Showing posts with label reputation. Show all posts
Showing posts with label reputation. Show all posts

Sunday, October 18, 2020

Grand jury secrecy is important, but not sacred

pixy.org (CC BY-NC-ND 4.0)

[UPDATE: As I was writing this piece on Friday, the Kentucky court released audio of the grand jury proceedings.  Read more at your preferred news outlet.]

A fight is under way in Kentucky over a grand juror's bid to speak out about what happened in the room in September when the grand jury rejected indictment for the killing of Breonna Taylor.  The attorney for "Anonymous Grand Juror #1" accuses the Kentucky AG of not telling the public the whole story.

Most of the news coverage, and some of the scholarly commentary, follows up report of the meta-litigation with a declaration about the hallowed secrecy of the grand jury and the extraordinary nature of a bid to compromise that secrecy.

That characterization slightly misses the mark.  What is extraordinary, but not unprecedented, about the case is that the bid to speak is coming from a participating grand juror, rather than an outside petitioner, such as an indicted defendant, a victim, or a media intervenor.

We should be protective of grand jury secrecy.  The grand jury is one of the few areas of American law in which our absolutist-tending free speech doctrine makes some concession to the protection of reputation, mostly to the benefit of the unindicted.  

At the same time, we should refrain from heralding grand jury secrecy as incontestable and absolute.  The tradition of grand jury secrecy inverts the presumption underlying the common law right of access to the courts.  Ample common law precedent demonstrates that grand jury secrecy is only a presumption—rebuttable, by definition. 

In 1951, the Supreme Court of Pennsylvania wrote ably on the issue while rejecting a defense bid to investigate the grand jury process that resulted in indictments for bribery.

In view of the large amount of literature that has been written concerning the origin and history of the Grand Jury as one of the administrative agencies of the criminal law employed for centuries throughout the Anglo-Saxon world it is wholly unnecessary to attempt to elaborate upon those themes. Likewise there is no need to stress the vital importance of the maintenance of secrecy in regard to the deliberations and proceedings of Grand Juries, for the policy of the law in that respect has been so long established that it is familiar to every student of the law. The form of the oath of secrecy to be exacted of grand jurors was prescribed in our own Commonwealth as early as the Frame of Government enacted by the Provincial Assembly in 1696, substantially the same as it had been set forth in 1681 .... Generally speaking, the rule is that grand jurors cannot be sworn and examined to impeach the validity and correctness of their finding if an indictment has been regularly returned.

[¶] It is true that some inroads have been made upon the rule of secrecy, with a resulting number of established exceptions. Thus a grand juror has been held to be a competent witness to prove who the prosecutor was .... Or to contradict the testimony of a witness as to what she testified to before the Grand Jury .... Or to testify that the indictment was based solely upon testimony heard by the Grand Jury in another case against another person .... 

As to whether the mandate of secrecy nevertheless permits disclosure by a grand juror concerning alleged improper acts or misconduct on the part of the prosecuting officer in the Grand Jury room there is considerable contrariety of opinion in the various jurisdictions, ... which naturally results from the fact that there are obviously valid reasons to support either view. 

[¶] On the one hand, to close the doors of the Grand Jury room so tightly that the actions of the prosecuting officer therein cannot be disclosed, however flagrant and unlawful his conduct may have been and however much it may have been responsible for the finding of a wholly unauthorized bill of indictment, would be unfair to the defendant thus indicted even though, if innocent, he could subsequently vindicate himself in a trial upon the merits; it would also permit an over-zealous official to use the power of his office and his influence with the grand jury as an instrument of oppression, with immunity from investigation. On the other hand, to allow such an investigation lightly to be had would afford an opportunity to every defendant to institute dilatory proceedings and divert the course of justice from himself to an attack upon the public officials charged with administering the law and thereby seek to make them the defendants in the proceedings instead of himself.

Commonwealth v. Judge Smart, 368 Pa. 630 (1951).

I don't know enough about the merits in the Kentucky case to opine on what the outcome should be.  The AG's memo is in circulation online, but I can't find the juror's initial petition.  I expect the court to make an informed decision that balances the just cause of secrecy with the also-just cause of accountability.  

If grand jury secrecy gives way, the sky isn't falling.

The case is Anonymous Grand Juror #1 v. Commonwealth of Kentucky, No. 20-CI-5721 (Jefferson, Mo., Cir. Ct. II Div. filed Sept. 2020).

[UPDATE, Oct. 21.]  Yesterday the court ruled that grand jurors may speak publicly.  This is the statement of Anonymous Grand Juror #1.


Tuesday, September 3, 2019

Lewinsky calls for online civility, will speak twice in South Coast Massachusetts this academic year

Goodman as Linda Tripp, Molly Shannon as Lewinsky, in
1998 (SNL). President Clinton's escapades were good business
for SNL, which released a Best Of collection in 1999.

Monica Lewinsky has become a public figure in a whole new light in recent years, leaving behind the scandal that took her name, rather than his, mostly to differentiate scandals.  As Time put it, "Monica Lewinsky" was once the butt of a joke, many jokes.  John Goodman playing Linda Tripp (see WaPo reemergence in 2018) made for instant-classic Saturday Night Live bits (see Tripp's later perspective and a brief recollection with Goodman).

The world has changed, #MeToo, and Lewinsky figures into it differently today.  She has described herself as an original victim of cyber-bullying, before it was a thing.  Aptly, she's become an outspoken advocate against it, and a mite more effective in that capacity than the present First Lady.  Lewinsky broke her relative silence in Vanity Fair in 2014 and subsequently became a VF contributor and Twitter personality.  John Oliver interviewed her on Last Week Tonight in his excellent program on "public shaming" (below) (cf. Jon Ronson's definitive 2016 treatment of the subject in his book, So You've Been Publicly Shamed, featured here on The Savory Tort in 2017).


Apparently Lewinsky's "second act" is only getting going.  Among her many projects, she is contributing to the fall 2020 season of American Crime Story, on FX, The Hill reported, in which Sarah Paulson will play Linda Tripp decidedly more darkly than John Goodman did.  Meanwhile on stage, Lewinsky has become an advocate for online civility.  Building on her 2015 TED talk, The Price of Shame, she's booked into an aggressive public speaking agenda.


I can't help but find Lewinsky to be a compelling figure.  Aside from her curious, mostly involuntary role in American history, she embodies the mass media's power to destroy reputations with the impunity the First Amendment affords.  Yet her story unfolded in the highest of political arenas, the American executive office, in which First Amendment values are most urgently implicated, and First Amendment absolutism is most persuasively justified.  Whatever the merits of the case that shaped her perspective, she shares today a meritorious message: If the internet can be tamed, to do more good than harm, it will be by people and their choices, not by law and regulation.

Lewinsky is slated to speak in South Coast Massachusetts in fall and spring.  On October 17, 2019, Lewinsky will give an endowed lecture at Bridgewater College (more from WHSV).  On May 15, 2020, Lewinsky will speak in the New Bedford (Massachusetts) Lyceum at the Zeiterion Performing Arts Center ("the Z"); tickets are on sale now.


Friday, August 23, 2019

Beijing internet court rules against ISP Baidu on posthumous defamation claim under PRC Tort Law

In a Chinese defamation case, the Beijing Internet Court has ruled in favor of the plaintiff and contrary to American tort norms regarding ISP immunity and posthumous defamation.

Sixth Tone reported on the suit "filed by the son of the late playwright, screenwriter, and composer Zhao Zhong" (赵忠).  The suit alleged that an anonymous user of Baidu's Baike, China's answer to Wikipedia, edited Zhao's biographical page to defamatory effect.  The edits by user "charming and beautiful woman" (Qiaonü Jiaren) criticized Zhao as a "thief" and cultural "traitor," and deleted the libretto of the opera Red Coral from his listed oeuvre.  The changes remained on the page for five years, from 2013 to 2018, until Zhao's family noticed and demanded correction.  Baidu reversed the edits.  The son nevertheless complained of negligence in Baidu's failure reasonably to moderate content and consequent reputational injury to the family.

The court ruled against Baidu.  Beijing tort lawyer Qu Zhenhong told Sixth Tone that Baidu's compliance with the defamation notice-and-takedown procedure of PRC Tort Law article 36 did not relieve the internet service provider of liability under article 6 for the defamation's five years in publication.  That approach deviates from the powerful ISP immunity of 47 U.S.C. § 230 in the United States—which has faced slowly mounting criticism both at home and in Europe.

A second deviation from American tort norms arises in the allowance of a defamation action by the family after the death of the person defamed.  Common law jurisdictions including the United States continue generally to observe the historic rule that defamation claims die with their claimants, though states are widely experimenting with the posthumous right of publicity by statute.  Cf. The Savory Tort on Defaming the Dead.

The court made clear that it approves of a family's ancillary defamation claim, not just a decedent's claim that persists after death.  "A negative social assessment of the deceased not only violates the reputation of the deceased, but also affects the overall reputation of the deceased's close relatives as well as personal reputation," People's Court News wrote in summary of the court's decision (Google translation). "Therefore, for any close relative of the deceased, they have the right to request the court to protect the right [of the] deceased, or to pursue the responsibility of infringing on their own reputation based on their close relatives."

By its publisher's description, Red Coral (Hong shan hu) "describes the story of the peoples who lived in the red coral island and fought against the troops of Chiang Kaishek. They cooperated with the Red Army and defeated the enemy with the guidance of the people's Liberation Army."  Red Coral was adapted to film in 1961 (DVD pictured).

Saturday, May 18, 2019

Boston Globe presses high court for access to secret criminal hearings

In fall 2018, the Spotlight team at The Boston Globethat Spotlight team—published a powerful exposé on "secret courts" (limited free access) in Massachusetts criminal justice.  Now a related case, argued May 7, is pending before the Commonwealth's Supreme Judicial Court.

Julian Assange supporters' sign in front of Ecuador embassy, London, Aug.
22, 2012 (by wl dreamer, CC BY-SA 3.0).
Secret courts are the zombie of First Amendment access in the judiciary. We kill them in constitutional litigation, think they're dead, and suddenly your state courts have been infected and overrun by a whole new horde.  More often than not, new secret court systems blossom to protect the rich and powerful—infamously such as one-time GE CEO Jack Welch whilst in divorce court—from the public scrutiny that attaches to the rest of us dregs, when anyone cares to look. That correlation makes secret courts' resilience a peculiarly American counterweight to our tradition of public justice in open courtrooms.

Yet I put "secret courts" in quotation marks, because it's not clear exactly what are these secret proceedings exposed by the Spotlight team.  They're called "show cause hearings" in Massachusetts law, but even the term "hearing" seems generous.  Under state law, in the absence of an arrest, a criminally accused is entitled to a "hearing" before the court clerk to determine whether charges should issue.  That means the clerk is second-guessing police before the case actually reaches court.

This happens tens of thousands of times per year, the Globe reported.  These "hearings" are not docketed and may leave no paper trail, so if charges are not filed, there is no official record left behind.  The statute that authorizes these hearings pertains principally to misdemeanors, but may be and is used for felony charges, too, in about one in eight hearings, the Globe reported.  The statute itself does not require secrecy, but that's how the process has shaken out.  The Supreme Judicial Court approved secrecy in these hearings, likening them in a 2007 decision to historically secret grand jury proceedings.  But these show cause hearings much more resemble the California preliminary criminal hearings that the U.S. Supreme Court held in 1986 must be open presumptively to the public under the First Amendment.

While the ostensible purpose of this process is to protect the reputation of accused persons while weeding out frivolous claims, it seems many clerks have turned these hearings into an ADR process.  Keeping the accused's name off the records is a bargaining chip to leverage apologies, restitution, or an informal kind of probation.  Outcomes in this vein can be positive for victim and accused; there's no disputing that.  But Spotlight also documented victims of crime and violence who felt their experiences were devalued in secret leniency.  No-charge results have proven problematic especially when emboldened accused persons have gone on to commit violent offenses.

And it's worse than that.  Because as tends to happen in secret justice, persons of privilege—wealth, political clout, social connections, mere representation by a lawyer, which is not required before charges, and maybe mere whiteness, based on disparate-impact statistics, according to Globe research—has a lot to do with what charges get weeded out without a record being made.  Moreover, the Globe reported:

The state’s 68 clerk magistrates at District and Boston Municipal courts operate with enormous discretion to halt criminal proceedings even though many have slender qualifications: About 40 percent of clerks and their assistants ... lack law degrees, one clerk magistrate did not go to college at all, and another has only an associate’s degree.

Often to the frustration of police, some clerks reject charges in big numbers.  "In 2016 and 2017, nearly 82 percent of cases never made it out of a secret hearing in Chelsea," the Globe reported.

Bills pending in the legislature would require a presumption of openness in these proceedings.  But the ACLU of Massachusetts, Greater Boston Legal Services, and the Harvard Legal Aid Bureau all come down on the side of privacy for accused persons.  This is an old story; the ACLU has been torn famously over access and privacy.  I don't mean to be access-absolutist about this, either.  In my view, a big part of the problem stems from our society's overuse of the criminal justice system (read: drug crime) paired with excessive, punitive consequences for criminal-justice involvement (cf. Ban the Box).

1780 Massachusetts Constitution
In the case now pending before the Supreme Judicial Court, the Globe seeks access to records of show-cause hearings in which no charges issued.  The Globe reasons that these court hearings cannot be erased utterly from the public sphere.  That logic is backed up by the Supreme Court's 1986 treatment of California preliminaries, in which media sought records after the fact of closed hearings, as well as clear circuit precedent in the intervening years condemning secret dockets as antithetical to constitutional access to information.  The Commonwealth argued on behalf of trial courts to uphold the grand-jury analogy, reasoning that properly closed hearings yield properly closed records.

I would like to see the SJC take into account that the Massachusetts Declaration of Rights is more expansive than the First Amendment.  Before the First Amendment was even a thing, the 1780 Massachusetts Constitution (my italics) recognized:

Art. XVIII. A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives; and they have a right to require of their lawgivers and magistrates an exact and constant observation of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681.  Watch the oral argument online at Suffolk Law.

Friday, August 25, 2017

Mass. App. upholds $2.9m 'actual malice' verdict over 'bitter feud' in local politics

The Range Feud (Columbia Pictures 1931)
The Massachusetts Appeals Court today rejected appeal of a defamation verdict.  The case is Van Liew v. Eliopoulos, no. 16-P-567 (soon available from the Reporter of Decisions), per Justice Blake.

The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property.  Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent.  The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters."  The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m.  The Appeals Court affirmed upon 26 statements.

Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy.  Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.

The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages.  Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive.  A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'"  The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."

Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor.  I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits.  The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."

The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness.  The $3m defamation verdict against Rolling Stone and its reporter in November  for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales.  Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so.  But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.

The Appeals Court's application of "actual malice" was workaday and workmanlike.  That's the kind of cool rationality we need in our courts, now more than ever.