Tuesday, August 4, 2009

The Grand Jury Subpoena and Its Proper Use

There's an interesting question of law bouncing around the Hinds County Circuit Courthouse right now, and I want everyone's take on it. Here's what's happening:

The Hinds County District Attorney's Office has been issuing grand jury subpoenas to obtain documents in cases in which indictments are already pending. (Meaning the documents sought are not being sought for the purpose of presentation to the grand jury.) From what I can tell, this has been the local practice for time immemorial. The effect of doing this is an end run around Rule 2.01 of the Uniform Rules of Circuit and County Court Procedure, although perhaps not intentional. Rule 2.01, in essence, prevents lawyers in criminal matters from issuing subpoenas duces tecum without getting permission from the court, unless the things sought are to be produced at a hearing. Frankly, I'm at a loss as to why we don't follow just Rule 45 in criminal matters as well, but that's for another day.

The question is this: Is it proper for a prosecutor to obtain documents via grand jury subpoena once an indictment has already been returned in a case?

This issue first arose before Judge Priester (no ruling yet) in the last couple of weeks, and now it appears as though it's made an appearance in the Irby case. Kingfish has been doing a great job of covering that case, and has a post on the contretemps over Stuart Irby's medical records, which I'm thinking were obtained with a grand jury subpoena after the indictment. My hunch is based on the line "The State apparently obtained Mr. Irby's medical records through post-indictment measures," which is found at the top of Page 2 of Lisa Binder's Response to Motion to Preserve Testimony on behalf of Stuart Irby. (Thanks to Kingfish for posting the Response.)

Since I'm referencing URCCC 2.01, I thought it'd be important to reproduce it here in its entirety:


A. Except as set forth below, the procedures for subpoenas in both civil and criminal matters shall conform to Rule 45 of the Mississippi Rules of Civil Procedure. This rule shall not apply to proceedings before a grand jury.

B. Subpoenas Duces Tecum in Criminal Cases for Production at Trial or Hearing. A subpoena in a criminal case may, without a motion or hearing, require the production of books, papers, documents or other objects at the date, time and place at which the trial, hearing or proceeding at which these items are to be offered in evidence is scheduled to take place.

C. 1. Subpoenas Duces Tecum in Criminal Cases for Production other than at Trial or Hearing. No subpoena in a criminal case may require the production of books, papers, documents or other objects at a date and time or place other than the date, time and place at which the trial, hearing or proceeding at which these items are to be offered in evidence is scheduled to take place, unless the court has entered an order pursuant to this rule authorizing the issuance of such subpoena.

2. Motions; Service; Opposition. A hearing on a motion for the issuance of a subpoena duces tecum shall be set at the time the motion is filed and served. The hearing shall be set no earlier than ten (10) days after filing and service of the motion. Except for good cause shown, all motions for subpoenas duces tecum shall be served on: (1) the custodian of the books, papers, documents or other objects which would be subject to the subpoena; (2) all parties; (3) all persons whose books, papers, documents or other objects would be subject to the subpoena; and (4) all persons who may have a claim that privileged material would be subject to the subpoena. Any party to the action or other interested person may file an opposition or response.

3. Supporting Affidavit or Declaration. Motions seeking subpoenas duces tecum under this rule shall be supported by an affidavit or declaration stating facts which establish: (1) the documents or objects sought are evidentiary and relevant; (2) the documents or objects sought are not otherwise reasonably procurable in advance of the trial, hearing or proceeding by exercise of due diligence; (3) the moving party cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) the application is made in good faith and is not intended for the purpose of general discovery.

4. Immediate Lodging with Court. Any subpoena duces tecum issued under this subsection shall be returnable to and the items sought thereunder produced before the court. In the event that materials subject to a subpoena are received by a party, an attorney, or an attorney's agent or investigator directly from the subpoenaed person, any person receiving such materials shall immediately notify the court and shall immediately lodge such materials with the court. The materials shall not be opened, reviewed or copied by a recipient without a prior court order. D. Sanctions. Violation of this rule may provide a basis for sanctions.

[Adopted effective May 1, 1995; amended April 18, 2002.]


Kingfish said...

Ms Binder is being cute. Its not like the state has not interest in Mr. Irby's medical condition after indictment and thus has a right to his records to some degree.

Matt Eichelberger said...

Ms. Binder cites 45 CFR 164.512 (part of HIPAA) in her response. Here's a part I think is relevant:

(f) Standard: Disclosures for law enforcement purposes. A covered
entity may disclose protected health information for a law enforcement
purpose to a law enforcement official if the conditions in paragraphs
(f)(1) through (f)(6) of this section are met, as applicable.
(1) Permitted disclosures: Pursuant to process and as otherwise
required by law. A covered entity may disclose protected health
(i) As required by law including laws that require the reporting of
certain types of wounds or other physical injuries, except for laws
subject to paragraph (b)(1)(ii) or (c)(1)(i) of this section; or
(ii) In compliance with and as limited by the relevant requirements
(A) A court order or court-ordered warrant, or a subpoena or summons
issued by a judicial officer;
(B) A grand jury subpoena; or
(C) An administrative request, including an administrative subpoena
or summons, a civil or an authorized investigative demand, or similar
process authorized under law, provided that:
(1) The information sought is relevant and material to a legitimate
law enforcement inquiry;
(2) The request is specific and limited in scope to the extent
reasonably practicable in light of the purpose for which the information
is sought; and
(3) De-identified information could not reasonably be used.

I would assume that the records were obtained via grand jury subpoena, as the docket shows no subpoena granted in accord with URCCC 2.01. And that's the reason for the post. Again, is it proper for a prosecutor to use a grand jury subpoena to obtain information post-indictment?

Kingfish said...
This comment has been removed by the author.
Anonymous said...

Hey Kingfish, what makes you think that Ms. Binder is subject to sanctions. The way I see it, ADA how had the grand jury subpoena issued is the one with the problems.

Matt Eichelberger said...

KF - I posted the docket above, although I don't think I responded accurately to your point. To clarify, a filing is "sealed" by motion of a party and order of the court. The motion to seal, and the resulting order, are listed on the docket upon filing. The order itself is further published in the court's minutes.

That's what makes me think there was no subpoena duces tecum here. And Ms. Binder alleges that "post-indictment measures" were used to get Mr. Irby's medical records. That's leads me to think she's talking about a grand jury subpoena.