Jackson Jambalaya

U.S. District Judge Keith Starrett told the U.S. Attorney to give up Department of Marine Resources public records sought by the Sun-Herald Friday.

The Gulf Coast newspaper sought copies of DMR financial statements as it investigated the state agency. DMR previously turned over the records to the State Auditor.  State Auditor Stacey Pickering refused to release the records, as he argued they were part of an investigation.  The Sun-Herald sued for their release in Harrison County Chancery Court.  Chancellor Jennifer Schoegel ordered OSA to turn over the records to the newspaper.  The U.S. Attorney then subpoenaed the records.  Mr. Pickering's office turned the records over to the feds.  The SH filed a motion for contempt of court against Mr. Pickering and also asked a federal judge to authorize their release.  The U.S. Attorney told the court they were part of the grand jury investigation, as he sought to block their release.  Judge Starrett had none of it as he ruled against the government Friday.  Judge Starrett slammed the federal government's arguments as he wrote:

The Government argues that Petitioners have not shown a particularized need to turn the DMR documents over to a newspaper – framing the argument as if the Chancery Court were not even involved. Petitioners’ particularized need, though, has less to do with the Sun Herald than it does with the Chancery Court, Mississippi public policy, and the rule of law. If the Court does not permit the State Auditor to disclose the DMR records, he will be unable to comply with the Chancery Court’s well-reasoned, valid order without subjecting himself to charges of contempt in this Court. FED. R. CRIM P. 6(e)(7). If he continues to abide by Rule 6's secrecy requirement, the Chancery Court’s order will remain unenforced, and the public records at issue will remain hidden from public scrutiny – nullifying the lawful authority of the Chancery Court and the Mississippi legislature which passed the Public Records Act. By any measurement, this result would be unjust....

“the invocation of grand jury interests is not some talisman that dissolves all” competing needs. Butterworth, 494 U.S. at 630, 110 S. Ct. 1376. If a grand jury subpoena always shielded otherwise public records from dissemination, the First Amendment guarantees of free speech and a free press would be significantly curtailed. Therefore, “the court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards” provided by relevant case law. Douglas Oil, 441 U.S. at 223, 99 S. Ct. 1667.

Many of the public interests in maintaining the secrecy of grand jury proceedings are irrelevant in this case. Indictments have already been issued, and this matter has been publicized throughout state media for months. There is little danger of tipping off potential targets to the possibility of indictment. In light of what has already been reported, any rational person involved in corrupt activities at DMR should expect to be the target of investigation.

Also, disclosure of the documents would not reveal the identity of grand jurors, grand jury witnesses, or those whom the grand jury investigated but chose not to indict. The documents are public records created by DMR. They contain no information about the grand jury’s deliberative process, the direction of its investigation, the witnesses or other evidence it considered, or the identity of its members. In fact, as discussed above, there is no indication in the record that the DMR records actually have been or will be considered by the grand jury.

The Government argues that publication of the DMR records – which is likely to happen if the Court permits the State Auditor to comply with the Chancery Court’s order – could negatively affect the trial in this matter. The Government contends that increased publicity could taint the jury pool, depriving Defendants of the right to a fair trial. This issue also concerns the Court, but the Chancery Court case and alleged activities of individuals at DMR have already been the subject of numerous reports in print, electronic, and broadcast media over the past several months. The disclosure of a federal investigation and indictments only increased the scrutiny. In light of the publicity already received by this case, inspection and publication of the DMR records by the press would have negligible impact.3 Regardless, denying the present motion would receive just as much publicity as granting it, and all parties will have a reasonable opportunity to question potential jurors during voir dire.

Finally, the Court notes the Government had access to the documents for well over a month, and Defendants had access to them for at least a week prior to the expiration of their briefing deadline. If the DMR records contain matters which should be shielded from the public, the Court could have inspected them in camera to determine whether such concerns had any merit. Neither the Government nor Defendants requested that the Court do so. (KF: Ouch. Judge just said government was not acting in good faith.)

In summary, most of the reasons for maintaining grand jury secrecy are irrelevant here. The DMR records would not reveal anything about the internal operations of the grand jury, and it is already public knowledge that the DMR is under federal investigation....

For all of the reasons stated above, the Court finds that even if the DMR records were “matters occurring before the grand jury” and subject to Rule 6(e)’s secrecy requirement, it would be appropriate to permit disclosure here.

Of course, the story published in the Clarion-Ledger today was the U.S. Attorney asking the judge to seal the records. No mention of the decision.