. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). In short, “[p]recision of regulation…must be the touchstone” where free expression is concerned. NAACP v Button, 371 U.S. 415, 438 (1963). Such exactitude is necessary since “[u]ncertain meanings” inevitably lead citizens to “steer far wider of the unlawful zone’…than if the boundaries of the forbidden areas were clearly marked.” Id. 438 B. Defendant Cites Inapposite Case Law Involving More Delimited Restrictions In Specialized Contexts The source and flow of the information, moreover, are radically different. In Seattle Times, a litigant in a civil suit was prevented from disseminating private organization membership data, developed by others, which the litigant had obtained only through a pretrial discovery order “that both granted him access to [the] information and placed restraints on the way in which the information might be used.” 467 U.S. at 32. (The protective order upheld in Seattle Times had “no application except to information gained by the defendants through the use of the discovery process.” 467 U.S. at 27 n.8 [quoting the lower court order]). In the instant case, by contrast, the Colorado Rules forbid a witness from ever discussing or using information that she herself has developed and possessed before she was forced to divulge it to the grand jury. The witness is silenced without any particularized examination of the potential detrimental effects on their rights of free speech. The concern here, therefore, is not the plaintiff’s possible abuse of a judicial order, but rather, the danger created by Colorado’s blanket silencing of grand jury witnesses and the monopolization of information developed by private citizens. The defendant’s citation of Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), is also misguided. There, plaintiffs in a civil antitrust suit sought the transcript of grand jury proceedings that had led to the criminal antitrust indictments of the defendants. In the instant case, Linda Hoffmann-Pugh does not seek to obtain the testimony of any other witnesses. Indeed, she does not seek any information at all from the grand jury, since she already has the information. The plaintiff simply wants to disseminate her own personal experiences about the JonBenet Ramsey murder, and to relate this account without being subjected to the threat of criminal prosecution. Similarly, in citing United States v. Procter & Gamble Co., 356 U.S. 677 (1958), the defendant misses the point. Criminal defendants made an inadequate showing in their attempts to obtain transcripts of the grand jury testimony of other witnesses. The Court in Procter & Gamble noted that the defendant had another method of obtaining the grand jury testimony of the state’s witness – pretrial discovery. Here, there are no permissible means for Linda Hoffmann-Pugh to regain control over her information and personal experiences -- Colorado has silenced her testimony completely with the threat of criminal prosecution for contempt of court. Once again, to summarize: Linda Hoffmann-Pugh neither seeks the grand jury transcripts of other witness’s testimony nor does she wish to reveal aspects of an ongoing criminal investigation. She merely wishes this Court to remove the permanent gag placed over her mouth, which was put there by the state of Colorado the moment the Boulder District Attorney called her into the grand jury room. In citing all of its inapposite case law, the defendant has failed to demonstrate how the permanent silencing of grand jury witnesses like Linda Hoffmann-Pugh, with all of its attendant threats to the First Amendment, is narrowly tailored to further Colorado’s professed state “interests.” CONCLUSION
FOR THE DISTRICT OF COLORADO
LINDA HOFFMANN-PUGH,
Plaintiff,
v.
MARY T. KEENAN, as District Attorney for the 20th Judicial District of the State of Colorado,
However, just saying something is so, doesn’t make it so. But wishful thinking does.
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.” (Def Resp. p. 5)
The defendant cites inapposite case law to support her argument that this action violates a long history of grand jury secrecy. On the contrary, this case raises no issue of access to confidential proceedings or exposure of secret government information. Rather, it concerns a permanent, blanket ban upon the speech of all grand jury witnesses. Therefore, the defendant is simply incorrect to urge this Court to apply the standard developed in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). Seattle Times addressed the constitutional constraints upon specific, limited protective orders tailored by a court to prevent abuse of its discovery processes in particular cases. That standard is clearly inappropriate for the evaluation of a blanket ban that patently silences and chills protected speech.
For the reasons set forth above, as well as those in the plaintiff’s main brief, Linda Hoffmann-Pugh respectfully submits that this Court should grant her Motion for Summary Judgment in all respects.
Dated: June 9, 2001
______________________
DARNAY HOFFMAN #2752
Attorney for Plaintiff