Tanya Treadway vs. Pain Relief Network: No First Amendment for Activists?
Radley Balko has a new article at Slate on the grand jury investigation of Siobhan Reynolds of the Pain Relief Network. Tanya Treadway is the relentless federal prosecutor pursuing her, apparently for exercising her First Amendment rights in the trial of pain doctor and his wife charged with drug trafficking. The fight started when the prosecutor sought a gag order against Ms. Reynolds, lost, and then opened a grand jury investigation and subpoenaed everything but the kitchen sink.
When Reynolds appealed the subpoena, the United States Court of Appeals for the 10th Circuit upheld it, as well as the seal on everything related to it. While we can't read the ruling, the justification for the seal is ostensibly the secrecy afforded to grand jury investigations. But that secrecy is supposed to protect the people the grand jury is investigating. In this case, the person being investigated wants it made public. Reynolds feels the subpoena is harassment and wants to shed some light on it. Treadway and the courts are hammering Reynolds with the very secrecy that is supposed to protect her. [More...]
Under federal law, witnesses may talk about their grand jury testimony. The non-disclosure rules apply to the grand jurors, stenographers, interpreters, prosecutors and law enforcement. The ABA on the purpose of grand jury secrecy:
Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation.
The Supreme Court has denied cert in Reynolds' case which means she must comply with the subpoena. The cost has resulted in her shuttering the pain clinic.
Radley Balko writes:
Reynolds had to get special permission just to share information about her case with the Institute for Justice and the Reason Foundation (which publishes Reason magazine, my employer). When the organizations submitted an amicus brief on her behalf, that brief was also sealed, even though it's based on publicly available information. New York Times Supreme Court reporter Adam Liptak was able to read a portion of the sealed 10th Circuit ruling on the sealing of the Reason and Institute for Justice briefs. In November, Liptak reported that the court said one of its reasons for keeping the brief secret was to keep IJ and the Reason Foundation from discussing Reynolds' pain advocacy agenda in public.
That's an astonishing thing to read in a federal appeals court opinion. All of the information in the brief is publicly available. Yet the courts are preventing Reynolds and these organizations from releasing the briefs or the court rulings, at least in part to stifle public discussion about Reynolds' criticism of government policy.
From Adam Liptak's NY Times article. How sweeping was the subpoena?
It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”
Is it prosecutorial payback for her activism?
Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”
He quotes her lawyer:
“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”
Here is Reynolds' (court-redacted) Petition for Writ of Certioriari. On the sealing questions:
3. Whether the government may meet its burden of proof that it has a compelling interest in requiring the production of expressive materials and that the subpoenaed materials are substantially related to the grand jury investigation entirely through ex parte, in camera submissions?
4. Whether the First Amendment or Rule 6(e) of the Federal Rules of Criminal Procedure limit the court's authority to seal the entire docket of ancillary grand jury proceedings imposing sanctions for contempt?
So Tanya Treadway wins another round, and the First Amendment and everyone else, particularly activists of all stripes, lose. Something is upside-down here.
- NYTimes: When is a Pain Doctor a Drug Pusher?
- The DEA Wants to Keep You in Pain
- Pain Doctors Under Fire
- Even a Bush Appointee Can Take Only So Much (A Talkleft Diary by JamesTX on Treadway and the Pain Relief Network)
As for the Schneiders, Dr. Stephen Schneider was sentenced to 30 years, his wife to 33 years, and they were ordered to forfeit a million dollars (The Government had sought life sentences and $4 million forfeiture.). The federal public defender has been appointed for his appeal, but the government is fighting Mrs. Schneider's request for court appointed counsel.
Update: I just found the subpoena and Motion to Quash unredacted online. I won't post the link but it makes it even more curious that the court sealed everything when so much is already out there.
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