Ban On Witness Interviews Prompts Suit By Paper

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A California newspaper has sued a prosecutor and a grand jury for violating the First Amendment rights of witnesses by threatening to jail anyone who tells reporters about their testimony in an investigation of a judge.

The San Jose Mercury News’ suit arises out of a grand jury investigation into whether Judge William Danser gave favors from the bench, perhaps to members of the San Jose Sharks and San Jose Earthquakes as well as others.

The newspaper said the grand jury apparently heard from its final witnesses yesterday, and may begin deliberating today whether to hand up an indictment. The panel takes testimony in secret, but the Mercury News contends in its lawsuit that the U.S. and state constitutions give people the right to speak publicly about what they said or were asked.

The newspaper says that its reporters have been trying to piece together the strengths or weaknesses of the government’s case against Danser and possibly others. Two witnesses said they wanted to talk to a reporter but the grand jury admonished them not to.

On Wednesday, the lawsuit alleges, William Larsen, the special assistant district attorney, approached Mercury News reporter Elise Banducci during an interview with a witness and asked whether her editor had given her the message that witnesses who talk to her “will be thrown in jail.”

District Attorney George Kennedy said the grand jury foreman, not his prosecutor, was instructing witnesses not to talk about their testimony. “My deputies don’t tell witnesses not to talk to the press, but the grand jury can,” Kennedy said, “and they need to do that to effect the statutory purposes of secret grand jury proceedings.”

The newspaper argues that free speech, even if it provides risks to the grand jury process, is a bedrock right affirmed by the U.S. Supreme Court. The newspaper wants a judge to order the grand jury and district attorney’s office to stop telling witnesses not to talk to the press. It also wants them to call witnesses they’ve already warned to tell them they can talk if they choose.

One witness told the Mercury News last week that he had a speeding ticket dismissed after he had been asked to make a donation to the Los Gatos Little League. The man wouldn’t say who asked him to make the donation.


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