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C©?V
SUPREME COURT CASE NO. S155944
IN THE
SUPREME COURT OF THE STATE OF CALIFORNIA
VS.
Deputy
INTRODUCTION ............................................ 3
ARGUMENT ............................................... 11
i°
County's Argument that Release of these Materials
to Goldstein Will Lead to Public Disclosure of the
Materials Is Wrong .......................... 20
TABLE OF CONTENTS (CONT.)
PAGE
B.
The Appellate Court's Decision Is Supported by a Long
History of Decisions of this Court and by the
Longstanding Practice of California Trial Courts ........ 21
CONCLUSION ............................................. 40
ii
TABLE OF AUTHORITIES
Estate of Lindquist
(1944) 25 Cal. 2d 697 ................................... 40
Ex Parte Sontag
(1884) 64 Cal. 525 ............................. 4, 19, 20, 21
People v. Baekus
(1979) 23 Cal. 3d 360 ................................... 23
People v. Coleman
(1978) 84 Cal. App. 3d 1016 ............................. 23
People v. Gonzalez
(1990) 51 Cal. 3d 1179 ................................. 23
People v. Holloway
(2004) 33 Cal. 4th 96 ............................. 12, 20, 22
People v. Laney
(1981) 115 Cal. App. 3d 508 .............................. 2
iii
TABLE OF AUTHORITIES (CONT.)
People v. McAlister
(1976) 54 Cal. App. 3d918 ............................... 36
People v. Snow
(1977) 72 Cal. App. 3d 950 ............................... 23
iv
TABLE OF AUTHORITIES (CONT.)
Diamen v. U.S.
(D.C.1999) 725 A.2d 501 ................................. 15
Euresti v. Valdez
(Tex.App. 1989) 769 S.W.2d 575 ........................... 15
Hinojosa v. State
(Ind. 2003) 781 N.E.2d 677 ................................ 15
In re Jessup's Petition
(1957) 50 Del. 530 ....................................... 15
Keen v. State
(Fla. 1994) 639 So. 2d 597 ................................. 15
Mannon v. Frick
(1956) 365 Mo. 1203 ................................ 15
People v. Di Napoli
(1970) 27 N.Y.2d 229 .................................... 15
State v. Beck
(1960) 56 Wash. 2d 474 ................................... 15
State v. Carillo
(1973) 112 R.I. 6 ......................................... 15
State v. Doliner
(1984) 96 N.J. 236 ....................................... 15
State v. Greer
(1981) 66 Ohio St. 2d 139 ................................. 15
State v. HarO%ld
(1981) 290 Or. 583 ....................................... 15
State v. Higgins
(La. 2005) 898 So. 2d 1219 ................................ 15
Sutton v. State
(1975) 25 Md. App. 309 .................................... 15
STATUTES PAGE
vi
IN TI-IE
SUPREME COURT OF THE STATE OF CALIFORNIA
been seeking access to the grand jury materials at issue since February of
2006. His federal lawsuit, now set for trial in January of 2009, has been
delayed due to the litigation of this issue. Goldstein needs to resolve this
calendaring.
ADDITIONAL ISSUE PRESENTED FOR REVIEW
There are two issues before this court. Los Angeles County
Counsel's Opening Brief stated one of these issues. (See County Counsel
Opening Br. at 1.)_ However, for reasons that are unclear, neither of the
County's two Opening Briefs state or address the additional issue that was
Pet. for Review at 7.) This additional issue is properly before this Court,
see Cal. Rule of Ct. 8.500(a)(2): "Do Penal Code sections 929 and 924.2
does, Penal Code section 924.2 create a statutory basis for application of the
and does Penal Code section 929 create a statutory basis for the disclosure
the Grand Jury clearly intended to make these materials available to future
litigants?"
For the reasons explained below, see infra note 2, Goldstein refers
to the "Opening Brief of Real Party in Interest Grand Jury of the County of
Los Angeles," which was written by the office of Los Angeles County
Counsel, as "County Counsel Opening Br." The brief submitted by the
private firm hired (presumably by the office County Counsel) to represent
Los Angeles County, John Van De Kamp and Curt Livesay in Goldstein's
civil rights suit referred to as "Private Counsel Opening Br."
INTRODUCTION
court explained in its opinion, the issue in these two cases was public
disclosure of grand jury materials, not the limited use of grand jury
more than 24 years based in large part on the false testimony of ajailhouse
and to hold accountable those who were responsible for the grave injustice
inflicted on him. He seeks access to these materials for the limited purpose
of using them in his pending federal civil rights case and will aNde by a
materials that they have always exercised--powers that the Los Angeles
Superior Court has in fact usedto give other litigants accessto the very
grandjury materials that Goldstein seeksto access,andpowers that the Los
Angeles County Grand Jury itself andthe judge presiding over it in 1990
believed existed when they preservedthesematerials for useby furore
litigants. See Goldstein, 154 Cal.App.4th at 487, 488, n.1 The appellate
court's decision is in fact consistent with California law and court practice,
both of which support releasing of grand jury materials when necessary for
use in court proceedings. See, e.g., Ex Parte Sontag (1884) 64 Cal. 525,
decision harmonizes these practices of releasing grand jury materials for use
in pending litigation with the law expressed in Daily Journal Corp. and
McClatchy Newspapers.
The experience of federal courts and the courts of sister states have
similarly borne out the wisdom of allowing litigants to access grand jury
materials where they are needed for use in court proceedings and this need
is great. These materials contain evidence and information that is not only
denied the opportunity to fully and fairly present his civil rights case to the
trier of fact.
appellate court's holding that the superior court's inherent authority gives it
the power to grant Goldstein's request, even if this court rejects that
Goldstein's request under Penal Code sections 924.2 and 929. Penal Code
for the purpose of verifying the truth and accuracy of a witness's testimony.
Meanwhile, Penal Code section 929 authorizes the release of raw grand jury
materials from a watchdog grand jury investigation if there has been court
approval and the identities ofwimesses are protected. The release of the
jailhouse informant grand jury materials to Goldstein for use in his civil
rights case is fully consistent with the statutory scheme for grand jury
STATEMENT OF FACTS
probable cause, and falsely imprisoned, for a crime that he did not commit.
Marines who was studying engineering at Long Beach City College, had no
than 24 years in.prison before his conviction was reversed on habeas corpus
shared a cell together. See id. at 486. This false statement was either
testimony. (See id. ¶¶ 27, 30, 32.) Because information on Fink's history as
eight years earlier in United States v. Giglio, 405 U.S. 150 (1972)--the
deputy district attorney who prosecuted Goldstein was unaware that Fink
lied about these issues on the stand, and Goldstein's defense attorney had
no specific evidence with which to impeach Fink. (See id. ¶¶ 30, 33.)
Grand Jury issued a report finding that, for more than a decade, Los
falsely testify that they had received confessions from criminal defendants
whose cells they were placed in. Goldstein, 154 Cal.App.4th at 487. The
Grand Jury specifically found that the Los Angeles County District
informed declination to take the action necessary to curtail the misuse ofjaiI
County Superior Court issued a standing order stating that the grand jury
order indicated that the materials were not "to be viewed, inspected or
Since this time, the presiding judge of the superior court has on at
least two prior occasions relied on this standing order to direct the superior
court archives to produce these grand jury material to judges presiding over
the Grand Jury in its investigation into the misuse ofjailhouse informants,
[i]t was the intent of the Grand Jury that the underlying
materials upon which the Report was based be made available
to anyone affected byjailhouse informant abuses as may be
necessary to pursue their remedies. This was a reason for the
records to be preserved.
federal magistrate who recommended his release found that the testimony
of the informant who testified against him was unreliable as a whole and
was a clear example of the sort of informant testimony addressed by the Los
Angeles County Grand Jury: "[I]t is readily apparent to this Court that Fink
fits the profile of the dishonest jailhouse informant that the Grand Jury
District for the Central District of California, stating causes of action under
the federal civil rights statutearising from his over 24 yearsof wrongful
are directly on point with the allegations in Goldstein's civil rights suit. In
line with the findings of the Los Angeles County Grand Jury, Mr. Goldstein
has alleged that the Los Angeles County District Attorney's Office, the
signific .ant benefits, and did not disclose these benefits to the court, the
defense, or even the line deputy district attorney using the informant's
from the superior court almost two years ago, on February 1, 2006.
the grand jury materials and offered to enter into a protective order limiting
his use of the materials to the narrowest scope possible and guarding against
Superior Court Counsel and then withdrawing it and filing a motion before
and explained that such findings would be necessary to litigate this issue in
federal court if the superior court refused to grant him access to the
On March 22, 2007, well over a year after Goldstein had originally
requested access to the grand jury materials, the superior court denied
Goldstein's request access to the grand jury materials, hoIding that it lacked
authority under California law to release the materials. (Id. ¶ 50.) It denied
Goldstein access to all of the materials, even the indexes and summaries
that were prepared to help facilitate litigants' access to these material. (Id.)
It did not find that there was any specific need to maintain the secrecy of
specific secrecy concerns raised by the materials to help the federal court
generally, id.). On August 23, 2007, the appellate court granted this writ of
4 On March 23, 2007, after his motion was denied the superior court,
Goldstein served a second federal court subpoena on the superior court.
(Writ Pet. ¶ 53.) This subpoena is still outstanding. The federal court has
delayed acting on it, as a matter of federal-state comity, until Goldstein's
state court proceedings are resolved. (Writ Pet. ¶ 55.)
10
mandate, holding that the trial court had inherent authority to release these
materials under the standards of Douglas Oil Co. v. Petrol Stops Northwest
Further, it held that if the superior court did not release the materials it was
the materials in order to facilitate federal court review of the issue. ]d. at
496.
ARGUMENT
will be deprived of the opportunity to fairly present his federal civil rights
case and the trier of fact will be deprived of the evidence it needs to grasp
the math of who is responsible for the grave injustice inflicted on Goldstein.
Goldstein does not seek access to the grand jury materials for idle
purposes. He lost more than 24 years of his life to the lies of ajailhouse
informant and the practices of law enforcement agencies that allowed these
federal court specifically found that the jailhouse informant who testified
against him "fit the profile of the dishonest jailhouse informant" that is the
(2007) 154 Cal.App.4th 482, 487. The period of the grand jury's
11
materials contain the evidence that is needed to demons_ate the full extent
Jury conducted, by its own assessment, the most comPrehensive inquiry into
it heard testimony from 120 witnesses and received 147 exhibits into
evidence. (Writ Pet. ¶ 16.) There is no way that Goldstein, 17 years after the
grand jury investigation, can obtain close to the type of the evidence that the
Grand Jury had available to it. Witnesses who would otherwise be called to
testify in Goldstein's case are dead or otherwise unavailable, and for many
of these individuals (such as the jailhouse informants and lower-level st_ "_f
of Long Beach and the County), the only formal statements they ever made
in regard to the jailhouse informant system may have been before the Grand
Jury. Without this testimony, Mr. Goldstein will be denied the opportunity
testimony before the Grand Jury is needed to ensure the accuracy and
policies, these policies, as this Court has recognized, "must be made to yield
to some extent in order to accommodate the demands of truth and faLrness
12
O
appropriate balance between the policies of grand jury secrecy and the legal
endorsed by the United States Supreme Court in Douglas Oil Co. v. Petrol
Stops Northwest (1979) 441 U.S. 21--a case that this Court has approvingly
federal courts are identical. See id. Indeed, in Daily Journal Corp. and
McClatchy Newspapers, the cases most heavily relied upon by the County,
this Court approvingly cites and quotes Douglas Oil when explaining the
jury secrecy in both the federal court system and in California. Indeed, as is
discussed more throughly below (infi_a § II.B), it seems clear that some
version of this balancing test has been being routinely applied by California
A.
California Litigants Should Have the Same Rights to
Access Grand Jury Materials as Federal Court Litigants.
litigants in the California courts will not be able to access California grand
jury materials that litigants in federal court can access. The parties do not
dispute that federal law authorizes a litigant to access grand jury materials
when he or she has demonstrated that a particularized need for the materials
outweighs the need to maintain the veil of secrecy. (See County Counsel
13
Opening Br. at 20-21.)
whether state law forbids disclosing the material. (See County Counsel
Opening Br. at 21-22.) However, in line with federal law, Goldstein first
interest in regulating the release of its own grand jury materials. See, e.g.,
Camiolo v. State Farm (3rd Cir. 2003) 334 F.3d 345, 357-60.
pursue access to the jailhouse informant grand jury materials through the
federal courts even if his state court request is ultimately denied, a state
court remedy is unnecessary and the interests of justice will not be injured
blocked from accessing these grand jury materials in the California courts
and can only obtain access through a federal subpoena, it wiII mean that
federal court litigants have a greater right to access California state grand
policies underlying California grand jury secrecy are, as this Court has
made so clear, identical to those of the federal system. See, e.g., McCIatehy
ability to regulate the disclosure of its own grand jury materials, since it
14
would effectively instruct federal litigants seeking California grand jury
materials to avoid the state court system altogether and go straightto the
federal court.
placed on them.
Since this Court has not directly addressed the issue presented by the
seeks. Both the federal courts and the courts of numerous other states,
recognizing that there are cases in which need overcomes secrecy, have
See, e.g., Metzler v. United States, (9tu Cir. 1933) 64 F.2d 203;
United States v. Socony-Vaeuum Oil Co. (1940) 310 U.S. 150, 233-34;
Dennis v. United States (1966) 384 U.S. 855; United States v. Procter &
Gamble (1958) 356 U.S. 677; U.S. Industries, Inc. v. United States District
Court (9th Cir. 1965) 345 F.2d 18, 21; Douglas Oil Co. v. Petrol Stops
Northwest (1979) 441 U.S. 211;Mannon v. Frick(1956) 365 Mo. 1203; In
re Jessup's Petition (1957) 50 Del. 530; State v. Beck (1960) 56 Wash.2d
474, 489-91; State ex rel. Ronan v. Superior Court In and For Maricopa
County (1964) 95 Ariz. 319, 332-33; People v. Di Napoli (1970) 27
N.Y.2d 229; State v. Carillo (1973) 112 R.I. 6, 11-12; Sutton v. State (1975)
25 Md.App. 309, 314-15, 334; State v. Greer (1981) 66 Ohio St.2d 139;
State v. Hartfield (1981) 290 Or. 583,592; Millican v. State, 423 So.2d 268
(Ala.Crim.App.1982); State v. Doliner (1984) 96 N.J. 236, 246-48; Euresti
v. Valdez (Tex.App. 1989) 769 S.W.2d 575, 578-79; Keen v. State (Fla.
!994) 639 So.2d 597, 600; Diamen 1,. U.S. (D.C.1999) 725 A.2d 501,532-
33; In re GrandJwy of Douglas County (2002) 263 Neb. 981,987-89;
Hinojosa v. State (Ind. 2003) 781 N.E.2d 677; State v. Higgins (La. 2005)
898 So.2d 1219, 1241; In re Investigatory Grand Jwy No.2004-01 (2006)
15
jurisdictions share with California the common law heritage of grand jury
secrecy and, as explained above, they share the same traditional set of
policies underlying this secrecy. These policies and traditions have not
prevented them from adopting a version of the particularized need test. This
is not because these jurisdictions are heedless of the policies and traditions
of secrecy, but because the particularized need test fully conforms with
Although the County vigorously argues that the laws of these other
California grand jury secrecy (Private Counsel Opening Br. at 5-7, 10-16),
the County's position is refuted by this Court's own case law. When
considering the relationship between the grand jury and the court that
supervises it, this Court has often _rned to common law, the law of other
states, and the federal law. See, e.g., McClatchy 1172-73 (turning to federal
case law after noting that "In 1973 Grand Jury we considered common law
to common law and the decisions of other states' courts to determine if, in
the absence of statutory authority, the court has the power to suppress a
Moreover, this Court has "rejected the contention that the California
grand jury [is] a 'purely' statutory body, wholly distinct from its common
50 Corm.Supp. 23.
16
Although the California grand jury may be a product of legislative
enactment this does not mean, as the County attempts to ague, Nat the
California grand jury is an institution wholly distinct from the common law
version of this institution shared with other jurisdictions. Indeed, this Court
has indicated that the principles of secrecy in the California grand jury
system are really those adopted from the common law. Daily orournal Corp,
In sum, the standard that the appellate court adopted for evaluating
test--is well tested and well suited to vindicate the important interests of
grand jury secrecy that are shared by California and many other
jurisdictions.
//
//
//
//
//
providing for a grand jury must have had in mind the grand jury
as known to the common law .... The Constitution of 1879 did
not attempt to change the historic character of the grand jury,
and the system its members had in mind was evidently the same
system that had come down to them from the common law. It is
in no sense a statutory grand jury as distinguished from the
common-law grand jury .... We must conclude ... that the
Constitution of 1879 when it refers to the grand jury refers to it
as it had always been known and understood prior thereto.
13 Cal.3d 430, 441(qutoing Fitts v. Superior Court (1936) 6 Cal.2d
230, 240-41 (omissions and bracketed text in original)).
17
II. THE APPELLATE COURT'S DECISION IS CONSISTENT
WITH CALIFORNIA LAW AND THE LONG STANDING
PRACTICE OF CALIFORNIA COURTS
Despite the County's claims, the appellate court's decision does not
Newspapers. The County reads these two cases as authority for the
holds that California courts lack the inherent authority to freely divulge
secret grand jury materials to the general public, e.g., for publication in
does not hold that California courts lack the power to provide grand jury
In fact, this Court explicitly defined the issue in Daily Journal Corp.
18
public, the superior court has the power to prohibit a grand jury from
the parties seeking access to grand jury materials were media outlets who
litigant to access grand jury materials for use at trial. In contrast, Goldstein
grand jury materials. (Private Counsel Opening Br. at 8-10.) The crucial
point ignored by the County is the use that Goldstein intends for the grand
grand jury materials than the publication of the materials in newspapers that
Sontag (1884) 64 Cal. 525. Goldstein does not seek to use the grand jury
materials to "gratify idle curiosity," but rather because he needs to use the
It be should noted that Penal Code section 929, which was enacted after
McClatchy Newspapers, now gives a grand jury the explicit statutory
authorization to release raw evidentiary materials under certain
circumstances and subject to judicial approval.
19
materials "in a court of justice", "for the purposesof public justice", and
"the protection of private rights." 64 Cal. at 526. Goldstein is seekingthe
use of materials in orderpresenthis casein a court of law; this is a use that
goesto the very essenceof the purposeof the civil justice and implicates a
much more compelling interest than the media's interest in public
disclosure
California statutory schemeitself (see inf!'a §§ II.B, ILD, and III), both of
which support _anting access to grand jury materials when the interests of
justice require their disclosure for use in an ongoing proceeding. See e.g.,
Holloway (2004) 33 Cal. 4th 96, 131; Penal Code §§ 924.1(a), 924.2, 924.6.
The County's briefs mistakenly blur all uses of secret grand jury
materials together.
i. County's Argument that Release of these Materials to
Goldstein Will Lead to Public Disclosure of the Materials
Is Wrong.
grand jury materials and use of the grand jury materials in litigation by
very limited and controlled by the terms of a protective order. First, even
before being disclosed to the litigants in this case, the materials will be
reviewed by the court to determine if the need for disclosure outweighs the
20
O
need for secrecy. Second, prior to disclosure at trial, the court could again
review the limited subset of materials that the litigants intend to use and
reapply the balancing test. At this point, the court could further protect
secrecy through redacting the material or limiting its use or even requiring
because the direct use of this testimony would violate the hearsay rule. 8
legislature under Penal Code section 924.2, which explicitly allows "any
consistent with that given by the witness before the court." Penal Code §
924.2.
The appellate court's decision will not effect a radical change in the
by the County. In at least two instances, this Court has explicitly indicated
that it supports releasing grand jury materials to litigants who have shown a
21
particularized need for these materials. As far back as 123 years ago, in Ex
Parte Sontag was dicta. But the County cannot deny that this Court's
statement in Ex Parte Sontag clearly shows that as early as 1884 this Court
had embraced the fundamental principle that California courts have the
particularized need test (the same test embraced in the appellate court's
decision):
In any event, as the high court was careful to point out, there
may be cases of urgent and particularized need in which [the
policies of grand jury secrecy] must be made to yield to some
extent in order to accommodate the demands of troth and
fairness in civil litigation. Although the 'indispensable
secrecy of grand jury proceedings' [citation] must not be
broken except where there is a compelling necessity [,] [there]
are instances when that need will outweigh the countervailing
policy.'
different grounds by, People v. Holloway (2004) 33 Cal. 4th 96, 131.
cases, both from this Court and the California appellate courts, implicitly
22
afftrming a trial court's power to release grand jury materials for use in
Appellate District Court describes at least five such cases: People v. Backus
courts have been in the practice of releasing grand jury materials for use in
The same grand jury materials that were denied to Goldstein have been
Court. Goldstein v. Superior Court (2007) 154 Cal. App. 4th 482, 488.1°
Moreover, it is evident that in 1990 the Los Angeles County Grand Jury and
the judge presiding over it preserved the grand jury materials at issue for the
23
O
specific purpose of making them available to future litigants. Id. at 487 II,
488 n.1. Clearly, in 1990 the Los Angeles County Superior Court believed it
had the power to provide these materials to future litigants.
Thus, affirming the appellate court's decision in the case at bar
would not cause a significant change in the practices of California courts.
On the other hand, if the County's position is adopted and the appellate
court is reversed, this would radically diminish the traditional powers of the
California courts and the accepted notion of access by litigants. 12
1179, devoting more than four pages of its brief to this case. (County
presented in the case at bar. It is not a case that in arty way discusses the law
_ "On August 30, 1990, the Superior Courtof Los Angeles County
issued an order stating the 'material accumulated and used by the 1988-89
Grand Jury and the 1989-90 Grand Jury in their investigations of the
jailhouse informants is to be kept secure by the court. [_ The material is not
to be viewed, inspected or copied except by order of the Presiding Judge,
Assistant Presiding Judge, or the Supervising Judge of the Criminal
Division.'"
a2 In fact such a ruling would call into question the propriety of the common
practice of disclosing non-testimonial grand jury material for use in motions
to vacate an indictment, since no express statutory authority authorizes this.
See People v. Superior Court (2000) 78 Cal.App.4th 403,421-22.
24
1256. Specifically, this case overruled a trial court's order directing law
proceeding had long-since been concluded and who had no other viable
actions pending in which he could use these records if they were _al"ned
over to him. )'d. After the trial court ordered this discovery, the prisoner
discovery than vice versa); however this Court found that the petition did
not even state a prima facie case for relief and summarily denied the
dispute that Goldstein seeks grand jury materials for use in a viable,
pending action: his federal civil rights case. Goldste'm's civil rights action
has already survived two motions to dismiss and been upheld by both the
federal district court and the Ninth Circuit Court of Appeal. Goldstein's
civil rights action is unquestionably viable and will proceed to trial, in sharp
already been released from prison because the jailhouse informant who
testified against him was -found to have fabricated his testimony. During
Goldstein's habeas proceeding the federal court specifically found that this
13 Los Angeles County Counsel, Los Angeles Colmty District Attorney, Los
Angeles County Sheriff, and the Attorney General. Id at 1256.
25
discovery for the purpose of an ill-defined, yet-to-be-filed action.
request that the superior court exercise its discovery powers at all. That is,
while the prisoner in Gonzalez asked the superior court to order the
Attorney General and other law enforcement agencies to turn over their
documents. Rather, Goldstein requested that the superior court release its
own records _4 records that are under the custody and control of the
superior court and whose release are allowed, under the terms of a standing
order of the Los Angeles Superior Court, with approva! of the Presiding and
before it. Id at 1257. It is decidedly not a case about the trial court's power
who intends to use the records in a pending action. For this reason, County
!!t
//
26
Dt
Despite the County's Claims to the Contrary, the Appellate
Court's Decision Does Not Conflict with the Statutory Scheme or
Upset the Principle of Separation of Powers.
In its briefs, the County argues that the appellate court's decision in
10.) This is simply untrue. The appellate court's decision is well within the
spirt of the statutory scheme, which attempts to balance grand jury secrecy
with the need to pierce this secrecy to achieve justice in court proceedings
,see, e.g., Penal Code §§ 924.1,924.2, 924.6., and vindicate the punic
Although the appellate court rejected the view that there is express
materials and instead found the requisite authority in the court's inherent
with the statutory scheme for grand jury secrecy. The appellate court held
that California courts have the inherent power to release _and jury
hardly explicitly denied the courts. While the Penal Code does prohibit
court order, no statutes specifically prohibit the court from releasing grand
27
that courts have the power compelling grand jurors to divulge grand jury
secrets for the purpose of a court proceeding. See Penal Code §§ 924. l(a),
924.2, 924.6.
17.) Far from overriding the legislative scheme for protecting grand jury
privilege, and thus, that the court's piercing of this secrecy is equivalent to
court from ordering a grand juror to testify regarding secret matters. On the
secret information when "required by a court." Penal Code § 924.1 (a); see
also Penal Code §§ 924.2, 924.6. The County cites to Daily Journal Corp.
evidentiary privilege for grand jury material (see County Counsel Opening
Br. at 17, n.53.), but Daily Journal Corp. does not make any such
Thus, when called to testify in court, grand jurors are not privileged
from revealing secret grand jury information. If the rule of secrecy does not
28
County Counsel also cites to the official information privilege, Evidence
Code section 1040, as a basis for its belief that grand jury secrecy is a form
statute explicitly prohibits the release of grand jury materials that Goldstein
qualified privilege. By its own terms it only applies where there "is a
outweighs the necessity for disclosure in the interest of justice." Cal. Evid
statutorily, adopts a form of the particularized need balancing test that was
request for grand jury materials. Thus, with regard to the official
same exception to the privilege that the appellate court held should be
applied in this case. It call not offend the principle of separation of powers
legislature.
legislature in devising the legislative scheme for the California _and jury.
29
III. EVEN IF THE COURT OF APPEALS DECISION IS
REVERSED, THIS COURT SHOULD FIND THAT A
CALIFORNIA TRIAL COURT HAS STATUTORY
AUTHORITY TO ALLOW GOLDSTEIN ACCESS TO THE
GRAND JURY MATERIALS
k.
Penal Code 924.2 Authorizes the Release of Grand Jury
Materials that Goldstein Requests
given by the witness before the court." Cal. Penal Code § 924.2 is
may require "a grand juror to disclose" testimony given before the grand
"transcripts" because at the time that this statute was originally adopted (in
1872) California grand jury testimony was not recorded. See People v.
30
proceedings began in 1897). Thus, at the time that the language in Penal
Code section 924.2 was drafted, the only way to know what had been said
by a grand jury witness was to call a grand juror to testify as to what the
wimess said. This is no longer true and Penal Code section 924.2 clearly
extends to the release of written grand jury transcripts as well as the live
trial (during the discovery phase of an action) so the litigant can adequately
prepare for trial. If the material could only be revealed during the trial
proceeding itself- when a live grand juror is before the court, this would
the witness before the court," in so far as they are sworn proceedings that
are used to develop evidence that will be placed before a court at trial.
solely to testimony given by a live witnesses before the grand jury. Under
both California law and federal law, trial courts are generally considered to
have great latitude and discretion in deciding which grand jury materials to
disclose (even though the question of whether grand jury materials may be
Stops North West (1979) 441 U.S. 211,223. Thus, Penal Code section
such as Goldstein, who have shown a particularized need for the materials.
31
Section 924.2 explicitly authorizes "any court" to order disclosure of secret
grand jury information, not merely that court which happens to have
custody over the materials. Cal. Penal Code § 924.2. If the court with
custody over the materials cannot release them to other courts (as the
standing order of the Los Angeles Superior court apparently prevents here),
the only way logically consistent way to apply Penal Code 924.2 is to see it
as requiring the court with custody over the materials (here, the Los
Penal Code section 924.6 was adopted much later than section 924.2 and
the legislature actively considered the problem that would arise where the
court with custody over grand jury materials was different from the court
where the materials would be used.
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the statute to adopt the procedure described in section 924.6. Grand jury
statutes should be read in a way that accords with common sense, avoids
jury materials should be a benefit reserved solely to the court that happens
Although Penal Code section 924.2 does not provide any standard to
guide a court's decision as to when to release grand jury materials, the most
restrictive standard that should be adopted is that laid out in Douglas Oil,
which was adopted by the appellate court in this case to guide the
determination of which materials Goldstein should be allowed to access.
Arguably, an even less restrictive standard should apply: the standard used
require the court to consider the interests of grand jury secrecy at all. Cal.
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for use in an ongoing court proceeding. Thus, this statute should be found to
Penal Code section 929 authorizes a civil watchdog grand jury, such
provided that the identities of witness testifying before the grand jury are
not disclosed to the public. Cal. Penal Code § 929.17 Although this section
was passed by the legislature several years after the dissolution of the grand
jury that investigated the jailhouse informant scandal, this section can and
jury materials..
Nothing in the legislative history of section 929 suggests that it should not
34
be applied retroactively. (See Legislative History, Exhibit W to Writ. Pet. at
396-408.) The primary purpose of passing this statute was to ensure that
In the case at bar, it is clear that the grand jury conducting the
jailhouse informant investigation (and the judge presiding over it) intended
special counsel appointed to assist the Grand Jury in the jailhouse informant
investigation, the material was indexed and preserved separately from other
disclosure in the hands of the grand jury, it seems evident that the grand
litigants. Although section 929 had not yet been enacted when this grand
jury was dissolved, the basic perquisites of the law are met- the Los
Angeles County Grand Jury intended to disclose the material and the
Presiding Judge sought to limit the scope of the disclosure to protect those
case would not even be a retroactive application of the law, but rather a
The elements are met since section 929 does not require the grand jury to
have made the decision to disclose the materials after 1998 (when the law
35
was passed), but only that it made a decision to disclose the materials.
section 929 can and should be applied retroactively. See People v. McAlister
(Cal.Ct.App. 1976) 54 Cal.App.3d 918, 925. There are three factors that
purpose to be served by the new law, (2) the extent of reliance on old
standards, and (3) the effect on the administration of justice that retroactive
section 929. The first factor (the purpose of the rule) is by far the most
important. Id. Section 929's purpose was to facilitate the work of watchdog
exact same abuses that the grand jury investigation focused on and (2)
jailhouse informant grand jury did not adversely rely on old standards.
the Grand Jury and presiding judge in 1990 clearly thought that they did
have the power to make these materials available for future litigants (since
the way the materials were organized demonstrate an intent and awareness
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that the materials could be disclosed for future use), so these witnesses
could not have detrimentally relied on the expectation that the materials
also weighs in favor of disclosure in this situation since the materials will
record to the court in Goldstein's civil rights case and it would not be
396-398.) Goldstein's civil rights case seeks to redress precisely the same
governmental abuses that the relevant grand jury investigation was focused
be reduced to a dead letter upon its conclusion- that all of the carefully
forever locked away and made inaccessible for use in combating the wrongs
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the Grand Jury labored to expose.
outside of his civil rights case of the "name of any person, or facts that lead
to the identity of any person who provided information to the grand jury,"
Penal Code § 929, except to the extent necessitated by use of the evidence
at trial. Notably, almost all of the release of this information would occur at
would be being used as a basis to verify the accuracy and troth of the
wimesses would be hearsay and thus could only be used for impeachment or
refi'eshing recollection).
inappropriate under state law. (County Counsel Opening Br. at 20-23.) The
materials through state court channels "does not give the state courts a veto
over disclosure in [a] federal civil rights case." Socialist Workers Party v.
Grubisic (7 _ Cir 1980) 619 F.2d 641,644. All federal case law of which
Goldstein is aware supports the power of the federal court to override state
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grand jury secrecy laws for the purposes of a federal proceeding.19
appeal's decision on state law grounds, order the state court to review the
materials and apply the Douglas Oil test. Alternatively, .this Court can
findings on the issue of the need for secrecy so that the federal court can
Since his first letter to the Superior Court, Goldstein has requested
the Superior Court either disclose the grand jury materials or make findings
regarding the need for secrecy so that the federal court would be in a better
The appellate court ordered the superior court to cooperate with the
federal court by reviewing the grand jury materials and creating a written
This propriety of this portion of the appellate court's decision has not been
raised as an issue for review. The state court clear has a duty to cooperate
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with the federal court in carrying out the implementation of federal law.
See, e.g., Estate of Lindquist (1944) 25 Cal.2d 697, 704-05. Indeed, this
independent source of authority for the superior court to disclose grand jury
appellate court opinion should be upheld to the extent that it orders the state
court to review the materials under federal law in order to facilitate
CONCLUSION
For the foregoing reasons Goldstein requests that the appellate court
decision be upheld. If this Court rejects the appellate court's holding that
the trial court has inherent authority to release the grand jury materials at
issue, Goldstein requests that this Court find that statutory authority exists
under Penal Code sections 924.2 and 929 to grant this request.
Finally, regardless of the this Court's holding in vis-a-vi the power of the
state court to release these grand jury materials, Goldstein requests that this
Court hold that the state trial court is required to cooperate with the federal
court in reviewing the materials and releasing them to the extent demanded
by federal law.
By:
Attorneys
Thomas
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CERTIFICATE OF WORD COUNT
The text of this Answer Brief consists of 11,579 words as counted by the
MATTHEW N.
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PROOF OF SERVICE
3 McLANE & BEDNARSKI, LLP, 128 North Fair Oaks Avenue, Pasadena,
6 Law Offices of KAYE, McLANE & BEDNARSKI, whose partners are members
7 of the Bar of the United Stabes District Court for the Central
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*SEE SERVICE LIST ATTACHED*
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:a Aguilar
26'
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SERVICE LIST
1
Theresa M. Traber
2 Traber & Voorhees
128 N. Fair Oaks Avenue, Suite 204
3 Pasadena, CA 91103
(Co-Counsel for Petitioner Thomas L. Goldstein)
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Belinda R. Mayes, Esq.
5 Principal Deputy City Attorney
OFFICE OF THE CITY ATTORNEY
6 333 West Ocean Boulevard, Ii th Floor
Long Beach, CA 90802-4664
7 (Attorney for Real Parties in Interest
the City of Long Beach and Logan Wren)
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Thomas J. Feeley, Esq.
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LAW OFFICES OF THOMAS J. FEELEY, P.C.
10 600 Wilshire Blvd., Suite 900
Los Angeles, CA 90017
11 (Attorney for Real Party in Interest William McLyman)
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SERVICE LIST
1
D. Brett Bianco
2
Court Counsel
3 Los Angeles Superior Court
Iii N. Hill Street, Room 546
4 Los Angeles, CA 90012-3014
(Attorney for Los Angeles County Superior Court)
5
Honorable Peter Espinoza
6 Los Angeles Superior Court
Department 123
7 210 W. Temple Street
Los Angeles, CA 90012
8
Clerk
9
Second Appellate Court, Division 3
10 300 N. Spring Street
Los Angeles, CA 90012
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