United States of America

Vol. 130

th

THE PUBLICATION OF JUDGE
WINNER'S OPINION

● Mr. ARMSTRONG, Mr. President, the events surrounding the publication of a court opinion issued by a Federal district judge in Denver, Colo., has been the subject of a number of recent news accounts and editorials. Briefly, the Justice

Department

sought and received a temporary restraining order blocking publication of an opinion rendered by Federal District Court Judge Winner. The fact that the Justice Department would seek, and another Federal court would grant such an order is remarkable. But, the temporary restraining order has been revoked and the opinion.. will be published in the near future.

However, in all this flap over the attempt to block publication, we should not lose sight of the larger issues raised by Judge Winner. In essence, he is blowing the whistle on questionable conduct of government prosecutors. After reading Judge Winner's decision, my first reaction was to call for hearings to shed additional light on the issues raised in his opinion. I understand that both the Federal district court and the 10th Circuit Court of Appeals have different aspects of this case under review. With that in mind, the proper course may be to wait for the findings from these hearings before we begin our examination of this matter and determine what action

Congress should take to insure protec

tion against government misconduct.

In the meantime, I comment to my colleagues the following articles and other accounts of this important issue: [From the Denver Post, Jan. 27, 1984) JUSTICE DEPARTMENT TRIES TO GAG JUDGE WINNER

(By William R. Ritz) The U.S. Department of Justice, in a move angrily derided as "blatant federal arrogance" and "unshirted censorship." is at tempting to stop publication of an opinion by a Denver federal court judge in which he accuses three federal prosecutors of miscon

duct.

The Justice Department's request for a temporary restraining order quietly was approved by the 10th U.S. Circuit Court of Appeals earlier this month. The order bars West Publishing Co. of St. Paul, Minn., from printing a decision by U.S. District Judge Fred Winner in the Federal Supplement, a hard-bound compilation of federalcourt decisions.

A decision by the appellate court on whether to make the order permanent could come as early as this week.

But the decree could be anti-climactic because, whatever the outcome, the battle'pitting lawyers and civil libertarians against the Justice Department and appellate court already will have been going strong.

At issue are three important constitutional points, say opponents of the restraining order: prior restraint of the publisher, censorship of a federal judge, and the separation of branches of the government.

"We're talking about a First Amendment right of a judge to publish his opinion and the Department of Justice trying to suppress that right, which we believe to be absolute," said Richard Rufner, one of the attorneys in the case.

"Then you have a separation-of-powers problem with the executive branch trying to ride herd over the judicial branch and prevent it from carrying out the judicial branch's rights and responsibilities.

"It's astounding," he said.

"When the indictment came down in 1982, the Department of Justice issued a fourpage press release without worrying about the reputations of the accused before they had their day in court. Now, suddenly, they are extremely worried about the reputations of their attorneys... claiming they have not had their day in court.

"What's good for the goose is good for the gander," he said.

(Glenn L. Archer Jr., the head of the Justice Department's tax division, said in an interview with The New York Times that the

prior restraint on publication was necessary because the "slanderous" Judicial opinion unfairly criticized three of his prosecutors.

(Lawyers involved in the case and other legal experts said they knew of no previous instance in which a private publisher had been barred, on pain of contempt of court,

from publishing a judicial opinion.)

"THIS IS A GAG ORDER"

No. 5

Kahn said he and David Miller, director of the Colorado ACLU chapter, will review the case file Monday and make a recommendation to the ACLU about "what, if anything. it ought to do."

CASE STARTED IN 1982

The problem goes back to 1982 when the Department of Justice, concluding a 21month investigation by its tax diversion and the Internal Revenue Service, indicted seven persons and the Bank of Nova Scotia on as many as 27 counts each of conspiracy, mail fraud, obstruction of justice and,"

Eventually, all but one of the counts, arı obstruction-of-justice charge against Wil liam A. Kilpatrick of Littleton, were dismissed. In a trial in U.S. District Court in Denver last spring, Kilpatrick was convicted of obstruction of justice.

But defense attorneys, alleging miscon duct by IRS agents and three prosecutors from the Department of Justice in Washington, asked for dismissal of the indictment or a new trial.

Six days of hearings on the defense motion were held last summer and, on Aug. 25, Winner granted Kilpatrick a new trial in a lengthy, scathing opinion on which the legal imbroglio is centered.

Winner described Kilpatrick's trial as "an ill-starred case which had its first question. able conduct during the opening two minutes of grand jury investigation and which had conduct suspect under the Canons of Professional Responsibility lasting into post-trial hearings."

The bulk of his wrath was aimed at three Justice Department prosecutors: Stephen "Jake" Snyder, Jared Scharf and Thomas Blondin, who directed the government's case from the grand jury through the criminal trial.

Among the examples of alleged misconduct were:

The use of two IRS agents as sworn "agents of the grand jury," dubbed by Winner as "IRS special agent/grand Jury agents/prosecutor's helpers."

Abuse by prosecutors of rules governing grants of immunity for prosecution wit

nesses.

WITNESS RELEASED

The release by prosecutors of a subpoenaed witness, although court rules specify that the witness can be released only by a judge.

At the direction of two prosecutors, letters were written on the letterhead of the U.S. attorney for Colorado without the U.S. attorney's permission.

Disclosure by prosecutors of secret grand Jury testimony to unauthorized persons. Intimidation by prosecutors of defense witnesses in front of the grand jury.

Winner said the government described many of the accusations of misconduct by defense attorneys as "silly, but they aren't either silly or frivolous. And if the overlords of the tax division think this whole mess is Just a ploy, I recommend that they take a second look."

In addition to being printed for the local news media, Winner's opinion was sent off routinely to West Publishing, a private firm, for inclusion in the next volume of the Federal Supplement. Each volume of the Federal Supplement, a thick book of decisions rendered by federal judges around the courttry, is purchased by thousands of law firms and legal libraries around the country.

Initially, all of the submitted decisions are printed in so-called "advance sheets," unbound paperback volumes that are widely circulated. Several weeks after the "advance sheets" are published, they are reprinted in hardback volumes.

On Sept. 6, almost two weeks after Winner's decision was issued and after it was sent to West Publishing for inclusion in the Federal Supplement, the Justice Department asked in a motion that Winner's opinlon either be withdrawn or amended by deleting all names of prosecutors and information identifying them. Winner rejected that request the next day.

That rejection was the subject of another government appeal, filed about 10 days later. But the government's supporting documents weren't filed with the court until Nov. 29.

Meanwhile, Winner's decision already had been published in the "advance sheet" for volume 570 of the Federal Supplement and circulated throughout the country.

On Dec. 27, t'. government said it was told by Charles Nelson, editor-in-chief of West Publishing, that the deadline was Dec. 30 for the hardback edition of volume 570 containing Winner's decision. In addition, Justice officials said they were told the only way to stop hardback publication of an opinion from the "advance sheet" was by order from the district court or appeals court.

Two days later, on Dec. 29, the Justice Department filed an emergency motion with the 10th U.S. Circuit Court of Appeals, asking for an order forbidding West Publishing from including Winner's opinion in the hardbound version of volume 570 of the Federal Supplernent.

Winner's allegations of prosecutorial misconduct "are defamatory and potentially harmful to the prosecutors named in the opinion," Assistant Attorney General Archer wrote in the emergency motion. Winner's discussion and identification of the prosecutors "was unnecessary" in ruling on the defendant's motion for a new trial. Archer said.

Por filing with the 10th Circuit Court in Denver, Justice officials electronically transmitted Archer's motion from Washington to the US attorney's office in Denver, which relayed it to the appellate court. But copies of the motion for the defense attorneys, instead, were mailed and didn't reach their offices until Dec. 30, which left defense attorneys little time to develop responses to the motion.

On Jan. 3. Judges William Holloway Jr. of Oklahoma City, Okla., and Stephanie Sey mour of Tulsa, Okla., both appellate judges, and Senior U.S. District Judge Luther Bohanon of Oklahoma City, who had been appointed to sit temporarily on the appellate bench, granted Archer's request. Their temporary restraining order forbade West Publishing from including Winner's opinion in the hardbound volume until further evidence could be studied by the appellate judges.

Few involved in the case would comment on it.

Judge Holloway and U.S. District Judge John Kane Jr., who must hear the re-trial of Kilpatrick, refused comment because the case was pending before them.

Winner, who retired from the bench last September, declined comment pending final resolution of the case.

West Publishing Editor-in-Chief Nelson and Managing Editor James Corson refused to return telephone calls.

"I'm utterly shocked that as responsible a publisher as West Publishing Co.. which publishes the national reporter system used by the entire American legal profession and Judiciary, would not stand up and be counted on to challenge this gag order," said defense attorney Van Koughnet.

Contacted at

his Minneapolis office, Vance Opperman, an attorney for West

Publishing, said the company "always follows court orders."

The Supreme Court has ruled on several occasions, including its 1971 Pentagon Papers decision rejecting the Nixon administration's effort to bar newspapers from publishing a classified Defense Department study of the Vietnam War, that any "prior restraint" on publication "comes to this court bearing a heavy presumption against its constitutional validity."

WINNER'S OPINION/EXCERPTS

"...I don't think that an IRS special agent can act in the combined capacity of IRS agent, 'agent for the grand jury,' and recipient of grand jury information... for the sole purpose of helping out the prosecu. tor. This is a confusion not of apples and oranges. It is confusing apples, oranges and bananas."

"the government is playing with fire in arguing that good motive excuses making one's own law."

"Mr. (Stephen) Snyder's good intentions don't excuse his arrogation of a power that he didn't have. And, even if the illegal 'oath' doesn't amount to serious error, it started the case downhill on a course of repeated excesses on the part of the prosecution."

"I don't know how it can be argued that this language permits disclosure to IRS agents to work as 'agents for the grand jury' unless it is argued that the grand jury is simply an arm of the prosecutor's office, and if that be the argument, almost 800 years of history is going to have to be forgotten. The document King John signed at Runnymede contains no such concept, nor does our Constitution."

"It seems pretty clear to me that the IRS agents to whom disclosure was made were hired guns of the prosecutor and the IRSnot of the grand jury."

"No oath of secrecy was administered. but an obligation of secrecy was imposed by 'instructions from government counsel to witnesses. This foolishness may or may not have been intentional, but ignorance of the law is not a defense available to a prosecutor..

This misconduct is established by the record, and it will prove difficult for the government to deny..."

"Intimidating witnesses by telling them that their testimony disgraces them and implying that the Tax Division of the Department of Justice will take after the witness .. because an expert testified to his expert opinions does no credit to our government." "Usually when a case goes to the jury. there are no more difficulties to be encountered, but that's not so in this ill-starred case which had its first questionable conduct during the opening two minutes of grand jury investigation and which has conduct suspect under the Canons of Professional Responsibility lasting into post-trial proceedings."

BAN ON JUDGE'S OPINION ATTACKEDQUESTIONS RAISED OVER PUBLICATION BLOCK (By Mark Thomas)

A precedent-setting order blocking the publication of an opinion by a former Denver federal judge has prompted accusations of unauthorized censorship and raised questions about First Amendment privileges.

The order, which the American Civil Lib erties Union began studying Friday for possible constitutional violations, is attracting national attention and is under fire for being "an attempt to muzzle a federal Judge."

Issued earlier this month by a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals, the order stopped an opinion by former U.S. District Judge Fred

M. Winner from being published in the Fed. eral Supplement.

At issue is Winner's Aug. 25, 1983, opinion ordering a new trial for William Kilpatrick of Littleton, who was convicted in federal court in Denver last summer of obstruction of justice charges in connection with an al leged tax-shelter fraud.

Winner found that Kilpatrick should get a new trial because of a "preliminary factual showing of serious misconduct" on the part of three U.S. Department of Justice Tax Division attorneys during grand jury proceedings.

The prosecutors were accused of intimidating witnesses before the grand jury, failing to keep secret grand jury testimony in a secure place, and offering unauthorized "pocket immunity" to witnesses.

"Winner's highly critical opinion stopped short of finding them guilty of prosecutorial misconduct of dismissing the indictment. Winner left that decision to U.S. District Judge John L. Kane, Jr., who took over the case after Winner's retirement in October. After Winner rejected a government motion requesting that the opinion be with. drawn-or that the names of the prosecutors be deleted-the government asked the 10th Circuit court to block West Publishing Co. of St. Paul, Minn., from printing it in a permanent volume of the Federal Supplement.

The government claimed that Winner had failed to keep the opinion free of impertinent defamatory and scandalous matters," and that his comments on the allegations of misconduct were potentially harmful to the three prosecutors.

On Jan. 4, just a few days before the opin. ion was to be printed, the 10th Circuit or dered West Publishing to postpone its publication. The panel of 10th Circuit Judges William J. Holloway Jr., Stephanie K. Sey. mour and U.S. District Judge Luther L. Bohanon of Oklahoma City ruled that further hearings on the misconduct allegations should be completed before the opinion was published.

The 10th Circuit also has directed attor neys for Kilpatrick and other defendants in the case to show cause why the order should not be made permanent. A ruling on the permanent prohibition is pending.

Edwin S. Kahn, a volunteer attorney with the ACLU in Denver, said the order "calls into question some very important First Amendment principles."

Kahn said the order apparently violates not only Winner's First Amendment rights. but also the right of the public to know what was decided by the trial court.

"Judges say a lot of nasty things about people in their opinions, it's their job to evaluate how cases are presented. They have to call them how they see them. If he saw it wrong he'll be reversed. That doesn't mean you shouldn't be able to read about his finding." Kahn said.

The ACLU will have to review the case filed before deciding whether to intervene, but Kahn said "if the factors are as reported, it certainly appears to be highly irregular. It's not the function of the appeals court to tell a publisher what he can and cannot print."

John Wilson, 2 Justice Department spokesman in Washington, said the government does not see the 10th Circuit's order as having anything to do with First Amendment issues.

We're saying he abused his discretion by including the names of the attorneys who we say are victims of allegations that are not correct. What we wanted to do was prevent the disclosure of their names.. That's

all there was to it. We aren't attempting to muzzle anyone," Wilson said.

Wilson said that if Winner agreed to delete the attorney names-Steven L "Jake" Snyder, Thomas Blondin and Jared Scharf-the government would not oppose the publication of the opinion.

Winner, currently working as an adviser to a law firm, declined to comment about the 10th Circuit's order. But in response to Wilson's statements about deleting the names, he said, "If they want to talk about it they can call me."

William C. Waller, Kilpatrick's attorney, said he believes the order sets "a dangerous precedent."

"Its important to realize that we have a common-law system which relies on previous opinions in deciding questions of law. The government's conduct in a case is a developing area of the law, and courts have the right to see how other courts have deelt with it," Waller said.

Motions filed by Waller and attorneys for other defendants still involved in the case said the government's attempt to block publication "is a classic example of an effort to obtain prior restraint.

[From the Wall Street Journal, Jan. 25,

1984)

ROCKY MOUNTAIN LOW

All right, it's no Pentagon Papers case. The Justice Department's Tax Division recently got a federal appeals court to postpone publication of an opinion by a Colorado district court judge. The incident is full of sides and ambiguities. It is not the kind of trumpeting outrage that should summon forth the civil liberties soldiers to battle under the flag of high morality. But the case does pose a danger to free speech, and gives us a lesson in where similar dangers are liable to arise in the future.

In 1982 the Tax Division got a grand jury to indict a bank and various individuals for tax fraud in connection with an allegedly illegal shelter. The Justice Department issued a press release, as is its practice, anand naming nouncing the indictment names. This past summer, the district court judge ordered a new trial for the by-then last remaining defendant and called for hearings on whether the whole indictment should be thrown out.

The judge said preliminary evidence indicated that Justice Department laywers had railroaded the grand jury. They allegedly had falsely told witnesses that testimony had to be kept secret, had threatened an attorney with prosecution to make him breach lawyer-client confidentiality, and had browbeaten an expert witness. The judge, too, named names, this time the names of the allegedly guilty department attorneys. He had his opinion printed and disseminated in preliminary form.

The Tax Division thought the judge's accusations, presented without giving the lawyers any chance to respond, were slanderous. The department got the appeals court to prevent the opinion from becoming part of the permanent volume of record until the court had finished further consideration.of the whole matter. A department official says this was not prior censorship because the opinion is available in preliminary form.

This distinction between the preliminary printing of the opinion and the final printing does make the issue of prior censorship a little murky-but not much. What is important about the freedom to print is not just the ability to put your view before people for a given day or a given week. It is also and even more important-the chance to form the record to which people will refer years from now. Closed societies do not just censor newspapers; they censor the history books as well, and for good reason. Prior censorship is as obnoxious in the latter case as in the former.

We sympathize with the Justice Department's wish to protect the reputations of its lawyers against accusations involving truly obnoxious prosecutorial practice. It is awful to be dragged publicly and unjustly through this kind of mud. In fact, this may be the time to remind these energetic prosecutors that public mudslinging before all the facts are in is just as awful for a private citizen whom the department has just visited with an indictment and a press release.

Judges should be very careful when leaning on prosecutors this way with the full weight of judicial authority. Prosecutors should be just as careful when leaning on the rest of us.