The opinion of the court was delivered by: SIRICA
This criminal action charges seven individuals with conspiracy, the unlawful interception of oral and wire communications, and burglary in violation of several United States Code and District of Columbia Code provisions. According to the indictment, the alleged offenses occurred principally at the Democratic National Committee headquarters then located at 2600 Virginia Avenue, N.W., in Washington, D.C. Trial in this case is scheduled to begin on January 8, 1973.
The instant matter is somewhat ancillary to the central proceedings herein, and comes before the Court on motions to quash a subpoena duces tecum directed to the Washington Bureau Chief of the Los Angeles Times newspaper.
The subpoena requires this person to produce materials in his possession relating to an interview with one Alfred C. Baldwin, III conducted by representatives of the newspaper. The facts leading to the issuance of the subpoena may be simply stated.
In its October 5, 1972, Morning Edition, the Los Angeles Times printed four articles headlined, "Inside Watergate, Bugging Witness Tells of Incident" under the bylines of Jack Nelson and Ronald J. Ostrow, staff writers, "Baldwin Says GOP Unit Disowned Him" under the byline of Jack Nelson, "Gave Memos to Official Baldwin Says" under the bylines of Jack Nelson and Ronald J. Ostrow, and "An Insider's Account of the Watergate Bugging" by Alfred C. Baldwin, III as told to Jack Nelson. Copies of these articles are part of the record in this case. These news stories purport to contain information procured from Alfred C. Baldwin, III "in more than five hours of tape-recorded interviews with the Times."
The paper identified Baldwin as one who had "monitored the telephone tap at the Democratic headquarters last May and June from a listening post in the Howard Johnson Motel across the street from the Watergate."
The articles generally portray Mr. Baldwin as an associate of several of the defendants in this case, who participated with them in at least some of the activities cited in the indictment. Materials in the record indicate that Mr. Baldwin testified before the grand jury that returned the indictment herein, and that he will be a key Government witness at the trial.
On October 11, 1972, defendant George Gordon Liddy filed a pretrial motion for a subpoena as authorized by Rule 17(c) F.R. Cr. P. ordering Alfred C. Baldwin, III to produce all documents, notes, tape recordings and writings in his possession relative to his exclusive interview with the Los Angeles Times. The accompanying memorandum of points and authorities stated that "Baldwin has been granted immunity in exchange for his testimony, thus all of his comments regarding the subject of this prosecution are evidentiary and relevant to the defense."
The memorandum further noted that the full text of Mr. Baldwin's statements is essential to the defendants' proper preparation for cross-examination. Defendants McCord, Barker, Martinez, Sturgis and Gonzalez joined in the motion. In its response to defendant Liddy's motion, the United States filed an affidavit sworn to by Mr. Baldwin, stating that he, Baldwin, no longer had the materials sought by defendants. Paragraphs 2, 3 and 4 of that affidavit read: "2. I do not have any documents, notes, tape recordings or writings in my possession or under my control relative to my interview with the Los Angeles Times newspaper. 3. I did receive the tape recordings of my interview with Jack Nelson of the Los Angeles Times on October 4, 1972. 4. Thereafter, on or about October 7, 1972 I either erased or destroyed the tapes pursuant to the advice of my attorney John Cassidento."
At a hearing on pretrial motions held October 25, 1972, counsel for the defendant E. Howard Hunt, Jr., noting the destruction of Mr. Baldwin's tapes, orally moved that a subpoena duces tecum issue to the Los Angeles Times directing production of the materials in its possession relating to the Baldwin interview. The Court granted that motion, although no subpoena issued at that time. The matter was discussed subsequently at the pretrial conference held December 4, and at the Court's request, supplemental memoranda were filed in behalf of the defendants and the United States. Thereafter, on December 14, 1972, the Court signed an order authorizing the service of subpoenas duces tecum to the Los Angeles Times Bureau Chief, John Lawrence, and staff writers Jack Nelson and Ronald J. Ostrow. As noted above, Messrs. Lawrence, Nelson, and Ostrow, through counsel, filed motions to quash.
A hearing on the motions was held on December 19, 1972, return date of the subpoena to Mr. Lawrence. For the reasons stated below, the motions to quash are denied.
The purpose and importance of subpoenas duces tecum and subpoenas in general to the judicial process are well known. The authority of courts to subpoena witnesses and evidence is a corollary of the duty to testify at judicial proceedings. This duty to come forward with information relevant to the controversy at hand has been recognized as a fundamental instrument of justice since the earliest days of Anglo-American law.
The subpoena here in question was issued pursuant to the specific authority of Rule 17(c), F.R. Cr. P. The text of subsection (c) reads:
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
The question arising here is whether some First Amendment privilege sanctions a newspaper's refusal to produce evidentiary material in its possession relevant to a criminal trial.
At the outset it is important to note what peculiar facts obtain here and what matters are not at issue. The subpoena is directed to a newspaper representative in an attempt to secure any evidence in his possession of an impeaching nature relative to the anticipated testimony at trial of Alfred C. Baldwin, III.
By its terms, the subpoena calls for:
All papers, recordings, transcripts or other documents or objects, whether originals or copies, in the possession, custody or control of The Los Angeles Times and/or the Times Mirror Company which embody or relate to information provided to Jack Nelson, Ronald J. Ostrow or any other representative of The Los Angeles Times and/or the Times Mirror Company by Alfred C. Baldwin, III or his representative on or about August, September and October 1972 concerning any and all activities and events described in the various articles appearing in The Los Angeles Times on October 5, 1972 including, but not limited to, the article at page 7, Part II, of the Morning Final Edition, under the title, "An Insider's Account of the Watergate Bugging."
At the December 19 hearing, counsel disagreed concerning application of the subpoena's language to specific materials and documents. Based on the representations of counsel that the Los Angeles Times has no documents given to its reporters by Baldwin, and that the only materials containing verbatim statements of Baldwin are recorded tapes of the interview, the Court interpreted the subpoena to Mr. Lawrence as demanding just those tapes. Claims that the subpoena requested material privileged by virtue of an attorney-client relationship or work product rule, therefore, are not at issue here. At the same hearing on the 19th the time reference of the subpoena was shortened from August, September, and October, 1972, to the dates of September 28, 1972 through October 5, 1972 inclusive. The Court understands other allegations concerning technical aspects of the subpoena ...