08:32 PM

Josh Wolf likely headed to jail

By Richard Koman for SiliconValleyWatcher.com

The Justice Department wants to put Josh Wolf back behind bars, the freelance videographer reported on his blog last week. Wolf - who was sentenced to jail by a US District Court for refusing to release video of a protest that involved the burning of a San Francisco police car - was released on bail at the beginning of September by a panel of the Ninth Circuit Court of Appeals.

A separate panel - a more conservative panel than the one who released him, notes the Huffington Post's Steven Kraus - rejected his appeal from the District Court's contempt order.

Based on that order, the US Attorney now warns that the clock is ticking on the grand jury investigating the car burning and that Wolf should be returned to jail to compel him to turn over his material.

In their Motion to Revoke Bail (PDF), government lawyers argue:

The clock is ticking on this grand jury's term of service and thus the coercive intent behind the recalcitrant witness statute is lessened with each passing day. ... Wolf's interest has lessened because each of his claims was rejected on appeal. In fact, this Court's opinion brings the total number of [courts] to unequivocally reject Wolf's claims to six

Having reviewed the Court's decisions, it seems to me exceedingly likely that Wolf is headed back to jail. As the government notes, the point of the contempt order is to get him to turn over the goods. There's not much coercion if he's in jail for the duration of the grand jury.

The panel that released Wolf on bail did so pursuant to the recalcitrant witness statute (28 USC § 1826). Under that statute, bail may be granted pending appeal. The bail order said that the bail would be in effect until the appeal is decided by the "next motions panel," which rejected Wolf's appeal on Sept. 8. So the govenment's motion isn't at all surprising; it's the appropriate next step after the appeal decision.

Wolf's next step then is to appeal to the full Ninth Circuit Court sitting en banc - that is, all the judges, not just a three-judge panel. The question is whether the Court will consider this nothing more than frivolous delay. If so, they may well revoke the bail during that appeal. Another alternative would be to appeal to the US Supreme Court.

The government notes:

[I]f bail is not revoked, Wolf will have - and no doubt take - 45 days to file a petition for rehearing of this Court's opinion after the mandate issues. (Citation omitted.) Further litigation in form of a petition for certiorari are [sic] certain to prolong Wolf's release for an undeterminable time. .... Revoking bail is ... consistent with the purpose of the recalcitrant witness statute, which is to coerce a witness who has unlawfully refused to comply with a lawful grand jury subpoena to comply.

The interesting issue - one that the Supreme Court could conceivably, though unlikely, be interested in - is whether the feds were trying to do an end-run around California's Reporter's Shield law. When we first reported about Wolf (Josh Wolf is in jail), we noted:

[I]sn't the burning of a SF cop car a local matter? It is - and it's one that apparently the SF DA didn't bother to investigate. So how did Josh Wolf wind up in federal court?

The government's argument is that the SFPD receives federal terrorism dollars from Washington, therefore crimes against the police are crimes against the United States

That's a very shaky argument. It essentially says that the Justice Dept. can step in at any time and say that any crime against any local agency that receives any federal funds - and the Dept. of Homeland Security has been littering the country with antiterrorism funds (there are, for instance, over 8,000 target sites in Indiana, 40% more than in New York).

But the Ninth Circuit disagreed, saying it would not consider whether the grand jury's investigations were proper. The Supreme Court is unlikely to feel differently. Indeed, according to the appeals court, the high court has already spoken. "The Supreme Court specifically cautioned against the courts making such determinations. Branzburg 408 US at 705-6."

So, Josh Wolf's options are running out. It's a federal case; there is no reporter's shield. It's unclear if he would even qualify under the California Shield. It's also unclear that anyone would be hurt by his turning over of the material. No confidential sources are counting on his silence. He's made his point and been rebuffed. It would be great if the Supreme Court took it up. But is he willing to spend some nine months in jail (the grand jury expires in June) to find out whether the Court will grant cert? It's extremely unlikely they will.

It's time to move on. Turn over the video and take a pass on another trip to Dublin.