The Washington Post and the New York Daily News asked a special federal court yesterday to lift the secrecy it has imposed on a dispute involving evidence against former secretary of labor Raymond J. Donovan and his co-defendants.
"Especially in a case like this, secrecy breeds distrust," the newspapers said in a brief accompanying their motion. "Certainly the public has a right to know that there is a dispute over the use of potentially critical evidence at the trial of a former Cabinet officer, a right to know how that dispute is resolved and a right to know the reasons why it is resolved one way or the other."
The pleadings were filed at the U.S. Circuit Court of Appeals here with a special three-judge panel that is in charge of appointing independent counsels (formerly special prosecutors) under the Ethics in Government Act.
Headed by Senior Circuit Judge George E. MacKinnon, the court is also in charge of receiving the reports of the counsels and taking custody of the evidence compiled in their investigations.
The evidence at issue in the Donovan case consists of federal grand jury testimony and interviews with Donovan and other witnesses that were taken during special prosecutor Leon Silverman's 1982 investigation of allegations that Donovan had ties to organized crime. Silverman found "insufficient credible evidence" to warrant Donovan's prosecution for any federal crime. But New York state prosecutors, working under Bronx District Attorney Mario Merola, subsequently obtained the special court's permission to present some of the "Silverman materials" to a Bronx grand jury.
As a result, Donovan and nine other men were indicted in 1984 on state charges of fraud and grand larceny involving a $186 million New York subway project undertaken in 1978 by Donovan's company, Schiavone Construction Co. Their trial is to begin in Bronx Supreme Court Sept. 2.
Recently, however, it was disclosed that the special court here was balking at a prosecution motion to authenticate the Silverman materials so they could be offered into evidence at the New York trial.
The newspapers' lawyers pointed out that the proceedings thus far have been conducted in secrecy. After almost two years of pretrial maneuvering, there has been "extensive disclosure of the underlying grand jury materials to the Bronx district attorney, to the defendants and to the public," the newspapers' petition said. They said, however, that they were asking only for access to the proceeding involving Merola's motion, not to the evidence itself.
"The Ethics in Government Act was enacted, and this court created," the brief stated, "to restore the public's confidence that evidence of wrongdoing by high government officials will be fully and fairly pursued. The public's trust in the integrity of the government's handling of such evidence is seriously undermined if a proceeding such as this, which would normally be open to the public, is shrouded in secrecy."