Cooley’s Raid on Newspaper Premises Stemmed From Investigative Boner

Wednesday, November 17, 2004

Page 7

PERSPECTIVES (Column)

At Last It Emerges:

Cooley’s Raid on Newspaper Premises Stemmed From Investigative Boner

By ROGER M. GRACE

Aha!

At last it is learned what it was that the Office of District Attorney Steve Cooley was after when 11 armed investigators raided the premises of the Metropolitan News Company on May 2, 2002.

The raid coincided with those taking place throughout the county in connection with a probe of possible political corruption in the City of South Gate.

The immediate purpose conveyed at the time of the raid was to gain evidence as to the identity of the law firm that had placed a notice of intent to recall a South Gate official that was published in this newspaper. The ultimate purpose of gaining that information is now bared.

In Cooley’s motion for summary judgment, in our lawsuit against him stemming from the raid, it is explained:

“One aspect of the City of South Gate investigation involved the placement of an advertisement advocating the recall of an elected South Gate official in the Metropolitan News (‘Met News’) legal newspaper, allegedly paid for by a law firm using City of South Gate funds. The lead investigator on the City of South Gate investigation, Kimberly Riddle, sought to obtain billing records from the Met News which would likely establish who paid for the recall advertisement.”

In her declaration attached to the motion, Riddle said:

“During my investigation into the South Gate political corruption investigation, I sought to obtain billing records from the Metropolitan News which I believed would provide information regarding who paid for the recall advertisement.”

So that’s what they were after. They wanted to know if the ad had been paid for with city funds. This information is new, unexpected, and revealing. It was unknown because the defendant has obdurately refused to date to supply a copy of the affidavit in support of the search warrant, though the judge presiding in our case has left open the possibility of ordering production.

What utter incompetence has thus been confessed by Cooley’s office! It is now seen that no actual investigative purpose existed in connection with the raid.

Gaining evidence as to the identity of the law firm that placed the notice could not possibly reveal whether city funds were used to pay the charge if, in fact, that charge had not yet been paid.

And it hadn’t been.

That’s right, as of May 2, 2002, and for several weeks after that time, payment had not been made. The notice was placed by a law firm, and the MetNews extends credit to law firms.

The information that payment hadn’t been made would not have been difficult for Cooley’s office to garner. It is undisputed that Riddle contacted MetNews co-publisher Jo-Ann W. Grace (my wife) a few weeks prior to the raid. Riddle says in her declaration:

“In an effort to obtain the Metropolitan News billing records pertaining to the political corruption investigation, I contacted the Metropolitan News and spoke with co-publisher Jo Ann Grace, Ms. Grace indicated that, while she desired to cooperate, she could not provide the requested billing records because of the potential privacy implications.”

Cooley states in his declaration that he was told that Jo-Ann “had indicated a willingness to cooperate” but had “privacy concerns regarding the subject billing records.”

Jo-Ann, in her declaration of June 12, 2003, attached to our June 13, 2003 opposition to an anti-SLAPP motion by Cooley, said this:

2. In mid-April, 2002, I received a telephone call from an investigator for the Office of Los Angeles County District Attorney. She wanted documents showing who it was who had placed a legal notice with us which we published in the Metropolitan News-Enterprise. It related to a recall election in South Gate. I told her that if she would tell me who it was she thought had placed ther notice, I would confirm it if she were right and provide the documents. She was hesitant about supplying the information. Thinking that she might be under the impression that it was placed by some individual who was under investigation, and assuming the law firm which had placed the notice was not implicated in a political corruption probe, I volunteered that, if it would help her, the notice had been placed by a law firm. She was still hesitant. I told her we would supply the document if she would send me a subpoena or a formal demand on the office letterhead. (Actually, the term I used was “pocket subpoena,” a term with which I was familiar from my erstwhile days in the 1970s as an estate and gift tax attorney for the Internal Revenue Service.) She told me she was not authorized at that moment to divulge what law firm was under suspicion, but would explore that option and get back to me.

3. A few days later, I received a call from Sandi Gibbons, public information officer for the Office of District Attorney. She queried if we had to have a subpoena in order to be willing to turn over the documents, or [i]f some other instrument would suffice. I assured her that if they would tell us the identity of the law firm they thought had placed the notice, and we could confirm it, we would provide the documents, and would do so even in response to a demand set forth on their letterhead. I just wanted something in writing that would evidence a formal demand by a government entity so that we would not be “squealing” on a customer whose identity the investigators did not already know.

It was clear that Jo-Ann wanted to cooperate but, out of respect for the customer’s privacy interest, would not reveal the identity of the customer absent a formal demand.

An inquiry as to whether the charge for the publication of the recall notice had been paid or not, on its face, would in no way have implicated the customer’s privacy interest. In light of Jo-Ann’s cooperative attitude—as acknowledged by Riddle and Cooley—there is no reason to suppose she would not have responded to a question as to whether payment had been received. Under these circumstances, there is every reason to believe she would have responded that we had not been paid, and would have supplied a declaration under penalty of perjury to that effect.

Yet, no one connected with the District Attorney’s Office asked whether the charge had been paid. There was no inquiry before the raid on MNC’s premises, during the raid, or since.

Armed troops barged into a newspaper office, ejected the staff, and occupied the premises in order to search for records in the vain hope that they would lead to evidence showing that publication charges had been paid for with city funds. This drastic action was taken when, simply by asking, the District Attorney’s Office could have ascertained that no payment had been made, ergo no inquiry as to the identity of the law firm placing the notice or as to billing records was relevant.

A faulty assumption led to a fascistic maneuver. There is no excuse for the failure to make any effort to determine if the assumption was valid.

The futility of the investigation into the source of a payment when there was no reason to believe that there had been a payment points ineluctably to the conclusion that there was no valid investigatory purpose underlying the raid.

We turned over the billing records late that morning after it came out that Cooley already knew the identity of the law firm that had placed the notice, so that there was no privacy interest to protect. Had the name of the law firm been recited by Riddle or Gibbons, the documents would have been provided prior to May 2—though, as is now clear, the identity of the firm is meaningless since it had not made a payment for the publication.

Cooley knew in advance that a search warrant was to be served on our newspaper publishing company. He says in his declaration that he was advised of it during a staff conference on April 30, 2002, though proceeding to pooh pooh any meaningful connection with the decision.

There is no indication in his declaration that he made any inquiry as to whether the use of a search warrant in a newspaper office comported with statutory or constitutional law. As it happens, use of a warrant for a search of news premises absent the existence of any of the circumstances set forth in 42 U.S.C. §2000aa was unlawful, plainly and simply. So was the implementation of the warrant. All MetNews personnel were excluded from the premises, and an investigator said that the search might take two or three days. In light of obvious First Amendment concerns, Zurcher v. Stanford Daily (1978) 436 U.S. 547 cautioned against searches of news premises causing interruptions of newspaper operations. Yet, Cooley’s troops, with Cooley’s ratification, brought our operations to a halt, and the prospect loomed of missed editions of this newspaper as well as the Los Angeles Bulletin.

Cooley declares he was told at the staff meeting that we had agreed to provide documents if “legal process” were served on us. There is no indication by him that he sought or received an assurance from his staff as to an amenability on our part to respond cooperatively to a search warrant—a investigative tool which even Cooley should have realized is anathema to the Fourth Estate.

Moreover, there is no indication that he was given such information as would have satisfied a reasonable prosecutor that the documents were needed. Indeed, as shown, there was but a hunch that payment had been made from city funds without any effort to determine if payment had, in fact, been made.

For the district attorney to permit service of a search warrant on a newspaper office without satisfying himself that the warrant met any of the alternative criteria in the governing federal statute (such as imminent danger to life or limb or national security), or that that the newspaper had expressly consented to a search warrant and would not have sought a protective order if given advance notice of the intent to serve it, was rash and irresponsible. And to give the green light without even ascertaining if the documents sought would be relevant to the investigation reflected a heedlessness of the necessity of the press functioning in a free society without government obstruction.

And yet, he refuses to apologize.

On the day the search warrant was served, we balked. Cooley acknowledges in his declaration that in a telephone conversation with me, I “angrily denounced the use of a search warrant.”

Even if he had naively supposed on April 30, 2002, that we would have gleefully complied with a search warrant, he was, upon being disabused of that notion, unwilling to withdraw his troops. Knowing that newspaper operations were shut down, Cooley refused to order the vacation of our premises by an occupying squad of armed intruders.

And, he refuses to apologize.

Throughout Cooley’s motion and the attached declarations, reference is made to Jo-Ann having agreed to turn over documents in response to “legal process.” Quote marks surround the words “legal process” though the supposed quote is attributed to no one in particular. The inference, of course, is that Jo-Ann used the words, but they didn’t say that. As shown by her declaration, she used the term “pocket subpoena.”

Here’s the balance of the paragraph in her declaration in which she recounted the conversation with Sandi Gibbons:

At no time in that conversation, or at any other time prior to May 2, 2002, was the prospect of the service of a search warrant mentioned to me. Had such a prospect been mentioned, I would have indicated that while we were perfectly willing to provide the documents in respond to a subpoena or formal demand, or if we were satisfied that they already knew what law firm had placed the notice, we would react quite negatively to the service of a search warrant. The widespread negative reaction to the district attorney’s action which I have observed from the journalistic community nationally confirms my feeling that an abhorrence of newsroom searches pursuant to warrants is not an idiosyncratic reaction of our company, but is reflective of common sentiment among news organizations.

Cooley has admitted in discovery that Gibbons did not make express reference to a “search warrant.” She undoubtedly desisted from doing so because, as a person who has been in the news business for many years, she knows that a newspaper would regard a search warrant in decidedly negative light. (I worked in the same office as Sandi in 1970. She edited the City News Service wire and I put out the Los Angeles Enterprise there.)

Disingenuously, Cooley attempts to portray the service of a search warrant on us as having been in conformity with what Jo-Ann had agreed to in her conversations with Riddle and Gibbons. It wasn’t. He pulled that bit of deception in a press release on the afternoon of the raid, did so in a letter to the editor of the Los Angeles Times, and now does so in his motion.

Such truth-bending ill befits a district attorney.

Some of his recitations as to what was said in our telephone conversation, if not outright perjury, reflect an exceedingly poor memory.