Opinion
Criminal Case No. 00-CR-331-N
August 14, 2000
ORDER CONCERNING DISQUALIFICATION OF JUDGE
This matter is before the court on a document styled "Ex Parte Motion to Conduct Interviews of Discharged Grand Jurors (Under Seal)" filed by the Government in this case on August 10, 2000 (hereinafter, the "Motion to Interview"). Defendant Mark Hinckley was a member of Grand Jury 99-1. He stands accused in this case of bribery and obstruction of justice. The accusations arise out of his alleged offer to reveal matters occurring before Grand Jury 99-1 to Hassan Zaghmot and Alaa Douaidary, persons against whom Grand Jury 99-1 had returned indictments.
After reciting chronologically the events which culminated in the indictment of Mr. Hinckley and the subsequent discharge of Grand Jury 99-1, the Government's motion asks that I permit interviews of other grand jurors by agents of the Federal Bureau of Investigation and attorneys from the United States Attorney's Office. The Government suggests that two purposes would be served by permitting the interviews. First, the interviews are allegedly necessary "to further the government's criminal investigation of Mr. Hinckley." Motion to Interview ¶ 8.
Second, the interviews are alleged to be necessary to protect "the integrity of the judicial process." Id.
Why the Government has adopted the tactic of making this motion (on an ex parte basis) in its pending criminal case against Mr. Hinckley, rather than seeking relief by way of a motion in the underlying proceedings relating to Grand Jury 99-1, is not apparent. That tactical decision, however, has consequences. For one thing, it muddies the issue of whether the application may properly be considered ex parte. Where such a motion is made in the underlying grand jury proceeding, rule 6 expressly permits the supervising judge to close hearings and seal orders relating to grand jury proceedings "to the extent necessary to prevent disclosure of matters occurring before a grand jury." Fed.R.Crim.P. 6(e)(5), (6). Because the underlying grand jury proceedings are inquisitorial, not adversarial, they are necessarily ex parte. Where the motion is made in a pending criminal case, after the adversary process has commenced, the ex parte nature of the motion becomes more problematic. "[J] udicial proceedings are not normally ex parte." Illinois v. Sarbaugh, 552 F.2d 768, 773 (7th Cir. 1977). The Government has cited, and I have found, no rule or statute which unequivocally permits this type of motion in a pending criminal case to be made on an ex parte basis. An ex parte motion is inconsistent with an adversarial judicial proceeding because it deprives one party of notice and an opportunity to be heard and because it appears to place the judge hearing the proceeding in the position of doing something at the behest of one party, behind the back of the other party. Absent some rule or statute which expressly permits this ex parte application, I decline to consider it on this basis.
One of the purposes which, according to the Government, will be served by the interviews is even more problematic. As noted earlier, the Government claims that interviews of discharged grand jurors by the agents and attorneys "conducting the investigation into this case" (Motion to Interview ¶ 6) is necessary to further the Government's criminal investigation of Mr. Hinckley. I decline to sanction a procedure which places the court in the extraordinary position of allowing one side in this judicial proceeding to conduct an investigation designed to gather evidence against the other side. It is predictable that, when defendant discovers the existence of prosecutorial grand juror interviews (as he surely will), he will be able to make an equally valid claim that he needs interviews to deal with any evidence which the Government's interviews unearth. The Government has made no showing that it needs further investigation to bolster its position in this case or that such a need would justify subjecting grand jurors to interviews by both sides.
The Seventh Circuit's decision in United States v. Lamntia, 59 F.3d 705 (7th Cir. 1995), and related cases decided by judges in the Northern District of Illinois, United States v. Messino, 855 F. Supp. 955 (N. D. Ill. 1994); United States v. Li, 856 F. Supp. 411 (N. D. Ill. 1994); United States v. Mebust, 857 F. Supp. 609 (N. D. Ill. 1994); United States v. Coffey 854 F. Supp. 955 (N.D. Ill. 1994), do not support the approach taken by the Government here. True, the decision in Lamantia reveals that FBI agents and the United States Attorney's Office had interviewed grand jurors. The substance of those interviews was evidently revealed to the district court on an in camera (but not ex parte) basis — that is, the court examined materials which were not publically revealed, but it did so upon notice to defendants that it was conducting such an examination. See Coffey, 854 F. Supp. at 959. Nothing in the Seventh Circuit's decision or in any of the related district court decisions suggests that any court had, ex parte, permitted interviews, a primary purpose of which was to gather evidence against the offending grand juror.
I recognize that the Government has stated a second purpose: to protect the integrity of the grand jury and judicial process. I do not question this purpose, but the motion in its present form has the opposite effect. The Government's stated purpose is best served if the investigation is conducted by attorneys and agents who have had no contact with Grand Jury 99-1, so that no grand juror is put in the position of answering to agents or attorneys who have previously presented matters to Grand Jury 99-1 for a decision. At a minimum, the interviews can surely not be done by the agents and attorneys conducting the present prosecution of Mr. Hinckley.
Upon the foregoing findings and conclusions, it is ORDERED as follows:
1. The Motion to Interview is DENIED.
2. The court having declined to consider the motion on an ex parte basis, the clerk will forthwith send a copy to counsel for defendant.