Metropolitan News-Enterprise
Tuesday, May 7, 2002
Page 9
Perspectives (Column)
An Open Letter to District Attorney Steve Cooley
By ROGER M. GRACE
Hon. Steve Cooley
District Attorney
Criminal Courts Building
Los Angeles
Dear Mr. Cooley:
These words appear on
the Office of Los Angeles County District Attorney website:
“Those who are charged
with enforcing the laws of the State of California must themselves scrupulously obey the law. They
must lead by example, and that example must be based on principles of honesty,
integrity, credibility and accountability.”
I agree with those
words. Up until last Thursday, I would have thought that you did.
But last Thursday,
investigators from your office—acting with your knowledge and approval—invaded
our newspaper office like storm troopers, ejected our staff from the premises,
and began touring and diagramming the rooms, ascribing a number to each, in
preparation for an office-wide search. Our operations were halted for three
hours.
That conduct was
unlawful. You and your troops failed to “obey the law.” And liability on your
part exists, as I’ll discuss in a moment.
What is worse than the
intrusion itself, however, is that you, personally, as well as members of your
staff, proceeded to rationalize what had happened, abandoning the duty to
display “honesty, integrity, credibility and accountability,” and publicly
lying.
You lied that we had
promised cooperation if presented with a court document. You lied that there
was no intention on the part of your office to search our newsroom.
The first lie
was that we promised cooperation if a legal document—implying any legal
document—were served. That is false.
My wife and
co-publisher, Jo-Ann W. Grace, had talked two to three weeks earlier with an
investigator from your office, Kimberly Riddle. The investigator wanted
documents showing what law firm had placed a notice of an intent to circulate a
recall petition in South
Gate.
Jo-Ann offered to confirm the identity of the law firm if Riddle already knew
it, and volunteered that we would provide the documents in response to a
“subpoena.” The pledge to honor a subpoena was repeated by her in a subsequent
conversation with your press officer, Sandi Gibbons. And indeed, if a subpoena
had been sent to us, there would have been prompt compliance. However, Jo-Ann
never promised, expressly or impliedly, to be cooperative if you resorted to
the rash, bizarre, and outrageous tactic of commissioning the service of a
warrant for the search of our entire premises. No mention was ever made of the
prospect of your office pulling such a bonehead maneuver.
I do realize that your
office did not anticipate our raising a fuss when the warrant was served, and,
to the contrary, envisioned the materials being turned over with a smile. That
was a blunder. To journalists, occurrences of newspaper offices being searched—which,
fortunately, are quite rare—are abhorrent. A subpoena for business records is
one thing; searching a newspaper office, and potentially seeing unpublished
information and notes revealing the identities of confidential news sources, is
quite another. The service of a warrant for the search of our newspaper office
was an extreme and bellicose act which only a naïve dolt would expect to draw
cheerful cooperation. But I do acknowledge that such was the expectation of
those in your office.
Once we balked, however,
and the intention was formed to proceed with the search, the clearly manifested
intention was to search the entire premises.
This brings us to the second
lie: that a search of the newsroom was not contemplated.
That’s belied by the
facts.
The warrant you secured,
the warrant that dictated the breadth of the search if your supposition of
acquiescence proved errant, did not exclude the newsroom. It said:
“The search is to
include all rooms, safes, locked boxes, files, desks and other parts therein,
the surrounding grounds, vehicles, storage areas, trash containers and
outbuildings of any kind located thereon; any containers including all purses
and wallets found in the care/custody and/or control of ADVERTISEMENT,
ACCOUNTS RECEIVABLE, EDITING, and/or ANY OFFICE WHICH CAN PROVIDE INFORMATION
ON ALBRIGHT, YEE AND SCHMIDT PLACING PUBLICATIONS ON RECALL OF SOUTH GATE CITY
COUNCIL MEMBERS.”
Do you see the word
“EDITING” there?
Utterances that
morning—one of which was in your presence and not contradicted by you—were to
the effect that the newsroom was not off limits to the searchers.
Reviewing the events of
Thursday morning…it was shortly before 9 a.m. when my wife and I were contacted at home by
the public notice supervisor, Pamela Putnam, and told of the search warrant. As
I was talking with Pam, Jo-Ann imparted to me her supposition that the
supervisor had misconstrued the document and that it was merely a subpoena. I
asked Pam to read the heading on the document. She read it aloud. It was a
search warrant.
I asked that she convey
to the two investigators that they would have to search. (By the way—and this
is a relatively minor matter—your press release later in the day quoted you as
saying: “[E]ditor and co-publisher, Roger M. Grace refused to cooperate with a
lawful search warrant.” Putting aside for the moment whether the warrant was
“lawful,” there was no “refusal to cooperate.” A search warrant does not order
a person in possession of enumerated articles to surrender them; it authorizes
a search for such articles. In no way was execution of the warrant impeded by
me or anyone acting pursuant to my instructions. Can you grasp that
distinction?)
Pam phoned back. One of
the investigators wanted to talk to me. I spoke to him in not-so-gentle terms
(employing a particular vulgarism I am not prone to use and find repulsive),
imparting that we had offered to produce the records in response to a subpoena,
but would not cooperate with a search warrant.
Jo-Ann and I arrived at
the office about a half hour later. Our staff was on the sidewalk outside the
building, having been ordered by your investigators to go outside and not to
wander. These are Gestapo tactics.
And herein lies the
major illegality in the conduct of your office. The exclusion of the staff from
the premises, inevitably entailing a delay in newspaper production, was not
authorized by the search warrant and constituted a blatantly impermissible
governmental stoppage of journalistic operations.
The Los Angeles Times,
in its editorial Saturday, put it well in observing: “Cooley’s invasion of the
Metropolitan News evokes images from countries where newspapers either tow the
government’s line or find their offices padlocked and their reporters jailed.”
My wife and I waved at
the staff as we drove past our office at 210 S. Spring Street, turning into a
garage south of our building, driving through it, crossing an alley, and
turning into our parking lot. We entered the building from the rear, and were
greeted by a cadre of investigators. Over the next several minutes, they sought
to persuade us to surrender the materials. One of them told me that in light of
the size of the premises (approximately 30,000 square feet), it would take two
to three days to search the “entire” office. We declined to provide documents
in response to the search warrant—which we did not read (what was the
point?)—and were, as the others, ejected.
Just as you were naïve
in thinking we would accommodate a search warrant, I was naïve in supposing you
would not countenance a search of a newsroom, and that what was unfolding was
without your knowledge. I wanted to talk to you. I couldn’t phone from my
office; I had been barred from it. An employee offered to let me use her cell
phone, but I did not want to converse with you with the background noise of
cars whooshing by. I decided to drive home and phone from there.
Driving home, I
formulated a battle plan: 1.) talk with you and attempt to cause you to listen
to reason and call off the search; 2.) if that effort proved unsuccessful, bat
out on my home computer a petition to be filed in the Court of Appeal for a
“hot” (emergency) writ; 3.) summon the staff to my home and, using my computer
and Jo-Ann’s, proceed to put together some semblance of a journalistic product
and—if issuance of a writ did not intervene, causing our readmission to our
office—have the “newspaper” run-off at Kinko’s on 81/2-by-11 sheets and stuffed
into our news racks to avoid missing an issue.
While I was en route
home, Jo-Ann was invited back into our own building. Assistant District
Attorney Peter Bozanich and Deputy District Attorney David Guthman wanted to
speak with her by telephone. They talked. The impasse remained.
From home, I got you on the
line. You put Bozanich and Guthman on the speaker phone with you.
You pointed out (as your
investigators did at our office) that a subpoena was not available to your
office because a case had not yet been filed, and that no means of compelling
production other than a search warrant existed. I gathered that you expected
that to be the end of the matter. It wasn’t.
I extemporaneously
grappled for an alternative means of your gaining access to the documents. You
had no interest in compromising. You saw no need to. “We have a search
warrant,” you said flatly.
Your theme was that
there would be no search, no inconvenience, if we simply produced the
documents. The point you missed was the threat of a search was wrongful.
Perhaps you still don’t grasp that. Do you understand that investigators cannot
secure information from a person by threatening to beat him if he does not make
the disclosures? Or would you shrug your shoulders and say that all the man had
to do was simply to talk, so that the nature of the threat was immaterial?
I protested that the
only conceivable purpose in excluding our reporters and press crew from the
premises was out of spite for our non-cooperation. I mentioned that it was not
“reasonably conceivable” that reporters would have the documents in question in
their desk drawers. Guthman piped up with the comment: “We don’t know that.”
(Unbeknownst to me then
was that Jo-Ann had, in her conversation earlier with Guthman and Bozanich,
uttered a complaint similar to mine. She declared that we had agreed to honor a
subpoena; a search warrant was something quite different, potentially entailing
a search of reporters’ desks—which was legally impermissible. She was told by
Guthman that the investigators would search every drawer in the office.)
As my chat with you and
your seconds continued, Guthman made another asinine remark and I responded
that I couldn’t deal with this “idiot.” You put on a good show of loyalty to
your troops by proclaiming, with indignation, that there were no idiots in your
office. On that point, we differ.
I mentioned that Jo-Ann,
in talking to Riddle a few weeks ago, had suggested that if Riddle thought she
knew what law firm had placed the notice, she reveal this and, if she were
right, Jo-Ann would confirm the fact. You responded that you didn’t need
confirmation—“We know the name of the law firm,” you told me—and said that what
you needed was tangible evidence.
At that point, I
mentioned that if you were not seeking to ascertain from documents in our
possession the law firm’s identity, we might be able to work matters out. You
were not interested in pursuing any compromise. You simply wanted the papers
turned over in response to the search warrant.
You left to return to a
meeting. Guthman made another stupid remark, and I suggested it would be more
productive if the speaker phone were turned off and I talked solely to
Bozanich. It did turn out to be productive. Bozanich advised me that the law
firm’s name was mentioned in the search warrant. I did not have a copy before
me, nor did he. He said the firm was “Aldrich, Yee and Somebody.” I advised him
that if that proved correct, we would probably turn over the documents on the
basis of having no privacy interest of a customer to protect. I conferred by
phone with Jo-Ann; it turned out that Bozanich had the name almost right—it was
Albright, Yee & Schmit; Jo-Ann and I were in agreement that the documents
should be provided, and, as I drove back to the office, they were.
As Sandi Gibbons
recounted the events to our associate editor, Robert Greene, I was belligerent;
everyone was ousted from the premises; Jo-Ann arrived, and cheerfully turned
over the documents.
You were quoted in your
Thursday press release as saying this:
“[W]hen investigators
arrived Thursday morning, editor and co-publisher, Roger M. Grace refused to
cooperate with a lawful search warrant. A short time later, however,
co-publisher Jo-Ann W. Grace fully cooperated with the investigators and gave
them the requested documents.”
You probably think that
this favorably portrays Jo-Ann as the “good guy.” It doesn’t. It’s a false and
defamatory depiction, casting her in the light of an airheaded publisher who
would turn over, blithely, anything government asked for; it implies that she
was oblivious to the affront to the First Amendment inherent in the search
warrant.
When we learned on
Thursday morning that a search warrant had been served, Jo-Ann found this as
repulsive as I did. She expressly imparted to Bozanich and Guthman her view
that a search of reporters’ desks would be constitutionally impermissible.
Production was made,
through our joint decision, for the simple reason that what was sought were
business records, not journalistic materials, and there was no need to protect
the identity of our customer because the identity was already known to you.
The false recitation of
facts by you would tend to demean Jo-Ann in the eyes of colleagues in the
newspaper profession. Have you ever heard the word “libel”?
Let’s look at the law
relating to searches of newsrooms—something you should have done before sending
your goon squad to seize possession of our office.
In 1978, the U.S.
Supreme Court held in Zurcher v. Stanford Daily, 436 U.S. 547, that a search of a
newsroom is not precluded by the First Amendment and that the search need not
be preceded by a refusal to honor a subpoena. The court said at 565-66:
“[T]he prior cases do no
more than insist that the courts apply the warrant requirements with particular
exactitude when First Amendment interests would be endangered by the search. As
we see it, no more than this is required where the warrant requested is for the
seizure of criminal evidence reasonably believed to be on the premises occupied
by a newspaper. Properly administered, the preconditions for a warrant—probable
cause, specificity with respect to the place to be searched and the things to
be seized, and overall reasonableness—should afford sufficient protection
against the harms that are assertedly threatened by warrants for searching
newspaper offices.
“There is no reason to
believe…that magistrates cannot guard against searches of the type, scope, and
intrusiveness that would actually interfere with the timely publication of a
newspaper. Nor, if the requirements of specificity and reasonableness are
properly applied, policed, and observed, will there be any occasion or
opportunity for officers to rummage at large in newspaper files….”
The decision was widely
criticized as contravening the public interest by converting newsrooms into
hunting grounds for government investigators.
California responded that same
year by adding a provision to Penal Code §1524, which is now para. (g). It
provides: “No warrant shall issue for any item or items described in Section
1070 of the Evidence Code.” The Evidence Code section shields journalists from
contempt adjudications for refusing to disclose confidential news sources or
“any unpublished information obtained or prepared in gathering, receiving or
processing of information for communication to the public.”
I’ve read comments over
the last few days suggesting that §1524 might have applied to the documents in
our possession relating to the placement of the three recall petition notices.
Maybe I’m wrong, but I think the purpose of Evidence Code §1070, as well as the
state constitutional provision that mirrors it, is solely to protect materials
gathered for journalistic purposes (as well as allowing reporters to
safeguard sources), and not to protect purely business records.
In any event, Congress
also acted to limit the effect of Zurcher, enacting the Privacy
Protection Act of 1980. It provided in 42 U.S.C. § 2000aa that it is “unlawful
for a government officer or employee, in connection with the investigation or
prosecution of a criminal offense, to search for or seize” work products or
“documentary materials, other than work product materials, possessed by a
person in connection with a purpose to disseminate to the public a newspaper,
book, broadcast, or other similar form of public communication, in or affecting
interstate or foreign commerce.” Exceptions are listed which do not come into
play here.
The statute applies. The
materials sought by the DA’s investigators were in the possession of persons
“in connection with a purpose to disseminate to the public a newspaper.” The
MetNews is engaged in interstate commerce by virtue of its use of Associated
Press stories from around the nation. Lorain Journal Co. v. U. S. (1951)
342 U.S. 143, 152; Page v. Work (C.A.9 1961) 290 F.2d 323, 328; N.L.R.B.
v. Herald Publishing Co. of Bellflower (C.A.9 1956) 239 F.2d 410, 411
(C.A.9 1956); McComb v. Dessau (D.C.Cal. 1950) 89 F.Supp. 295, 297. It
is also engaged in interstate commerce based on its regular purchases of
newsprint and other supplies from sources outside of California and having a few
out-of-state subscribers.
A cause of action for
damages against officials breaching that section lies under §2000aa-6. That
provision denies governmental immunity to anyone other than a judicial officer.
(Are you paying attention, Steve? This means you.)
The search warrant was
unlawful. Liability lies.
Even under Zurcher,
infirmities would arise.
That decision requires
“specificity with respect to the place to be searched and the things to be
seized, and overall reasonableness.” There was specificity as to what was to be
seized; in that respect, it was, as you said in your press release, a “focused
and narrow search.” However, there was no specificity or narrowness with
respect to “the place to be searched.” The warrant permitted searches anywhere
in the office, and prying into any container including purses and wallets. That
exceeded the bounds of reasonableness.
Too, under Zurcher,
a magistrate is confined to authorizing newsroom searches which are not “of the
type, scope, and intrusiveness that would actually interfere with the timely
publication of a newspaper.” It follows that there may not be interference with
the timely publication of a newspaper in the implementation of the search.
Your invasion force
ejected our entire staff from our building. They were outside for three hours
(except Jo-Ann, who was allowed to re-enter). You had actual awareness of this.
This did interfere with the timely publication of our afternoon daily, the Los
Angeles Bulletin, which was printed three hours late. As of the time the
ejectment took place, there was the prospect of our newspaper office being shut
down for two or three days.
This was not
constitutionally permissible. This was a blatant affront to our First Amendment
rights, in the extreme. Liability lies under 42 U.S.C. 1983 for a deprivation
of federal constitutional rights.
Perhaps we were too
conciliatory, and should have sought a hot writ on the grounds that the warrant
was invalid and our exclusion from the office unlawful—a writ I suspect would
have been granted—and refused to surrender the documents until such time as
charges were filed against the suspects and a subpoena was served on us.
Maybe so.
Anyway, we didn’t follow
that course.
The question is: what
should we do now?
I have received calls
from friends advising: “Sue the bastards.” Two press associations have pledged
legal help to us.
Instituting an action
against you seems tempting.
To avert that, I ask
that no later than Friday at noon,
you do the following:
1. Issue an unqualified
public apology to us;
2. Publicly acknowledge
that your press release of May 4 contained inaccurate statements;
3. Require that every
attorney and investigator in your office—including you—attend an intensive
training session of at least two hours’ duration on avoidance of First
Amendment affronts; and
4. Secure and proffer to
us funds compensating us for the salaries of employees for the three-hour
period when they were idle on Thursday and for all over-time paid that day,
which totals approximately $3,000.
Act wisely. You didn’t
last Thursday.
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