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SUPREME COURT CASE NO. S155944

IN THE
SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN

Petitioner,

VS.

LOS ANGELES COUNTY SUPERIOR COURT

Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM

COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY
OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY,
Real Parties in Interest.
SUPREMECOURT
FILED
After a Decision By the Court of Appeal,
2na Appellate District, Division 3 DEC1 2 2007
Appellate Court Case No. B199147
(Hon. Joan Dempsey Klein, Presiding Justice) FrederickK. Ohldch Clerk

Deputy

CONSOLIDATED ANSWER BRIEF ON THE MERITS

RONALD O. KAYE (No. 145051)

DAVIDS. McLANE(No. 124952) FILEDWITil ,r"-"',,
,,,''_' -
MARILYN E. BEDNARSKI (No. 105322)
MATTHEW N. SIROLLY (No. 239984) (of counsel)
KAYE, McLANE & BEDNARSKI, LLP
128 North Fair Oaks Avenue
Pasadena, California 91103
Telephone: (626) 844-7660
Facsimile: (626) 844-7670

Attorneys for Appellant

THOMAS LEE GOLDSTEIN
 TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES ................................... iii

REQUEST FOR EXPEDITED REVIEW AND

PREFERENTIAL CALENDARING ............................. 1

ADDITIONAL ISSUE PRESENTED FOR REVIEW ................ 2

INTRODUCTION ............................................ 3

STATEMENT OF FACTS ..................................... 6

ARGUMENT ............................................... 11

I. THE APPELLATE COURT' S DECISION STRIKES THE

APPROPRIATE BALANCE BETWEEN THE NEED FOR
GRAND JURY SECRECY AND COURTS' INTEREST IN
TRUTH AND FAIRNESS IN LEGAL PROCEEDINGS ....... 11

A. California Litigants Should Have the Same Rights to

Access Grand Jury Materials as Federal Court Litigants... 13

B. The Law of Other States and the Federal Case Law

Support the Standard Adopted by the Appellate Court .... 15

II. THE APPELLATE COURT'S DECISION IS CONSISTENT

WITH CALIFORNIA LAW AND THE LONG STANDING
PRACTICE OF CALIFORNIA COURTS ................... 18

A° The Appellate Court's Decision Is Consistent with this

Court's Holdings in Daily Journal Corp. and McClatchy
Newspapers ...................................... 18

i°
County's Argument that Release of these Materials
to Goldstein Will Lead to Public Disclosure of the
Materials Is Wrong .......................... 20
 TABLE OF CONTENTS (CONT.)

PAGE

B.
The Appellate Court's Decision Is Supported by a Long
History of Decisions of this Court and by the
Longstanding Practice of California Trial Courts ........ 21

C* The County's Reliance on People v. Gonzalez Is

Misplaced ....................................... 24

D° Despite the County's Claim's to the Contrary, the

Appellate Court's Decision Does Not Conflict with the
Statutory Scheme or Upset the Principle of Separation
of Powers ....................................... 27

III. EVEN IF THE COURT OF APPEALS DECISION IS

REVERSED, THIS COURT SHOULD FIND THAT A
CALIFORNIA TRIAL COURT HAS STATUTORY
AUTHORITY TO ALLOW GOLDSTEIN ACCESS TO
THE GRAND JURY MATERIALS ........................ 30

A. Penal Code 924.2 Authorizes the Release of Grand Jury

Materials that Goldste'm Requests .................... 30

B° Penal Code Section 929 Also Authorizes the Release of Grand

Jury Materials that Goldstein Requests ................ 34

IV. REGARDLESS OF WHETHER THE CALIFORNIA

SUPERIOR COURT HAS THE POWER TO GRANT
GOLDSTEIN ACCESS TO THE GRAND JURY
MATERIALS, THE APPELLATE COURT'S ORDER
SHOULD BE AFFIRMED TO THE EXTENT THAT IT
DIRECTS THE SUPERIOR COURT TO COOPERATE WITH
THE FEDERAL COURT BY REVIEWING THE MATERIALS
AND PREPARING A STATEMENT ...................... 38

CONCLUSION ............................................. 40

ii
 TABLE OF AUTHORITIES

CALIFORNIA CASES PAGE

Cummiskey v. Superior Court

(1992) 3 Cal. 4th 1018 .................................. 23

Daily Journal Co1_. v. Superior Court

(1999) 20 Cal. 4th 1117 .............................. passim

Estate of Lindquist
(1944) 25 Cal. 2d 697 ................................... 40

Ex Parte Sontag
(1884) 64 Cal. 525 ............................. 4, 19, 20, 21

Fitts v. Superior Court

(1936) 6 Cal. 2d 230 .................................... 17

Goldstein v. Superior Court

(2007) 154 Cal. App. 4th 482 .......................... passim

MeClatehy Newspapers v. Superior Court

(1988) 44 Cal. 3d 1162 ............................... passim

People v. Baekus
(1979) 23 Cal. 3d 360 ................................... 23

People v. Coleman
(1978) 84 Cal. App. 3d 1016 ............................. 23

People v. Gonzalez
(1990) 51 Cal. 3d 1179 ................................. 23

People v. Holloway
(2004) 33 Cal. 4th 96 ............................. 12, 20, 22

People v. Laney
(1981) 115 Cal. App. 3d 508 .............................. 2

iii
 TABLE OF AUTHORITIES (CONT.)

CALIFORNIA CASES PAGE

People v. McAlister
(1976) 54 Cal. App. 3d918 ............................... 36

People v. Snow
(1977) 72 Cal. App. 3d 950 ............................... 23

People v. Superior Court

(2000) 78 Cal. App. 4th 403 .......................... passim

FEDERAL CASES PAGE

Camiolo v. State Farm

(3rd Cir. 2003) 334 F.3d 345 ........................... 14, 39

Dennis v. United States

(1966) 384 U.S. 855 ..................................... 15

Douglas Oil Co. v. Petrol Stops Northwest

(1979) 441 U.S. 211 .......................... 6, 11, 13, 15, 31

Metzler v. United States

(9th Cir. 1933) 64 F.2d 203 ............................... 15

Socialist Workers Party v. Grubisic

(7th Cir 1980) 619 F.2d 641 ................................. 38

U.S. Industries, Inc. v. United States District Court

(9th Cir. 1965) 345 F.2d 18 .................................. 15

United States v. Giglio

(1972) 405 U.S. 150 ....................................... 7

United States v. Procter & Gamble

(1958) 356 U.S. 677 ..................................... 15, 22

iv
 TABLE OF AUTHORITIES (CONT.)

FEDERAL CASES PAGE

United States v. Socony-Vacuum Oil Co.

(1940) 310 U.S. 150 ........................................ 15

SISTER-STATE CASES PAGE

Diamen v. U.S.
(D.C.1999) 725 A.2d 501 ................................. 15

Euresti v. Valdez
(Tex.App. 1989) 769 S.W.2d 575 ........................... 15

Hinojosa v. State
(Ind. 2003) 781 N.E.2d 677 ................................ 15

In re Grand Jury of Douglas County

(2002) 263 Neb. 981 ..................................... 15

In re Investigatory Grand Ju_y No.2004-01

(2006) 50 Conn. Supp. 23 ........................ . ......... 15

In re Jessup's Petition
(1957) 50 Del. 530 ....................................... 15

Keen v. State
(Fla. 1994) 639 So. 2d 597 ................................. 15

Mannon v. Frick
(1956) 365 Mo. 1203 ................................ 15

Milliean v. State, 423 So. 2d 268

(Ala.Crim.App. 1982) ..................................... 15

State ex reL Ronan v. Superior Court In and For Marieopa County

(1964) 95 Ariz. 319 ...................................... 15
 TABLE OF AUTHORITIES (CONT.)

SISTER-STATE CASES PAGE

People v. Di Napoli
(1970) 27 N.Y.2d 229 .................................... 15

State v. Beck
(1960) 56 Wash. 2d 474 ................................... 15

State v. Carillo
(1973) 112 R.I. 6 ......................................... 15

State v. Doliner
(1984) 96 N.J. 236 ....................................... 15

State v. Greer
(1981) 66 Ohio St. 2d 139 ................................. 15

State v. HarO%ld
(1981) 290 Or. 583 ....................................... 15

State v. Higgins
(La. 2005) 898 So. 2d 1219 ................................ 15

Sutton v. State
(1975) 25 Md. App. 309 .................................... 15

STATUTES PAGE

Cal. Evid Code § 1040 .......................................... 29

Cal. Penal Code § 924.1 ......................................... 27

Cal. Penal Code § 924.2 ...................................... passim

Cal. Penal Code § 924.6 ...................................... 32, 33

Cal. Penal Code 9929 ........................................ passim

Cal. Penal Code Section 939.1 ...................................... 38

vi
 IN TI-IE
SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN

Petitioner,
VS.

LOS ANGELES COUNTY SUPERIOR COURT

Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM

COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY
OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY,
Real Parties in Interest.

After a Decision By the Court of Appeal,

2ndAppellate District, Division 3
Appellate Court Case No. B199147
(Hon. Joan Dempsey Klein, Presiding Justice)

CONSOLIDATED ANSWER BRIEF ON THE MERITS

REQUEST FOR EXPEDITED REVIEW AND PREFERENTIAL

CALENDARING

Goldstein filed his federal lawsuit in November of 2004 and has

been seeking access to the grand jury materials at issue since February of

2006. His federal lawsuit, now set for trial in January of 2009, has been

delayed due to the litigation of this issue. Goldstein needs to resolve this

issue sufficiently in advance of trial to complete discovery and trial

perpetration. Therefore, both the interests of justice and principles of

federal-state comity, support _anting expedited review and/or preferential

calendaring.
 ADDITIONAL ISSUE PRESENTED FOR REVIEW

There are two issues before this court. Los Angeles County

Counsel's Opening Brief stated one of these issues. (See County Counsel

Opening Br. at 1.)_ However, for reasons that are unclear, neither of the

County's two Opening Briefs state or address the additional issue that was

raised by Goldste'm in his Answer to the Petition of Review. (See Answer to

Pet. for Review at 7.) This additional issue is properly before this Court,

see Cal. Rule of Ct. 8.500(a)(2): "Do Penal Code sections 929 and 924.2

authorize disclosure of the grand jury materials to Goldstein? In particular

does, Penal Code section 924.2 create a statutory basis for application of the

particularized need test (as formulated in Douglas Oil) by California courts

and does Penal Code section 929 create a statutory basis for the disclosure

of grand jury materials from an investigation into punic malfeasance where

the Grand Jury clearly intended to make these materials available to future

litigants?"

For the reasons explained below, see infra note 2, Goldstein refers
to the "Opening Brief of Real Party in Interest Grand Jury of the County of
Los Angeles," which was written by the office of Los Angeles County
Counsel, as "County Counsel Opening Br." The brief submitted by the
private firm hired (presumably by the office County Counsel) to represent
Los Angeles County, John Van De Kamp and Curt Livesay in Goldstein's
civil rights suit referred to as "Private Counsel Opening Br."
 INTRODUCTION

This is a case of ftrst impression, and is not, as the Countf tries

desperately to portray it, contrary to this Court's decisions in Daily Journal

Corp. v. Superior Court (1999) 20 Cal. 4th 1117 andMcClatchy

Newspapers v. Superior Court (1988) 44 Ca!.3d 1162. As the appellate

court explained in its opinion, the issue in these two cases was public

disclosure of grand jury materials, not the limited use of grand jury

materials in an ongoing court proceedings that Goldstein seeks. See

Goldstein v. Superior Court (2007) 154 Cal.App.4th 482, 485, 494.

Goldstein--who was wrongfully convicted and incarcerated for

more than 24 years based in large part on the false testimony of ajailhouse

informant--needs access to the jailhouse informant grand jury materials in

order to vindicate, in a court of law, his fundamental constitutional rights

and to hold accountable those who were responsible for the grave injustice

inflicted on him. He seeks access to these materials for the limited purpose

of using them in his pending federal civil rights case and will aNde by a

2 Goldstein continues to object to County Counsel appearing on

behalf of the Grand Jury in this proceeding since the County of Los
Angeles, for which County Counsel acts as the primary legal representative,
is a defendant in Goldstein's civil rights lawsuit. This appears to create a
conflict of interest. In fact, County Counsel is asserting a position that,
although it aligns well with the interests of the County of Los Angeles as a
defendant in Goldstein's civil rights lawsuit, is in direct conflict with the
actual position of the 1989-1990 Los Angeles County Grand Jury, which
(according to the special counsel who worked directly with it) intended to
make these materials available to future litigants.
Although Goldstein does not impugn the integrity of County
Counsel, Goldstein continues to believe that under the conditions of the
current proceeding it is unjust to characterize County Counsel's position as
that of the Grand Jury, as opposed to that of the County of Los Angeles.
protective order limiting their useto that context. The interestsof justice
demandthat Goldstein be given accessto thesegrandjury materials.

The appellate court's decision strikes the appropriatebalance

betweenthe need for grandjury secrecyandthe court's interestin
promoting troth andfairness in legal proceedings.
This decision doesnot threatentraditional California grandjury
secrecy,as the County attemptsto argue.To the contrary, it allows the
California courts to continue exercisingpowers to releasegrandjury

materials that they have always exercised--powers that the Los Angeles
Superior Court has in fact usedto give other litigants accessto the very
grandjury materials that Goldstein seeksto access,andpowers that the Los
Angeles County Grand Jury itself andthe judge presiding over it in 1990
believed existed when they preservedthesematerials for useby furore

litigants. See Goldstein, 154 Cal.App.4th at 487, 488, n.1 The appellate
court's decision is in fact consistent with California law and court practice,

both of which support releasing of grand jury materials when necessary for

use in court proceedings. See, e.g., Ex Parte Sontag (1884) 64 Cal. 525,

526; People v. Superior Court (2000) 78 Cal.App.4th 403,421-25; Penal

Code §§ 924.1(a), 924.2, 924.6.

Far from changing the practices of California courts, the appellate

decision harmonizes these practices of releasing grand jury materials for use

in pending litigation with the law expressed in Daily Journal Corp. and

McClatchy Newspapers.

The experience of federal courts and the courts of sister states have

similarly borne out the wisdom of allowing litigants to access grand jury

materials where they are needed for use in court proceedings and this need

outweighs the interests in keeping the materials secret.

 As the record makesplain, no real threat to grandjury secrecyis
posedby providing Goldstein accessto the jailhouse informant grandjury
materials.Not only is his requestlimited to using thesematerials under a

protective order in ongoing litigation, but the grandjury proceedingsat

issueoccurredmore than 17years agoand involved evidenceandtestimony
on eventsthat, in many cases,transpiredwell over 20 years ago. See
Goldstein, 154 Cal.App.4th at 487.

Although the threat to grand jury secrecy posed by Goldstein's

request is virtually nonexistent, Goldstein's need for these grand materials

is great. These materials contain evidence and information that is not only

directly on point with the allegations in Goldstein's case, but that is

unavailable anywhere else. Without access these materials Goldstein will be

denied the opportunity to fully and fairly present his civil rights case to the

trier of fact.

Although Goldstein strongly believes this Court should affirm the

appellate court's holding that the superior court's inherent authority gives it

the power to grant Goldstein's request, even if this court rejects that

position, it should nonetheless fred that statuto1:7 authority exists to grant

Goldstein's request under Penal Code sections 924.2 and 929. Penal Code

section 924.2 explicitly authorizes a court to disclosure grand jury testimony

for the purpose of verifying the truth and accuracy of a witness's testimony.

Meanwhile, Penal Code section 929 authorizes the release of raw grand jury

materials from a watchdog grand jury investigation if there has been court

approval and the identities ofwimesses are protected. The release of the

jailhouse informant grand jury materials to Goldstein for use in his civil

rights case is fully consistent with the statutory scheme for grand jury

secrecy created by the legislature.

 Finally, as was concededby County Counsel,the federal court will

have the power to apply the well developedparticularized needstandard

andorder the superior court to releasethesematerials, evenif it is
determinedthat the superior court lacks this power. (County Counsel
Opening Br. at 20-23.) For this reason,regardlessof whether the other
portions of the appellate court opinion are overturned, the appellatecourt's
opinion should be affirmed to the extent that it ordersthe superior court to
review the grandjury materials andpreparewritten findings analyzing the

secrecyconcernsraised by thesematerials for use by the federal court in

applying the federal particularized needtest describedin Douglas Oil Co. v.
Petrol Stops Northwest (1979) 441 U.S. 211.

STATEMENT OF FACTS

On November 16, 1979, Thomas Lee Goldstein was arrested without

probable cause, and falsely imprisoned, for a crime that he did not commit.

See Goldstein, 154 Cal.App.4th at 486-87. Goldstein, a veteran of the

Marines who was studying engineering at Long Beach City College, had no

prior convictions and no history of violence. Id. at 486. He served more

than 24 years in.prison before his conviction was reversed on habeas corpus

petition. Id. at 487.

Goldstein was wrongfully imprisoned due, in large part, to the

testimony of a notorious jailhouse informant, Edward Floyd Fink, who

falsely claimed to have received a confession from Goldstein while they

shared a cell together. See id. at 486. This false statement was either

purposely or recklessly elicited by Long Beach police detectives, who were

 aware of Fink's history of dishonesty. (Writ Pet. ¶ 32.) 3 These same police

detectives helped Fink obtain substantial benefits in exchange for his

testimony. (See id. ¶¶ 27, 30, 32.) Because information on Fink's history as

an informant and the substantial benefits he received for testifying in

Goldstein's case were not memorialized or indexed by the District

Attorney's office--in contravention of the U.S. Supreme Court's directive

eight years earlier in United States v. Giglio, 405 U.S. 150 (1972)--the

deputy district attorney who prosecuted Goldstein was unaware that Fink

lied about these issues on the stand, and Goldstein's defense attorney had

no specific evidence with which to impeach Fink. (See id. ¶¶ 30, 33.)

In 1990, after two years of investigation, the Los Angeles County

Grand Jury issued a report finding that, for more than a decade, Los

Angeles County law enforcement agencies had pervasively misused

jailhouse informants and fostered a system that encouraged informants to

falsely testify that they had received confessions from criminal defendants

whose cells they were placed in. Goldstein, 154 Cal.App.4th at 487. The

Grand Jury specifically found that the Los Angeles County District

Attorney's Office failed in its responsibilities by its "deliberate and

informed declination to take the action necessary to curtail the misuse ofjaiI

house informant testimony." id.

On August 30, 1990, shortly after completion of the Grand Jury's

investigation into the misuse ofjailhouse informants, the Los Angeles

County Superior Court issued a standing order stating that the grand jury

materials amassed during this investigation were to be preserved in the

Throughout this brief "Writ Pet." refers to Goldstein's "Petition for

Writ of Mandate or Other Appropriate Relief" filed with the appellate court
on May 21, 2007.
superior court's archives andkept separatefrom other grandjury materials.
Id. Although the materials were preserved for use by future litigants, the

order indicated that the materials were not "to be viewed, inspected or

copied except by order of the Presiding Judge, Assistant Presiding Judge, or

the Supervising Judge of the Criminal Division." Id.

Since this time, the presiding judge of the superior court has on at

least two prior occasions relied on this standing order to direct the superior

court archives to produce these grand jury material to judges presiding over

habeas corpus proceedings, who then allowed the habeas petitioners to

access materials that were relevant to the proceedings. Id.

According to Douglas Dalton, Special Counsel appointed to assist

the Grand Jury in its investigation into the misuse ofjailhouse informants,

[i]t was the intent of the Grand Jury that the underlying
materials upon which the Report was based be made available
to anyone affected byjailhouse informant abuses as may be
necessary to pursue their remedies. This was a reason for the
records to be preserved.

Id. at 488, n.1.

In 2004, upon Goldstein's release on writ of habeas corpus, the

federal magistrate who recommended his release found that the testimony

of the informant who testified against him was unreliable as a whole and

was a clear example of the sort of informant testimony addressed by the Los

Angeles County Grand Jury: "[I]t is readily apparent to this Court that Fink

fits the profile of the dishonest jailhouse informant that the Grand Jury

Report found to be highly active in Los Angeles County at the time of

petitioner's conviction." Id. at 487.

On November 29, 2004, Goldstein filed a civil suit in the Federal

District for the Central District of California, stating causes of action under
the federal civil rights statutearising from his over 24 yearsof wrongful

imprisonment. Id. at 487-88. In his federal suit Ooldstein is seeking

redress for his wrongful imprisonment and to ensure that those responsible

be held accountable for this grave injustice.

The grand jury materials from the jailhouse informant investigation

are directly on point with the allegations in Goldstein's civil rights suit. In

line with the findings of the Los Angeles County Grand Jury, Mr. Goldstein

has alleged that the Los Angeles County District Attorney's Office, the

Long Beach Police Department, and the individual defendants perpetrated a

pattern and practice of similar misbehavior in other criminal cases: They

worked with dishonest jallhouse informants, provided these informants with

signific .ant benefits, and did not disclose these benefits to the court, the

defense, or even the line deputy district attorney using the informant's

testimony in the People's prosecution. (Writ Pet. ¶ 30.) Additionally, the

grand jury materials that Petitioner seeks to access probably contain

testimony from and concerning the defendants and witnesses in Ooldstein's

civil rights case.

Goldstein first sought access to these grand jury materials directly

from the superior court almost two years ago, on February 1, 2006.

Goldstein, 154 Cal.App.4th at 488. He explained his particularized need for

the grand jury materials and offered to enter into a protective order limiting

his use of the materials to the narrowest scope possible and guarding against

disclosure of the materials to the public-at-large. (Writ Pet. ¶¶ 36-37.)

Ooldstein attempted to follow the procedures for accessing this material

dictated by the superior court, ftrst serving a federal subpoena requested by

Superior Court Counsel and then withdrawing it and filing a motion before

the superior court in deference to a subsequent request by Superior Court

 Counsel. 4 Goldstein, 154 Cal.App.4th at 488-89.

Additionally, he repeatedly requested that the superior court make

findings regarding the specific secrecy concems raised by these materials

and explained that such findings would be necessary to litigate this issue in

federal court if the superior court refused to grant him access to the

material. (Writ Pet. ¶ 36.)

On March 22, 2007, well over a year after Goldstein had originally

requested access to the grand jury materials, the superior court denied

Goldstein's request access to the grand jury materials, hoIding that it lacked

authority under California law to release the materials. (Id. ¶ 50.) It denied

Goldstein access to all of the materials, even the indexes and summaries

that were prepared to help facilitate litigants' access to these material. (Id.)

It did not find that there was any specific need to maintain the secrecy of

these materials- despite County Counsel's request that such a finding be

made. (Id. ¶ 51.)

In response to this ruling, Goldstein filed a writ of mandate in the

Second District Appellate Court, requesting that the superior court be

ordered to either review and release the materials to Goldstein or review the

materials and provide to the federal court a'written evaluation of the

specific secrecy concerns raised by the materials to help the federal court

evaluate which materials should be disclosed under federal law. (See,

generally, id.). On August 23, 2007, the appellate court granted this writ of

4 On March 23, 2007, after his motion was denied the superior court,
Goldstein served a second federal court subpoena on the superior court.
(Writ Pet. ¶ 53.) This subpoena is still outstanding. The federal court has
delayed acting on it, as a matter of federal-state comity, until Goldstein's
state court proceedings are resolved. (Writ Pet. ¶ 55.)

10
 mandate, holding that the trial court had inherent authority to release these

materials to Goldstein if Goldstein could show a particularized need for the

materials under the standards of Douglas Oil Co. v. Petrol Stops Northwest

(1979) 441 U.S. 2l l. Id. at 493-94. Goldstein, I54 Cal.App.4th at 495.

Further, it held that if the superior court did not release the materials it was

required to prepare a statement regarding the needs of secrecy inhering in

the materials in order to facilitate federal court review of the issue. ]d. at

496.

ARGUMENT

Io THE APPELLATE COURT' S DECISION STRIKES THE

APPROPRIATE BALANCE BETWEEN THE NEED FOR
GRAND JURY SECRECY AND COURTS' INTEREST IN
TRUTH AND FAIRNESS IN LEGAL PROCEEDINGS

The interests of justice demand that Goldstein be granted access to

jailhouse informant grand jury materials. Without these materials Goldstein

will be deprived of the opportunity to fairly present his federal civil rights

case and the trier of fact will be deprived of the evidence it needs to grasp

the math of who is responsible for the grave injustice inflicted on Goldstein.

Goldstein does not seek access to the grand jury materials for idle

purposes. He lost more than 24 years of his life to the lies of ajailhouse

informant and the practices of law enforcement agencies that allowed these

lies to go unchecked. When his wrongful conviction was overturned the

federal court specifically found that the jailhouse informant who testified

against him "fit the profile of the dishonest jailhouse informant" that is the

focus of the relevant grand jury materials. Goldstein v. Superior Court

(2007) 154 Cal.App.4th 482, 487. The period of the grand jury's

investigation includes Goldstein's 1980 conviction. The grand jury

11
 materials contain the evidence that is needed to demons_ate the full extent

of law enforcement's culpability for the wrong that Goldstein suffered.

Goldste'm has no other way to obtain similar evidence. The Grand

Jury conducted, by its own assessment, the most comPrehensive inquiry into

the misuse ofjailhouse informants in Los Angeles County ever conducted;

it heard testimony from 120 witnesses and received 147 exhibits into

evidence. (Writ Pet. ¶ 16.) There is no way that Goldstein, 17 years after the

grand jury investigation, can obtain close to the type of the evidence that the

Grand Jury had available to it. Witnesses who would otherwise be called to

testify in Goldstein's case are dead or otherwise unavailable, and for many

of these individuals (such as the jailhouse informants and lower-level st_ "_f

of Long Beach and the County), the only formal statements they ever made

in regard to the jailhouse informant system may have been before the Grand

Jury. Without this testimony, Mr. Goldstein will be denied the opportunity

to present the information these individuals knew.

Moreover, several of the witnesses who testified before the grand

jury--including, quite possibly, the defendants in Goldstein's civil rights

case--will undoubtably be called to testify in Goldstein's case. Their

testimony before the Grand Jury is needed to ensure the accuracy and

veracity of these same witnesses' testimony in Goldstein's case. Even

forthright witnesses are likely to have difficulty remembering incidents with

the same clarity of memory they had 17 years ago.

Although Goldstein realizes that grand jury secrecy serves important

policies, these policies, as this Court has recognized, "must be made to yield
to some extent in order to accommodate the demands of truth and faLrness

in civil litigation." Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 127,

partially overruled on different grounds by, People v. Holloway (2004) 33

12
O

Cal. 4th 96, 131.

The appellate court's decision should be upheld because it struck the

appropriate balance between the policies of grand jury secrecy and the legal

system's need to access crucial evidence. It adopted the balancing test

endorsed by the United States Supreme Court in Douglas Oil Co. v. Petrol

Stops Northwest (1979) 441 U.S. 21--a case that this Court has approvingly

quoted to explain the policies motivating California's own rule of grand

jury secrecy. See McClatchy Newspapers, 44 Cal.3d at 1174-75.

The rationales underlying grand jury secrecy in Califomia and the

federal courts are identical. See id. Indeed, in Daily Journal Corp. and

McClatchy Newspapers, the cases most heavily relied upon by the County,

this Court approvingly cites and quotes Douglas Oil when explaining the

polices motivating grand jury secrecy in California. Daily Journal Corp, 20

Cal.4th at 1126; McClatchy Newspapers, 44 Cal.3d at 1173, 1175.

The Douglas Oil test appropriately protects the policies of grand

jury secrecy in both the federal court system and in California. Indeed, as is

discussed more throughly below (infi_a § II.B), it seems clear that some

version of this balancing test has been being routinely applied by California

courts for well over a century.

A.
California Litigants Should Have the Same Rights to
Access Grand Jury Materials as Federal Court Litigants.

If the appellate court's decision is reversed, this will mean that

litigants in the California courts will not be able to access California grand

jury materials that litigants in federal court can access. The parties do not

dispute that federal law authorizes a litigant to access grand jury materials

when he or she has demonstrated that a particularized need for the materials

outweighs the need to maintain the veil of secrecy. (See County Counsel

13
 Opening Br. at 20-21.)

Likewise, it is undisputed that, under the Supremacy Clause of the

Constitution, federal courts have the power to compel state courts to

disclose grand jury materials for use in federal proceedings, regardless of

whether state law forbids disclosing the material. (See County Counsel

Opening Br. at 21-22.) However, in line with federal law, Goldstein first

sought access to these materials in state court in deference to the principles

of federal-state comity and in recognition of the California court system's

interest in regulating the release of its own grand jury materials. See, e.g.,

Camiolo v. State Farm (3rd Cir. 2003) 334 F.3d 345, 357-60.

County Counsel vehemently argues because Goldstein wiU be able to

pursue access to the jailhouse informant grand jury materials through the

federal courts even if his state court request is ultimately denied, a state

court remedy is unnecessary and the interests of justice will not be injured

by denying Goldstein these materials in state court. (County Counsel

Opening Br. at 20-23.)

Such a ruling would create a disturbing outcome. If Goldstein is

blocked from accessing these grand jury materials in the California courts

and can only obtain access through a federal subpoena, it wiII mean that

federal court litigants have a greater right to access California state grand

jury materials than individuals litigafmg in California's own courts. Such an

outcome is particularly disturbing since the common law history and

policies underlying California grand jury secrecy are, as this Court has

made so clear, identical to those of the federal system. See, e.g., McCIatehy

Newspapers, 44 Cal.3d at 1174-75.

Moreover, such an outcome would ultimately diminish California's

ability to regulate the disclosure of its own grand jury materials, since it

14
 would effectively instruct federal litigants seeking California grand jury

materials to avoid the state court system altogether and go straightto the
federal court.

California litigants and courts should not have such disabilities

placed on them.

Bo The Law of Other States and the Federal Case Law

Support the Standard Adopted by the Appellate Court

Since this Court has not directly addressed the issue presented by the

case at bar, it is important to look to the law of other jurisdictions, which

strongly supports providing Goldstein with the grand jury materials he

seeks. Both the federal courts and the courts of numerous other states,

recognizing that there are cases in which need overcomes secrecy, have

adopted versions of the particularized need balancing test. 5These other

See, e.g., Metzler v. United States, (9tu Cir. 1933) 64 F.2d 203;
United States v. Socony-Vaeuum Oil Co. (1940) 310 U.S. 150, 233-34;
Dennis v. United States (1966) 384 U.S. 855; United States v. Procter &
Gamble (1958) 356 U.S. 677; U.S. Industries, Inc. v. United States District
Court (9th Cir. 1965) 345 F.2d 18, 21; Douglas Oil Co. v. Petrol Stops
Northwest (1979) 441 U.S. 211;Mannon v. Frick(1956) 365 Mo. 1203; In
re Jessup's Petition (1957) 50 Del. 530; State v. Beck (1960) 56 Wash.2d
474, 489-91; State ex rel. Ronan v. Superior Court In and For Maricopa
County (1964) 95 Ariz. 319, 332-33; People v. Di Napoli (1970) 27
N.Y.2d 229; State v. Carillo (1973) 112 R.I. 6, 11-12; Sutton v. State (1975)
25 Md.App. 309, 314-15, 334; State v. Greer (1981) 66 Ohio St.2d 139;
State v. Hartfield (1981) 290 Or. 583,592; Millican v. State, 423 So.2d 268
(Ala.Crim.App.1982); State v. Doliner (1984) 96 N.J. 236, 246-48; Euresti
v. Valdez (Tex.App. 1989) 769 S.W.2d 575, 578-79; Keen v. State (Fla.
!994) 639 So.2d 597, 600; Diamen 1,. U.S. (D.C.1999) 725 A.2d 501,532-
33; In re GrandJwy of Douglas County (2002) 263 Neb. 981,987-89;
Hinojosa v. State (Ind. 2003) 781 N.E.2d 677; State v. Higgins (La. 2005)
898 So.2d 1219, 1241; In re Investigatory Grand Jwy No.2004-01 (2006)

15
jurisdictions share with California the common law heritage of grand jury

secrecy and, as explained above, they share the same traditional set of

policies underlying this secrecy. These policies and traditions have not

prevented them from adopting a version of the particularized need test. This

is not because these jurisdictions are heedless of the policies and traditions

of secrecy, but because the particularized need test fully conforms with

these policies and traditions.

Although the County vigorously argues that the laws of these other

jurisdictions and the common law are irrelevant when considering

California grand jury secrecy (Private Counsel Opening Br. at 5-7, 10-16),

the County's position is refuted by this Court's own case law. When

considering the relationship between the grand jury and the court that

supervises it, this Court has often _rned to common law, the law of other

states, and the federal law. See, e.g., McClatchy 1172-73 (turning to federal

case law after noting that "In 1973 Grand Jury we considered common law

principles pertaining to the grand jury to facilitate our analysis of applicable

statutes"); People v. Superior Court (1975) 13 Cal.3d 430, 440-41 (mining

to common law and the decisions of other states' courts to determine if, in

the absence of statutory authority, the court has the power to suppress a

grand jury report).

Moreover, this Court has "rejected the contention that the California

grand jury [is] a 'purely' statutory body, wholly distinct from its common

law predecessor." People v. Superior Court (1975) 13 Cal.3d 430, 441. 6

50 Corm.Supp. 23.

G In People v. Superior Court (1975) this court stated:

The [California] grand jury system is a product of the common
law .... The members of the [1849] constitutional convention in

16
 Although the California grand jury may be a product of legislative

enactment this does not mean, as the County attempts to ague, Nat the

California grand jury is an institution wholly distinct from the common law

version of this institution shared with other jurisdictions. Indeed, this Court

has indicated that the principles of secrecy in the California grand jury

system are really those adopted from the common law. Daily orournal Corp,

20 Cal.4th at 1122, 1125; McClatchy Newspapers, 44 Cal.3d at 1172-73.

In sum, the standard that the appellate court adopted for evaluating

Goldstein's request for grand jury materials--the particularized need

test--is well tested and well suited to vindicate the important interests of

grand jury secrecy that are shared by California and many other

jurisdictions.

//

//

//

//

//

providing for a grand jury must have had in mind the grand jury
as known to the common law .... The Constitution of 1879 did
not attempt to change the historic character of the grand jury,
and the system its members had in mind was evidently the same
system that had come down to them from the common law. It is
in no sense a statutory grand jury as distinguished from the
common-law grand jury .... We must conclude ... that the
Constitution of 1879 when it refers to the grand jury refers to it
as it had always been known and understood prior thereto.
13 Cal.3d 430, 441(qutoing Fitts v. Superior Court (1936) 6 Cal.2d
230, 240-41 (omissions and bracketed text in original)).

17
 II. THE APPELLATE COURT'S DECISION IS CONSISTENT
WITH CALIFORNIA LAW AND THE LONG STANDING
PRACTICE OF CALIFORNIA COURTS

Ao The Appellate Court's Decision Is Consistent with this

Court's Holdings in Daily Journal Corp. and McClatehy
Newspapers

Despite the County's claims, the appellate court's decision does not

conflict with the holdings of Daily Journal Corp. and McClatchy

Newspapers. The County reads these two cases as authority for the

proposition that California courts lack any authority whatsoever to provide

grand jury materials to litigants in the absence of express statutory

authorization. (Private Counsel Opening Br. at 3; County Counsel Opening

Br. at 5-6.) But this is not what these cases hold.

Daily Journal Corp., as the appellate court correctly identified,

holds that California courts lack the inherent authority to freely divulge

secret grand jury materials to the general public, e.g., for publication in

newspapers. Daily Journal Co;T, 20 Cal.4th at 1120, 1124. It absolutely

does not hold that California courts lack the power to provide grand jury

materials to litigants for use in ongoing litigation.

In fact, this Court explicitly defined the issue in Daily Journal Corp.

as that of public disclosure:

We granted review to determine whether the superior court, in

the absence of a statutory provision for disclosure under these
circumstances, properly released the grand jury materials to
the public.

Daily Journal Corp., supra, 20 Cal.4th at 1120 (emphasis added).

Similarly McClatchy Newspapers holds that, since a _and jury is not

statutorily authorized to freely divulge raw evidentiary material to the

18
 public, the superior court has the power to prohibit a grand jury from

attempting to make such a disclosure] McClatchy Newspapers, 44 Cal.3d

1162 at 1167.

Critically, in both McClatchy Newspapers and Daily Journal Corp.

the parties seeking access to grand jury materials were media outlets who

wanted to disseminate these materials to the general public through their

publications. Daily Journal Corp., 20 Cal.4th at 1120; MeClatehy

Newspapers 44 Cal.3d 1162 at 1169. Neither case involved a request by a

litigant to access grand jury materials for use at trial. In contrast, Goldstein

requests access for the limited purpose of reviewing evidence which is

undisputably relevant to his lawsuit, and which is completely inaccessible

from any other source.

Nonetheless, the County argues there is no distinction between

Goldstein's request and that of the newspapers in Daily Journal Corp.,

asserting that Goldstein is a member of the public who is seeking access to

grand jury materials. (Private Counsel Opening Br. at 8-10.) The crucial

point ignored by the County is the use that Goldstein intends for the grand

jury materials--ongoing litigation. This is a categorically different use of

grand jury materials than the publication of the materials in newspapers that

was the focus of Daily Journal CoiT.

The distinction is critical. This Court recognized as much in Ex Parte

Sontag (1884) 64 Cal. 525. Goldstein does not seek to use the grand jury

materials to "gratify idle curiosity," but rather because he needs to use the

It be should noted that Penal Code section 929, which was enacted after
McClatchy Newspapers, now gives a grand jury the explicit statutory
authorization to release raw evidentiary materials under certain
circumstances and subject to judicial approval.

19
materials "in a court of justice", "for the purposesof public justice", and
"the protection of private rights." 64 Cal. at 526. Goldstein is seekingthe
use of materials in orderpresenthis casein a court of law; this is a use that

goesto the very essenceof the purposeof the civil justice and implicates a
much more compelling interest than the media's interest in public
disclosure

Thus, it is not surprisingthat the use of grandjury materials that

Goldstein seeks correspondswith California commonlaw and the

California statutory schemeitself (see inf!'a §§ II.B, ILD, and III), both of
which support _anting access to grand jury materials when the interests of

justice require their disclosure for use in an ongoing proceeding. See e.g.,

Ex Parte Sontag, 64 Cal. at 526; Shepherd v. Superior Court (1976) 17 Cal.

3d 107, 127, partially overruled on different grounds by, People v.

Holloway (2004) 33 Cal. 4th 96, 131; Penal Code §§ 924.1(a), 924.2, 924.6.

The County's briefs mistakenly blur all uses of secret grand jury

materials together.
i. County's Argument that Release of these Materials to
Goldstein Will Lead to Public Disclosure of the Materials
Is Wrong.

The County also blurs the distinction between public disclosure of

grand jury materials and use of the grand jury materials in litigation by

arguing that use of these materials in Goldstein's case would necessarily

result in their public disclosure at trial. (County Counsel Opening Br. at 6-

7.) The County is wrong.

To the extent that any disclosure would occur at trial, it would be

very limited and controlled by the terms of a protective order. First, even

before being disclosed to the litigants in this case, the materials will be

reviewed by the court to determine if the need for disclosure outweighs the

20
O

need for secrecy. Second, prior to disclosure at trial, the court could again

review the limited subset of materials that the litigants intend to use and

reapply the balancing test. At this point, the court could further protect

secrecy through redacting the material or limiting its use or even requiring

that the material be submitted to the jury under seal.

Moreover, available witnesses' grand jury testimony could only be

used at trial for the purposes of impeachment or refreshing recollection,

because the direct use of this testimony would violate the hearsay rule. 8

Such use of grand jury testimony is incontestabIy authorized by the

legislature under Penal Code section 924.2, which explicitly allows "any

court" to "require a grand juror to disclose the testimony of a witness

examined before the grandjury, for the purpose of ascertaining whether it is

consistent with that given by the witness before the court." Penal Code §
924.2.

B* The Appellate Court's Decision Is Supported by a Long

History of Decisions of this Court and by the
Longstanding Practice of California Trial Courts.

The appellate court's decision will not effect a radical change in the

law nor upset the traditions of grandjury secrecy in California, as claimed

by the County. In at least two instances, this Court has explicitly indicated

that it supports releasing grand jury materials to litigants who have shown a

8 Similarly, most, if not all, of the useful documentary evidence

obtained from the grand jury records would not be subject to the rule of grand
jury secrecy at all, since it would consist of documents that were produced
independently of the Grand Jury, e.g., memos or correspondence from the
District Attorney's office created prior to the impaneling of the grandjury
(but which have been lost or destroyed during the ensuing 17 years). These
documents would not become subject to the rule of grand jury secrecy simply
because copies of them were submitted to the grand jury as evidence.

21
 particularized need for these materials. As far back as 123 years ago, in Ex

Parte Sontag, this Court said:

[W]hen for the purposes of punic justice, or for the protection

of private rights, it becomes necessatT, in a court of justice, to
disclose the proceedings of the grand jury, the better
authorities now hold that this may be done.

(1884) 64 Cal. 525,526 (emphasis in original) (quoting Thompson and

Merriam). County makes much of the fact this Court's statement in Ex

Parte Sontag was dicta. But the County cannot deny that this Court's

statement in Ex Parte Sontag clearly shows that as early as 1884 this Court

had embraced the fundamental principle that California courts have the

power to release grand jury materials to litigants who had shown a

particularized need for the materials.

More recently, in 1976, this Court explicitly endorsed of the federal

particularized need test (the same test embraced in the appellate court's

decision):

In any event, as the high court was careful to point out, there
may be cases of urgent and particularized need in which [the
policies of grand jury secrecy] must be made to yield to some
extent in order to accommodate the demands of troth and
fairness in civil litigation. Although the 'indispensable
secrecy of grand jury proceedings' [citation] must not be
broken except where there is a compelling necessity [,] [there]
are instances when that need will outweigh the countervailing
policy.'

Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 127 (quoting United

States v. Proctor and Gamble 365 U.S. 677, 682),partially overruled on

different grounds by, People v. Holloway (2004) 33 Cal. 4th 96, 131.

Beyond these two cases, there are a number of other examples of

cases, both from this Court and the California appellate courts, implicitly

22
afftrming a trial court's power to release grand jury materials for use in

ongoing litigation despite a lack of express statutory authorization. In

People v. Superior Court (2000) 78 Cal.App.4th 403,421-25, the Sixth

Appellate District Court describes at least five such cases: People v. Backus

(1979) 23 Cal.3d 360, 393; Cummiskey v. Superior Court (1992) 3 Cal.4th

1018, 1031-32; People v. Snow (1977) 72 Cal.App.3d 950, 958; People v.

Laney (1981) 115 Cal.App.3d 508, 512-13; People v. Coleman (1978) 84

Cal.App.3d 1016, 1019. 9

In fact, as the record of the case at bar demonstrates, California trial

courts have been in the practice of releasing grand jury materials for use in

ongoing litigation despite the absence of express statutory authorization:

The same grand jury materials that were denied to Goldstein have been

provided to other litigants without question by the Los Angeles Superior

Court. Goldstein v. Superior Court (2007) 154 Cal. App. 4th 482, 488.1°

Moreover, it is evident that in 1990 the Los Angeles County Grand Jury and

the judge presiding over it preserved the grand jury materials at issue for the

In all of these cases the reviewing court accepted, without question,

that a trial court had properly provided litigants with access to non-
testimonial portions of the grand jury record, even though no explicit
statutory authority allows non-testimonial portions of the grand jury record
to be disclosed. See People v. Superior Court (2000) 78 Cal.App.4th 403,
421-22.

z0 "On July 5, 2006, Goldstein sent court counsel further information

about the case including the declaration ofVema Wefald, an attorney who
had accessed the grand jury materials in connection with two federal habeas
corpus proceedings. Wefald asserted that Douglas Dalton, special counsel
appointed to assist the grand jury in its investigation into the misuse of
jailhouse informants, told her the grand jury materials were indexed and
organized for the express purpose of facilitating review of the material by
future litigants."

23
O

specific purpose of making them available to future litigants. Id. at 487 II,

488 n.1. Clearly, in 1990 the Los Angeles County Superior Court believed it
had the power to provide these materials to future litigants.
Thus, affirming the appellate court's decision in the case at bar
would not cause a significant change in the practices of California courts.

On the other hand, if the County's position is adopted and the appellate
court is reversed, this would radically diminish the traditional powers of the
California courts and the accepted notion of access by litigants. 12

C. The County's Reliance on People v. Gonzalez Is Misplaced.

County Counsel relies heavily on People v. Gonzalez (1990) 51 CaI.3d

1179, devoting more than four pages of its brief to this case. (County

Counsel Opening Br. at 12-16.)

However People v. Gonzales has no pertinence whatsoever to the issues

presented in the case at bar. It is not a case that in arty way discusses the law

of _andjury secrecy. People v. Gonzalez held that a trial court lacks

jurisdiction to order post-judgment discovery in the absence of a pending

proceeding in which the discovery is to be used. Gonzalez, 51 Cal.3d at

_ "On August 30, 1990, the Superior Courtof Los Angeles County
issued an order stating the 'material accumulated and used by the 1988-89
Grand Jury and the 1989-90 Grand Jury in their investigations of the
jailhouse informants is to be kept secure by the court. [_ The material is not
to be viewed, inspected or copied except by order of the Presiding Judge,
Assistant Presiding Judge, or the Supervising Judge of the Criminal
Division.'"

a2 In fact such a ruling would call into question the propriety of the common
practice of disclosing non-testimonial grand jury material for use in motions
to vacate an indictment, since no express statutory authority authorizes this.
See People v. Superior Court (2000) 78 Cal.App.4th 403,421-22.

24
 1256. Specifically, this case overruled a trial court's order directing law

enforcement agencies 13 to turn over records to a prisoner whose criminal

proceeding had long-since been concluded and who had no other viable

actions pending in which he could use these records if they were _al"ned

over to him. )'d. After the trial court ordered this discovery, the prisoner

filed a habeas corpus petition (apparently more to support the requested

discovery than vice versa); however this Court found that the petition did

not even state a prima facie case for relief and summarily denied the

petition. Id. at 1258.

Clearly, Gonzalez is irrelevant to the issue at hand, since there is no

dispute that Goldstein seeks grand jury materials for use in a viable,

pending action: his federal civil rights case. Goldste'm's civil rights action

has already survived two motions to dismiss and been upheld by both the

federal district court and the Ninth Circuit Court of Appeal. Goldstein's

civil rights action is unquestionably viable and will proceed to trial, in sharp

contrast to Gonzalez's habeas petition.

In fact, in sharp contrast to the petitioner in Gonzalez, Goldstein has

already been released from prison because the jailhouse informant who

testified against him was -found to have fabricated his testimony. During

Goldstein's habeas proceeding the federal court specifically found that this

jailhouse informant was an emblematic example of the j ailhouse informant

system investigated by the grand jury. Goldstein v. Superior Court (2007)

154 Cal.App.4th 482, 487.

Thus, unlike Gonzalez, Goldstein has not requested free-floating

13 Los Angeles County Counsel, Los Angeles Colmty District Attorney, Los
Angeles County Sheriff, and the Attorney General. Id at 1256.

25
 discovery for the purpose of an ill-defined, yet-to-be-filed action.

Moreover, Goldstein, unlike the prisoner in Gonzalez, did not actually

request that the superior court exercise its discovery powers at all. That is,

while the prisoner in Gonzalez asked the superior court to order the

Attorney General and other law enforcement agencies to turn over their

records to him, Goldstein did not ask for an order compelling an

independent third party, such as the Attorney General, to turn over

documents. Rather, Goldstein requested that the superior court release its

own records _4 records that are under the custody and control of the

superior court and whose release are allowed, under the terms of a standing

order of the Los Angeles Superior Court, with approva! of the Presiding and

Supervising Judges of that court.

People v. Gonzalez is a case about the trial court's power to order

discovery under the discovery statutes in the absence of an action pending

before it. Id at 1257. It is decidedly not a case about the trial court's power

to release records in its own possession to an individual, such as Goldstein,

who intends to use the records in a pending action. For this reason, County

Counsel's discussion of People v. Gonzalez is irrelevant.

!!t
//

z4 "[T]here is no doubt that a grand jury is part of the court by which it is

convened, and that it is under the control of the court." People v. Superior
Court (1975) 13 Cal.3d 430, 438; see also Penal Code § 888 (implicitly
defining grand jury as part of the superior court). Moreover, the records at
issue are, apparently, under the actual, physical custody of the Los Angeles
Superior Court: They are held in the Superior Court Archives.

26
 Dt
Despite the County's Claims to the Contrary, the Appellate
Court's Decision Does Not Conflict with the Statutory Scheme or
Upset the Principle of Separation of Powers.

In its briefs, the County argues that the appellate court's decision in

Goldstein attempts to thwart the statutory scheme regarding grand jury

secrecy. (Private Counsel Opening Br. at 7; County Counsel Opening Br. at

10.) This is simply untrue. The appellate court's decision is well within the

spirt of the statutory scheme, which attempts to balance grand jury secrecy

with the need to pierce this secrecy to achieve justice in court proceedings

,see, e.g., Penal Code §§ 924.1,924.2, 924.6., and vindicate the punic

interest in correcting governmental abuses, see, e.g., Penal Code § 929.

Although the appellate court rejected the view that there is express

statutory authority authoriz'mg Goldstein's request to access the grand jury

materials and instead found the requisite authority in the court's inherent

powers, the particular inherent power identified is not at all inconsistent

with the statutory scheme for grand jury secrecy. The appellate court held

that California courts have the inherent power to release _and jury

materials to litigants, in the interests of justice, when there was a

particularized need to use these materials in ongoing litigation. Goldstein v.

Superior Court (2007) 154 Cal.App.4th 482, 485. No statute explicitly

denies a court this power

At most, the Appellate Court's decision supplements the statutory

scheme in this area--adding a power that if not explicitly endorsed, is

hardly explicitly denied the courts. While the Penal Code does prohibit

grand jurors from disclosing grand jury information in the absence of a

court order, no statutes specifically prohibit the court from releasing grand

jury materials. Quite to the contrary, a number of statutes actually suggest

27
 that courts have the power compelling grand jurors to divulge grand jury

secrets for the purpose of a court proceeding. See Penal Code §§ 924. l(a),

924.2, 924.6.

For much the same reason, the County's invocation of principles of

separation of powers is a red herring. (See County Counsel Opening Br. at

17.) Far from overriding the legislative scheme for protecting grand jury

secrecy, the appellate court's decision actually effectuates the legislature's

purpose. The County's separation of powers argument is premised on the

unsupportable claim that grand jury secrecy is equivalent to an evidentiary

privilege, and thus, that the court's piercing of this secrecy is equivalent to

the judicial elimination of a statutorily enacted privilege. (Id.)

Nothing supports the claim that grand jury secrecy is an evidenfiary

privilege. To begin with, although a grand juror is prohibited from freely

divulging grand jury secrets to the general public, no statute prevents a

court from ordering a grand juror to testify regarding secret matters. On the

contrary, numerous statutes actually authorize a grand juror to disclose

secret information when "required by a court." Penal Code § 924.1 (a); see

also Penal Code §§ 924.2, 924.6. The County cites to Daily Journal Corp.

in support of its claim that the legislature has enacted an absolute

evidentiary privilege for grand jury material (see County Counsel Opening

Br. at 17, n.53.), but Daily Journal Corp. does not make any such

statement, but instead describes grand jury secrecy as a "tradition," not an

evidentiary privilege. Daily Journal Corp, 20 Cal.4th at 1122.

Thus, when called to testify in court, grand jurors are not privileged

from revealing secret grand jury information. If the rule of secrecy does not

privilege a grand juror from revealing the information in court, it is difficult

to see how this rule of secrecy can be considered an evidentiary privilege.

28
 County Counsel also cites to the official information privilege, Evidence

Code section 1040, as a basis for its belief that grand jury secrecy is a form

of evidentiary privilege. (County Counsel Br. at 17, 11.52.) The subsection

of this statute cited by the County provides that a public official is

privileged from disclosing information if "disclosure is forbidden by... a

statute of this state." Evid. Code § 1040(b)(1). However, since no California

statute explicitly prohibits the release of grand jury materials that Goldstein

requests--i.e., the court releasing records from its own archives--the

official information privilege is not applicable.

Moreover, even if the official information privilege of 1040(b)(1) is

considered applicable to Goldstein's request, this privilege is only a

qualified privilege. By its own terms it only applies where there "is a

necessity for preserving the confidentiality of the information that

outweighs the necessity for disclosure in the interest of justice." Cal. Evid

Code § 1040(b)(2). In other words the official information privilege,

statutorily, adopts a form of the particularized need balancing test that was

adopted by the appellate court as the framework evaluating Goldstein's

request for grand jury materials. Thus, with regard to the official

information privilege, the legislature has explicitly authorized the exact

same exception to the privilege that the appellate court held should be
applied in this case. It call not offend the principle of separation of powers

for a court to apply an exception that was explicitly authorized by the

legislature.

Far from offending the principles of separation of powers, the

appellate court's decision advances the transparent intentions of the

legislature in devising the legislative scheme for the California _and jury.

29
 III. EVEN IF THE COURT OF APPEALS DECISION IS
REVERSED, THIS COURT SHOULD FIND THAT A
CALIFORNIA TRIAL COURT HAS STATUTORY
AUTHORITY TO ALLOW GOLDSTEIN ACCESS TO THE
GRAND JURY MATERIALS

k.
Penal Code 924.2 Authorizes the Release of Grand Jury
Materials that Goldstein Requests

Penal Code section 924.2 allows a court to disclose grand jury

testimony "for the purpose of ascertaining whether it is consistent with that

given by the witness before the court." Cal. Penal Code § 924.2 is

This section of the Penal Code clearly authorizes a California court

to release grand jury materials to a litigant for the purpose of impeachment

or refreshing recollection. Although Penal Code section 924.2 states a court

may require "a grand juror to disclose" testimony given before the grand

jury, naturally this should be read to extend to a ordering the release of

grand jury transcripts. This section does not specifically mention

"transcripts" because at the time that this statute was originally adopted (in

1872) California grand jury testimony was not recorded. See People v.

Superior Court (2008) 78 Cal.App.4th 403, 416 (recording of grand jury

_s The full text of section 924.2 reads as follows:

Each grand juror shall keep secret whatever he himself or any
other grand juror has said, or in what manner he or any other
grand juror has voted on a matter before them. Any court
may require a grand juror to disclose the testimony of a
witness examined before the grand jury, for the purpose of
ascertaining whether it is consistent with that given by the
witness before the court, or to disclose the testimony given
before the grand jury by any person, upon a charge against
such person for perjury in giving his testimony or upon trial
therefor.

30
 proceedings began in 1897). Thus, at the time that the language in Penal

Code section 924.2 was drafted, the only way to know what had been said

by a grand jury witness was to call a grand juror to testify as to what the

wimess said. This is no longer true and Penal Code section 924.2 clearly

extends to the release of written grand jury transcripts as well as the live

testimony of a grand juror.

Similarly, these transcripts should be available to a litigant before

trial (during the discovery phase of an action) so the litigant can adequately

prepare for trial. If the material could only be revealed during the trial

proceeding itself- when a live grand juror is before the court, this would

make presentation of such evidence impossibly haphazard. Moreover,

pretrial discovery proceedings, such as depositions, are testimony "given by

the witness before the court," in so far as they are sworn proceedings that

are used to develop evidence that will be placed before a court at trial.

Additionally, section 924.2 should not be read to limit disclosure

solely to testimony given by a live witnesses before the grand jury. Under

both California law and federal law, trial courts are generally considered to

have great latitude and discretion in deciding which grand jury materials to

disclose (even though the question of whether grand jury materials may be

disclosed is generally controlled by statute in California). See People v.

Superior Court (2000) 78 Cal.App.4th 403,407-408; Douglas Oil v. Petrol

Stops North West (1979) 441 U.S. 211,223. Thus, Penal Code section

924.2 can and should be interpreted to authorize a court to order disclosure

of grand jury transcripts and evidentiary materials.

This section should also be considered to implicitly authorize a

California trial court to release materials to litigants in other court systems,

such as Goldstein, who have shown a particularized need for the materials.

31
 Section 924.2 explicitly authorizes "any court" to order disclosure of secret

grand jury information, not merely that court which happens to have

custody over the materials. Cal. Penal Code § 924.2. If the court with

custody over the materials cannot release them to other courts (as the

standing order of the Los Angeles Superior court apparently prevents here),

the only way logically consistent way to apply Penal Code 924.2 is to see it

as requiring the court with custody over the materials (here, the Los

Angeles Superior Court) to release the materials to the litigants in other

court systems standing in the shoes of the other court.

Such a judicial division of labor is explicitly incorporated into Penal

Code section 924.6 which authorizes a California Court with custody of

criminal grand jury materials to hold an in camera hearing to release the

materials in connection with a "criminal proceeding before any court. ''16

Penal Code section 924.6 was adopted much later than section 924.2 and

the legislature actively considered the problem that would arise where the

court with custody over grand jury materials was different from the court
where the materials would be used.

Although section 924.2 does not expressly provide for a procedure to

be followed in such a situation, it is entirely consistent with the intention of

16Penal Code section 924.6 reads:

If no indictment is returned, the court that impaneled the
grand jury shall, upon application of either party, order
disclosure of all or part of the testimony of a witness before
the grand jury to a defendant and the prosecutor in connection
with any pending or subsequent criminal proceeding before
any court if the court fmds following an in camera hearing,
which shall include the court's review of the grand jury's
testimony, that the testimony is relevant, and appears to be
admissible.

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the statute to adopt the procedure described in section 924.6. Grand jury

statutes should be read in a way that accords with common sense, avoids

interpretations "which might lead to mischief or absurdity, including literal

meanings which would lead to a result not intended by the Legislature.'"

People v. Superior Court, 78 Cal.App.4th 403,428 (citing Board of

Retirement, 68 Cal.Rptr.2d 607); see also McClatchy Newspapers, 44

Cal.3d at 1172-73.

Thus if a literal reading of one statutory provision regarding

gand jury proceedings would render it inconsistent with other
statutes, such an interpretation may be rejected in favor of one
which is in harmony with other parts of the statutory scheme.

Id. at 428 (citations omitted).

Nothing in section 924.2 suggests that access to California grand

jury materials should be a benefit reserved solely to the court that happens

to have physical possession of the materials.

Although Penal Code section 924.2 does not provide any standard to

guide a court's decision as to when to release grand jury materials, the most

restrictive standard that should be adopted is that laid out in Douglas Oil,

which was adopted by the appellate court in this case to guide the
determination of which materials Goldstein should be allowed to access.

Arguably, an even less restrictive standard should apply: the standard used

by the legislature in 924.6, which directs a court to release grand jury

testimony if it is "relevant, and appears to be admissible" and does not

require the court to consider the interests of grand jury secrecy at all. Cal.

Penal Code § 924.6.

"Goldstein's request for grand jury materials fits the primary

requirement of Penal Code section 924.2: He seeks access to these materials

33
for use in an ongoing court proceeding. Thus, this statute should be found to

authorize his request.

B. Penal Code Section 929 Also Authorizes the Release of

Grand Jury Materials that Goldstein Requests.

Penal Code section 929 authorizes a civil watchdog grand jury, such

as the grand jury that investigated the misuse ofjailhouse informants, to

disclose the evidentiary materials complied during its investigation,

provided that the identities of witness testifying before the grand jury are

not disclosed to the public. Cal. Penal Code § 929.17 Although this section

was passed by the legislature several years after the dissolution of the grand

jury that investigated the jailhouse informant scandal, this section can and

should be applied to Goldstein's request for thejailhouse informant grand

jury materials..

Nothing in the legislative history of section 929 suggests that it should not

_TThe full text of section 929 reads as follows:

As to any matter not subject to privilege, with the approval of

the presiding judge of the superior court or the judge
appointed by the presiding judge to supervise the grand jury, a
grand jury may make available to the public part or all of the
evidentiary material, findings, and other information relied
upon by, or presented to, a grand jury for its final report in
any civil grand jury investigation provided that the name of
any person, or facts that lead to the identity of any person who
provided information to the grand jury, shall not be released.
Prior to granting approval pursuant to this section, a judge
may require the redaction or masking of any part of the
evidentiary material, findings, or other information to be
released to the public including, but not limited to, the identity
of witnesses and any testimony or materials of a defamatory
or libelous nature.

34
 be applied retroactively. (See Legislative History, Exhibit W to Writ. Pet. at

396-408.) The primary purpose of passing this statute was to ensure that

evidentiary materials supporting a grand jury's report would be available to

avoid wasted effort replicating grand jury investigations and to substantiate

grand jury reports. (Id. at 396-98.)

In the case at bar, it is clear that the grand jury conducting the

jailhouse informant investigation (and the judge presiding over it) intended

to make its evidentiary materials available for future litigants, presumably

for the purpose of facilitating their investigations and avoiding wasted

efforts replicating the grand jury investigation.. In fact, according to the

special counsel appointed to assist the Grand Jury in the jailhouse informant

investigation, the material was indexed and preserved separately from other

materials precisely so it could be accessed easily by litigants.

Although section 929 places the gate-keeping authority for

disclosure in the hands of the grand jury, it seems evident that the grand

jury investigating the jailhouse informant scandal exercised this gate-

keeping power and chose to make these materials available to future

litigants. Although section 929 had not yet been enacted when this grand

jury was dissolved, the basic perquisites of the law are met- the Los

Angeles County Grand Jury intended to disclose the material and the

Presiding Judge sought to limit the scope of the disclosure to protect those

involved in the proceedings (by issuing a standing order to control

disclosure). Thus, at some level, application of section 929 to Petitioner's

case would not even be a retroactive application of the law, but rather a

direct application of the elements of the law to Petitioner's current request:

The elements are met since section 929 does not require the grand jury to

have made the decision to disclose the materials after 1998 (when the law

35
 was passed), but only that it made a decision to disclose the materials.

Even if this is construed as a retroactive application of section 929,

section 929 can and should be applied retroactively. See People v. McAlister

(Cal.Ct.App. 1976) 54 Cal.App.3d 918, 925. There are three factors that

must be considered in deciding whether to apply a law retroactively: (1) the

purpose to be served by the new law, (2) the extent of reliance on old

standards, and (3) the effect on the administration of justice that retroactive

application would have. Id.

Here, aI1 of these factors weigh in favor of retroactive application of

section 929. The first factor (the purpose of the rule) is by far the most

important. Id. Section 929's purpose was to facilitate the work of watchdog

grand juries in correcting public abuses by allowing them to substantiate

their findings and to avoid wasted effort replicating grand jury

investigations. (See Legisiative History, Exhibit X to Writ Pet. at 396-398.) -

Release of the jailhouse informant grand jury materials to Mr. Goldstein

would further both of these purposes by (1) helping substantiate the

evidentiary record in a civil rights lawsuit that is focused on remedying the

exact same abuses that the grand jury investigation focused on and (2)

avoiding wasted effort replicating the grand jury's investigation.

The second factor (the extertt of reliance on old standards) also

weighs in favor of disclosure. The witnesses who appeared before the

jailhouse informant grand jury did not adversely rely on old standards.

These witnesses' expectations of secrecy will not be being thwarted since

the material would be being disclosed under a protective order. Moreover,

the Grand Jury and presiding judge in 1990 clearly thought that they did

have the power to make these materials available for future litigants (since

the way the materials were organized demonstrate an intent and awareness

36
@

that the materials could be disclosed for future use), so these witnesses

could not have detrimentally relied on the expectation that the materials

would not be made available to future litigants.

Finally, the third factor (the effect on the administration of justice)

also weighs in favor of disclosure in this situation since the materials will

actually be used to help facilitate the presentation of the full evidentiary

record to the court in Goldstein's civil rights case and it would not be

particularly burdensome for the superior court to make these materials

available to Goldstein.

Moreover, allowing the release of these materials to Goldstein would

support the legislative intent underlying section 929-facilitating the

correction of governmental malfeasance by allowing watchdog grand juries

to disclose evidentiary materials supporting their reports and

recommendations. 18(See Legislative History, Exhibit X to Writ. Pet.. at

396-398.) Goldstein's civil rights case seeks to redress precisely the same

governmental abuses that the relevant grand jury investigation was focused

on: the misuse ofjailhouse informants leading to wrongful convictions. It

is inconceivable that the grand jury concluding the most comprehensive

investigation ever undertaken of the misuse ofjailhouse informants would

be reduced to a dead letter upon its conclusion- that all of the carefully

preserved and indexed fruits of this Grand Jury's investigation would be

forever locked away and made inaccessible for use in combating the wrongs

_8Penal Code Section 939.1 bolsters this understanding of the

legislative scheme. It allows for public grand jury sessions where a grand jury
investigation "affects the general public welfare, involving the alleged
corruption, misfeasance, or malfeasance in office or dereliction of duty of
public officials or employees or of any person allegedly acting in conjunction
or conspiracy with such officials or employees in such alleged acts."

37
 the Grand Jury labored to expose.

In line with the requirements of section 929, Goldstein is willing to

stipulate to a protective order that would prevent the release to persons

outside of his civil rights case of the "name of any person, or facts that lead

to the identity of any person who provided information to the grand jury,"

Penal Code § 929, except to the extent necessitated by use of the evidence

at trial. Notably, almost all of the release of this information would occur at

Goldstein's trial would be authorized by Penal Code section 924.2, since it

would be being used as a basis to verify the accuracy and troth of the

defendants and other witness (the grand jury testimony of available

wimesses would be hearsay and thus could only be used for impeachment or

refi'eshing recollection).

IV. REGARDLESS OF WHETHER THE CALIFORNIA

SUPERIOR COURT HAS THE POWER TO GRANT
GOLDSTEIN ACCESS TO THE GRAND JURY MATERIALS,
THE APPELLATE COURT'S ORDER SHOULD BE
AFFIRMED TO THE EXTENT THAT IT DIRECTS THE
SUPERIOR COURT TO COOPERATE WITH THE FEDERAL
COURT BY REVIEWING THE MATERIALS AND
PREPARING A STATEMENT

As the County itself admits, a federal court may order disclosure of

state grand jury materials under federal law, even if it is deemed

inappropriate under state law. (County Counsel Opening Br. at 20-23.) The

requirement that a litigant first attempt to obtain disclosure of grand jury

materials through state court channels "does not give the state courts a veto

over disclosure in [a] federal civil rights case." Socialist Workers Party v.

Grubisic (7 _ Cir 1980) 619 F.2d 641,644. All federal case law of which

Goldstein is aware supports the power of the federal court to override state

38
 grand jury secrecy laws for the purposes of a federal proceeding.19

This Court can, and should, in addition to affirming the court of

appeal's decision on state law grounds, order the state court to review the

materials and apply the Douglas Oil test. Alternatively, .this Court can

require the state court to commence a review of the materials to make

findings on the issue of the need for secrecy so that the federal court can

conduct the Douglas Oil balancing test.

Since his first letter to the Superior Court, Goldstein has requested

the Superior Court either disclose the grand jury materials or make findings

regarding the need for secrecy so that the federal court would be in a better

position to apply federal law governing disclosure of the materials.

The appellate court ordered the superior court to cooperate with the

federal court by reviewing the grand jury materials and creating a written

statement assessing the specific secrecy concerns raised by the materials.

This propriety of this portion of the appellate court's decision has not been

raised as an issue for review. The state court clear has a duty to cooperate

19 County Counsel continues to misstate the law in this regard, claiming

that "there is minority U.S. Circuit Court of Appeals authority suggesting,
as a matter of federalism, that a federal court seeking state court's Grand
Jury materials lacks jurisdiction to compel production." (County Counsel
Br. At 22). County Counsel cities to Camiolo v. State Farm (3_aCir. 2003)
334 F.3d 345,357-60 for this claim. But this is absolutely not what Camiolo
holds; instead Camiolo holds that a federal court litigant mustfirst approach
the state court when seeking access to state grand jury materials. Id. at 359.
In Camiolo the court explicitly left open the question of whether a federal
court may overrule a state court's refusal to disclose grand jury materials-
the issue was not directly presented in that case. Id. 358-59. However,
Camiolo does cite to the numerous decisions holding that the federal courts
have this power. Id. at 357. Goldstein has pointed out this mistake in
County Counsel's reading of this case in briefing before the appellate court
and in Goldstein's Answer to the Petition for Review directed to this court.

39
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with the federal court in carrying out the implementation of federal law.

See, e.g., Estate of Lindquist (1944) 25 Cal.2d 697, 704-05. Indeed, this

duty to cooperate in enforcing federal law could well be seen as an

independent source of authority for the superior court to disclose grand jury

materials to federal litigants, such as Goldstein, using federal standards. The

appellate court opinion should be upheld to the extent that it orders the state
court to review the materials under federal law in order to facilitate

disclosure by the federal court.

CONCLUSION

For the foregoing reasons Goldstein requests that the appellate court

decision be upheld. If this Court rejects the appellate court's holding that

the trial court has inherent authority to release the grand jury materials at

issue, Goldstein requests that this Court find that statutory authority exists

under Penal Code sections 924.2 and 929 to grant this request.

Finally, regardless of the this Court's holding in vis-a-vi the power of the

state court to release these grand jury materials, Goldstein requests that this

Court hold that the state trial court is required to cooperate with the federal

court in reviewing the materials and releasing them to the extent demanded

by federal law.

DATED: December 7, 2007 Respectfully submitted,

KAYE, McLANE & BEDNARSKI, LLP

By:

Attorneys
Thomas

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 CERTIFICATE OF WORD COUNT

The text of this Answer Brief consists of 11,579 words as counted by the

Corel Wordperfect word-processing program used to generate it.

DATED: December 7, 2007

MATTHEW N.

41
 PROOF OF SERVICE

I I, Veronica Aguilar, declare that I am a resident or employed in

2 Los Angeles County, California; that my business address is KAYE,

3 McLANE & BEDNARSKI, LLP, 128 North Fair Oaks Avenue, Pasadena,

4 California 91103; that I am over the age of eighteen years; that I am

5 not a party to the above-entitled action; that I am employed in the

6 Law Offices of KAYE, McLANE & BEDNARSKI, whose partners are members

7 of the Bar of the United Stabes District Court for the Central

8 District if California, and at whose direction I served the:

10 Consolidated Answer Brief On The Merits

11

12 On December 7, 2007,following ordinary business practice, service was:

13 [ ] Placed in a closed IX] By hand- IX] Placed in a sealed

envelope, for delivery addressed envelope for
14 collection and as follows: collection and mailing
interoffice delivery Theresa Traber ONLY via United States
15 addressed as follows: Mail, addressed
as follows:
16
[ ] By facsimile as follows: [ ] By electronic mail:
17

18
*SEE SERVICE LIST ATTACHED*
19

20 This proof of service is executed at Los Angeles, California, on

21 December 7, 2007. I declare under penalty of perjury that the

22 foregoing is true and correct to the best of my knowledge.

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25
:a Aguilar
26'

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 SERVICE LIST
1
Theresa M. Traber
2 Traber & Voorhees
128 N. Fair Oaks Avenue, Suite 204
3 Pasadena, CA 91103
(Co-Counsel for Petitioner Thomas L. Goldstein)
4
Belinda R. Mayes, Esq.
5 Principal Deputy City Attorney
OFFICE OF THE CITY ATTORNEY
6 333 West Ocean Boulevard, Ii th Floor
Long Beach, CA 90802-4664
7 (Attorney for Real Parties in Interest
the City of Long Beach and Logan Wren)
8
Thomas J. Feeley, Esq.
9
LAW OFFICES OF THOMAS J. FEELEY, P.C.
10 600 Wilshire Blvd., Suite 900
Los Angeles, CA 90017
11 (Attorney for Real Party in Interest William McLyman)

12 Michael M. Peters, Esq.

TAUBMAN, SIMPSON, YOUNG & SULENTOR
13 One World Trade Center, Suite 400
P.O. Box 22670,
14 Long Beach, CA 90801
(Attorney for Real Party in Interest John Henry Miller)
15

16 Peter J. Ferguson, Esq.

FERGUSON, PRAET & SHERMAN
17 1631 East 18 th Street
Santa Aria, CA 92705-7101
18 (Attorney for Real Party in Interest William Collette)

19 John J. Collins, Esq.

Collins, Collins, Muir & Stewart, LLP
20 I!00 E1 Centro Street
South Pasadena, CA 91030
21
(Attorney for Real Parties in Interest Los Angeles County,
22 John Van de Kamp, and Curt Livesay)

23 Gordon W. Trask, Principal Deputy County Counsel

648 Kenneth Hahn Hall Of Administration
24 500 W. Temple Street
Los Angeles, CA 90012-2713
25 (Attorney for Los Angeles County and the Los Angeles
County Grand Jury)
26

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 SERVICE LIST
1
D. Brett Bianco
2
Court Counsel
3 Los Angeles Superior Court
Iii N. Hill Street, Room 546
4 Los Angeles, CA 90012-3014
(Attorney for Los Angeles County Superior Court)
5
Honorable Peter Espinoza
6 Los Angeles Superior Court
Department 123
7 210 W. Temple Street
Los Angeles, CA 90012
8
Clerk
9
Second Appellate Court, Division 3
10 300 N. Spring Street
Los Angeles, CA 90012
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