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Allowing trial judges to seal search warrants issued in the course of a grand jury proceeding without explanation goes against the principle of open courts, an attorney representing a Pittsburgh television station said in an argument to the Pennsylvania Supreme Court.
Walter DeForest of DeForest Koscelnik Yokitis & Berardinelli, arguing on behalf of his client, TV station WPXI, in In re 2014 Allegheny County Investigating Grand Jury, told the justices that failing to perform any test to weigh whether the search warrant should be sealed was problematic, and courts needed to perform some form of balancing test, such as the "experience and logic" test or the "government interest" test, before sealing the record.
"Otherwise the court could just walk in, not explain what they're doing and that's fine," DeForest said. "That's antithetical to the basis for which courts should engage in secrecy."
The arguments come at a time when courts in Pennsylvania have been wrestling broadly with grand jury secrecy, particularly in the wake of the ground-breaking statewide investigating grand jury into allegations of sexual abuse at numerous Catholic diocese across the state, which caught international attention and led to several similar investigations across the nation.
In 2014 Allegheny County Investigating Grand Jury, WPXI is seeking access to a search warrant the court had issued related to allegations of sexual relations between faculty and students at Allegheny County's Plum High School, which became public in 2015. The station also sought the order that sealed the affidavit of probable cause supporting the search warrant. Notably, WPXI was not seeking access to the supporting affidavit, or any attachments identifying the suspected juvenile victims.
Justice David Wecht questioned DeForest whether allowing access to the requested records would create a precedent that was a "door opener" allowing access to more and more grand jury records.
Justice Kevin Dougherty said grand jury secrecy rules hold that evidence shown to the grand jury cannot be made public, and releasing the search warrant would essentially reveal what evidence is being placed before the grand jury.
DeForest responded that courts would still need to review these issues as they come up, but there should be some balancing test that the court needs to perform and place on the record. DeForest also drew a distinction between a search warrant and an affidavit, and said search warrants are judicial records, which are presumed to be accessible to the public.
DeForest further noted that the document had already been posted online. Obtaining the document through the proper court channels, he said, would ensure that the information they would be reporting was correct and it could further help insulate the company against liability.
Michael Streily of the Allegheny County District Attorney's Office, who is seeking to have the justices uphold a Superior Court decision that allowed the documents to be sealed, said the issue came down to the discretion of the grand jury supervising judge.
Although the search warrant was not initially sealed, Streily said, the court recognized that as a mistake once WPXI requested the documentation, and it was well within its discretion to seal the documents when it realized the materials should have been sealed initially.
"The judge saw it and said, 'This shouldn't go out,'" Streily said.
Justice Christine Donohue focused several questions on why a search warrant was issued to begin with, when the grand jury could have issued a subpoena, which is a type of document that is not presumed to be a public document.
"The tool the grand jury chose is one that immediately becomes public," Donohue said. "But for that, Mr. DeForest would not be raising this issue."
Streily said regardless of the form, it should have been sealed because of the information that was on it.